New Virginia dyslexia law, small step in a big direction
ABC 13 (WVEC)
April 18, 2016

Education advocates are praising a new law that they hope will be the first of many steps to help students suffering with dyslexia.

Dyslexia is a language-based disorder. It is the most common cause of reading, writing and spelling difficulties.

According to researchers, one in five people has some form of dyslexia. For more than a year, 13News Now has been reporting how Hampton Roads’ school districts rarely screen students for the disorder -- and many teachers haven't even been taught how to recognize it.

Southwest Virginia schools make list of top financial literacy education
SWVA Today
April 14, 2016

Thirteen schools from Southwest Virginia made the top 100 list of a New York-based nonprofit that aims to bolster financial education efforts nationwide.

On Thursday, Working in Support of Education published its fourth annual list of the top 100 schools in financial education. Rankings, a press release says, were determined by an advisory board of academic and financial experts, paying particular attention to scores on a financial literacy certification test.

This year, 43 states participated in the certification program, up three from last year.

New Jersey and New York school dominated the first four spots on the list, with Virginia occupying the fifth spot with Richmond Community High School.

School board could request access to staff social media
News Leader
April 19, 2016

Employees of Staunton Schools may have to turn over access to social media accounts under a new school board policy.

The board approved guidelines for employee social media use, including what could happen if an employee is believed to have violated a law or a school board policy.

The policy states that the school board can request access to a staff member's username and password for social media accounts, if they believe the employee has violated a law or a school board policy.

The policy states that the purpose is, "if the employee's social media account activity is reasonably believed to be relevant to a formal investigation or related proceeding by the Board of allegations of an employee's violation of federal, state or local laws or regulations or of the Board's written policies."

Several recent news stories show the various ways that school systems can find themselves working to improve services for students with disabilities.  An article on the Isle of Wight school system illustrates a pro-active gathering of information from parents of students with disabilities via an online survey.  Franklin County school officials have been in a more reactive mode in responding to concerns of local parents at school board meeetings and drawing on $70,000 worth of legal services to respond to formal legal complaints.  The editorial page of the Lynchburg News & Advance recently cited a higher number of special education students and the higher costs needed to meet their needs as being among the issues in upcoming City Council elections.

These are only recent examples of an important responsibility for every school system - providing free and appropriate public education (FAPE) to students with disabilities.  As can be seen from the map below, Virginia ranks below the national average in graduation rates for students with disabilities.  
Given the importance of these issues, this week we're pleased to share with you an  excerpt of the April 2016 edition of the CEPI Education Law newsletter.  Noted legal scholar Mark Weber reviews a number of recent legal developments related to FAPE.  

Alongside education for students with individual disabilities, many school systems face challenges of meeting the educational needs of students from high poverty communities.  As many local government bodies face tough budget decisions in the next few weeks, we are also happy to share insights in our Poll Snapshot below on how willing the general public in Virginia is to pay more in taxes so that more funding can be channeled to low-performing schools in high-poverty areas. 

We hope you have a great week!

Repeated studies have shown that there are unique challenges to providing high quality education in high-poverty environments. Given that a majority of respondents see SOLs as providing equal standards and accountability to school systems across different types of communities, an interesting follow-up question is whether the public is willing to pay more in taxes in order to provide additional resources to high-poverty, low-performing schools that are working to increase student performance. A majority (63%) of respondents would be willing to pay more in taxes to do so.

There was significant variability, however, between different demographic groups.

Younger respondents were more likely to support additional resources for high-poverty, low-performing schools. Among 18-34 year-olds, almost three-quarters (73%) were willing to pay more in taxes, while that proportion dropped to 68% among 35-44 year-olds, 60% among 45-64 year-olds and 54% among those 65 or older. Likewise, minority respondents (70%) and Democrats (76%) were more likely than whites (61%) and Independents (57%) and Republicans (51%) to be willing to pay more in taxes to increase resources flowing to high-poverty, low-performing schools.

(To read the full poll, visit our website.)

The basic obligation that the Individuals with Disabilities Education Act (IDEA) imposes on states and local school districts is to provide “free, appropriate public education” (FAPE) to all children with disabilities in their jurisdiction. Since passage of the original version of the law in 1975, millions of children with disabling conditions have been brought into school and given educational opportunities. But issues still exist over the scope of schools’ obligations under IDEA to provide FAPE.

The Rowley Case
What does “appropriate education” mean? The drafters of the statute that is now IDEA apparently drew the term from a consent decree in one of the early class action cases that had relied on the Fourteenth Amendment’s Equal Protection Clause to challenge exclusion of children with intellectual disabilities from public education, PARC v. Pennsylvania. That decree required the state to provide “access to a free public program of education and training appropriate to [the] capacities” of each child in the plaintiff class. The federal act used the same term.

But neither the statutory language nor the regulations gave much guidance about what education was appropriate, apart from being special education and related services conforming to the standards of the state educational agency and furnished in accordance with an individualized education plan (IEP). In an effort to develop a standard, some courts looked to a regulation promulgated under an earlier law, Section 504 of the Rehabilitation Act, which forbids disability discrimination by federal grantees. This regulation said that grantees operating public elementary and secondary schools systems had to meet the needs of children with disabilities as adequately as the needs of other children were met. Hence, schools had to offer services that would give children with disabilities the opportunity to achieve their full potential, commensurate with the opportunity afforded children without disabilities.

In Board of Education v. Rowley, the Supreme Court rejected that interpretation as applied to the law that is now IDEA. It overturned a lower court decision that had required a school district to provide a sign language interpreter to a first-grader with a severe hearing impairment. Although the child could understand less than sixty percent of what was being said in class, she was performing better than the average child in her class and was advancing from grade to grade. The Supreme Court said that cases like PARC that had influenced Congress in writing the law had imposed no requirement greater than access to education, and that a commensurate opportunity standard was unworkable. It noted that the special education law was designed to ensure equal protection of the law for children with disabilities and pointed out that in cases concerning equal protection in education, the Court had not required equal opportunity, but only equal access. The Court also stressed the law’s emphasis on procedure and the importance of allowing deference to states’ and localities’ views of educational methods.

The Supreme Court said that in exchange for the provision of federal money, Congress did expect that states and school districts would provide services that would confer some benefit on students with disabilities. At one point it described the standard as a floor of opportunity; at another it said that it was not greater than what would make access meaningful.

Recent FAPE Developments
The Rowley case resolved the immediate dispute over the commensurate opportunity standard, but did not fully resolve the debate over what appropriate education means. Moreover, although Congress has never amended the special education law specifically to overrule Rowley, it has amended the statute’s preamble to embody a “high expectations” approach focusing on preparing children to “lead productive and independent adult lives, to the maximum extent possible.” The purpose of IDEA is now to give children “special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living.”

Last October, in O.S. v. Fairfax County School Board, the Fourth Circuit U.S. Court of Appeals took up a Virginia case in which parents of a child with multiple disabilities said that he was not being offered adequate instruction in reading, math, and writing, that he needed extended school year services, a one-on-one aide, and access to a full-time school nurse, and that the occupational therapy and speech and language services being offered were not adequate. The parents argued that in light of the amendments to IDEA and some of the language in the Rowley decision itself, the case should have been reviewed not under a some-benefit standard but under a higher, “meaningful benefit” standard.

The court rejected the argument. It said that when Congress changes a law to alter a Supreme Court interpretation, it usually does so explicitly, and that other amendments evidenced a focus on various specific matters, such as improvements in IEPs, rather than a change in the standard for appropriate education. The court mentioned decisions from other courts of appeals that appeared to adopt an elevated “meaningful benefit” standard for appropriate education, but said that the Fourth Circuit had never departed from the some-benefit approach, and that the other decisions were without support or actually employed the some-benefit standard but with meaningful benefit language. The court qualified its endorsement of the some-benefit standard by saying that more than trivial or minimal advancement was required, and said this was the way the Supreme Court in Rowley had intended the term “meaningful.” The O.S. court affirmed the determination that the child was offered an appropriate education.

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Policy and practice implications
The upshot is that the Rowley standard for appropriate education is alive and well and residing comfortably in the part of the United States that includes Virginia and its neighbor states. O.S. reinforces the some-benefit standard’s relevance to educational decision-making today. At the same time, educators should be aware that they are subject to other obligations that may require them to provide special education and related services that a surface reading of Rowley and O.S. might lead them to think would not be demanded. Educators need to be attentive to the obligation to provide services to enable children to succeed in less restrictive settings, the requirement to assess in all areas of suspected disability and provide services in all areas of identified need, and the duty to provide accommodations under Section 504 and the ADA.