A Challenge to Mass. Special Ed Due Process system

Attorney Robert Crabtree wrote:

Over the last couple of days we learned that Mitchell Chester, Ed.D., our new Commissioner of the Department of Elementary and Secondary Education ("DESE"), chose as one of his first acts in Massachusetts to invite the federal office that oversees implementation of IDEA in the states (the Office of Special Education and Rehabilitative Services in the U.S. Department of Education) to rule that our due process system - the Bureau of Special Education Appeals - violates IDEA because the hearing officers are employees of the DESE. OSEP gave him the opinion he asked for and requested that the Department submit a plan within 90 days to set out steps to remove the BSEA from its auspices. See the attached for a copy of the memo Commissioner Chester posted yesterday.

This is an issue that was addressed early in the process in Massachusetts; a bureaucratic wall was built around the agency; and for many years we have had a very workable and very professional unit of hearing officers dealing only with special education disputes. In short, the system works, and there is no practical reason to "fix it," as advocates on both sides of these cases generally agree. What the actual motivation for the new commissioner having taken this action - and so quickly in his regime - remains to be seen, but the objective is clear - he wants the BSEA out of his agency.

What the enforcement system for students' and parents' rights under IDEA will look like after this is over is far from certain. From the perspective of most practitioners at this juncture the best result would be for the current BSEA to be reconstituted as it is but in a different location, under different auspices and with sufficient funding to continue to do its work independently and professionally. There is a long and deep base of experiential and intellectual capital in the BSEA and it would be absurd and expensive to throw that away. The prospect of having to educate fresh hearing officers in each case to the complexities of special education law and substance from the ground up looms as an economic nightmare. (And, as usual, it would be those who can least afford that incremental cost who would suffer the most.) We expect that the worst of imaginable options may be what we know some other states have lived with - namely the use of independent contractors (including some who represent school districts in their practices) to hear cases.

The Commissioner has promised a collaborative process as the DESE develops a plan for the next steps over the next three months. He has also promised a "seamless" transition plan with no disruption of the resolution of special education disputes and with the needs of all parties continuing to be met. Let's hope . . .

Bob

And here is the text of the Commissioner's Memo (also supplied by Bob Crabtree):

MEMORANDUM

To: Superintendents, Charter School Leaders and Special Education Directors
From: Mitchell D. Chester, Ed.D., Commissioner
Date: January 22, 2009
Subject: U.S. Department of Education Ruling on Bureau of Special Education Appeals

In October 2008, after becoming Commissioner and reviewing the operations of the Department of Elementary and Secondary Education, I had questions about the structure for special education hearings and mediations in Massachusetts. My questions were based on my experience and knowledge of how these procedures are conducted in other states. I wrote to the United States Department of Education (USED) and asked them to evaluate our current structure in relation to the requirements of the Individuals with Disabilities Education Act (IDEA). The Office of Special Education and Rehabilitative Services of the USED responded last week and informed me that the structure for the Bureau of Special Education Appeals (BSEA) is not consistent with the IDEA and its regulations.

The letter we received from the USED, dated January 15, 2009, states that the IDEA unambiguously requires that hearing officers and mediators not be employees of the state education agency. Currently, the 18 members of the BSEA staff are all employees of the state education agency, the Department of Elementary and Secondary Education.

To be clear, the finding challenges our current structure, but does not call into question the impartiality or integrity of any of the decisions the BSEA has made. Our system for due process hearings and mediations has been and is operating in an impartial manner. No one in this Department, outside of the BSEA staff, reviews or tries to influence decisions of individual
hearing officers or mediators in ongoing cases.

The USED has given us 90 days from the date of their letter to respond with a plan that will bring us into full compliance with the IDEA. We are determined to develop a seamless transition plan for the BSEA so that the resolution of special education matters is not disrupted and the needs of students, parents, and the special education community continue to be met.

Over the next three months we will gather information about how this work is done in other states, seek input from key constituent and stakeholder groups, consider our options, and present a plan to USED. Until a final decision is made, the BSEA will continue to operate as it has, issuing valid and impartial hearing decisions and assisting parties in resolving their disputes.

If you have any questions, please contact Associate Commissioner Jeffrey Wulfson at 781-338- 6500

Supreme Court to hear school strip search case

As reported here, the U.S. Supreme Court has agreed to hear Safford (AZ) Unified School District's appeal of the Ninth Circuit's reversal of the dismissal of Savana Redding's suit against it for strip searching her to look for ibuprofen when she was a 13-year-old honor student with no history of discipline issues at her middle school.

I hope SCOTUS isn't taking the case in order to overturn the Ninth Circuit. The July 11, 2008, Opinion of nine of the eleven appeals court judges who heard the case details the Constitutional basis for holding the school personnel responsible for their unreasonable violation of the privacy and person of the 13-year-old student.

The Ninth Circuit held that

[T]he public school officials who strip searched Savana acted contrary to all reason and common sense as they trampled over her legitimate and substantial interests in privacy and security of her person.

It would be a shame if parents had to worry more about schools abusing their children than the "evils" that Safford U.S.D.'s officials say they want to protect our children from.

Whom is this law supposed to benefit?

The Associated Press reported on September 26, 2008, that on September 24th in Nebraska, 11 children (9 of them siblings) were abandoned at two different hospitals under the state's so-called "Safe Haven" law. (See the full Boston Globe story here.)

According to the article,

Todd Landry, director of Health and Human Services' division of Children and Family Services, said that in nearly every case, the parents who left their children felt overwhelmed and had decided they didn't want to be parents anymore.

In my opinion it is disastrous to let children be dumped like so much not-worthy-of-my-time-to-repair-but-too-good-for-the-trash "Free-cycle" material, especially when states can achieve the same goal by just making it clear that they do not intend to prosecute troubled parents who seek help when they are overwhelmed with child-rearing.

Massachusetts has a "Baby Safe Haven Law" but it only applies to babies 7 days old or less. It is still problematic, though, because it permits the voluntarily-abandoning-parent to do so without providing any information about him/herself or the child. There is then no ability to notify the other parent nor any other family member who might be interested. The babies so abandoned are turned into complete foundlings without any birth-family history, medical history or sense of place in the world that can be difficult to overcome even in the most caring of adoptive homes.

As a society we should be able to help struggling parents and their children without the need to say "Children Wanted - No Question Asked."

WHAT?@@!??

A young mother's apparently disturbed young friend steals her baby Thursday night so on Friday

the Department of Social Services took custody of the baby and his 16-month-old sister, and Sterrett's third child, a 2-year-old boy, was placed with relatives, according to a spokeswoman for the agency.

DSS previously investigated Sterrett for alleged neglect involving one of her other children. That case was closed last year, according to Alison Goodwin, a spokeswoman for DSS, who gave no details.

Does DSS not realize, like the Texas authorities in the FLDS case didn't realize, that they need specific, articulable "reasonable cause to believe that the removal of the child is necessary to protect him from further abuse or neglect"? See Mass. General Laws chapter 119, section 51B (emphasis added). Doesn't "further" imply that there had to have been some abuse or neglect in the first place?

Nothing in the Globe article about poor Ms. Sterrett's troubles indicates that there was any evidence of

reasonable cause to believe that a child under the age of eighteen years is suffering physical or emotional injury resulting from abuse inflicted upon him which causes harm or substantial risk of harm to the child’s health or welfare including sexual abuse, or from neglect, including malnutrition, or who is determined to be physically dependent upon an addictive drug at birth

which is the applicable statutory definition from the infamous section 51A.

It's hard to tell for sure from the Globe article, but it seems as if this is another case of DSS breaking up a family in the name of protecting children from a parent they don't need protection from. Will the Globe report on Tuesday, after Ms. Sterrett's 72-hour hearing , if she gets her children back from the juvenile court judge? Will DSS apologize or even have its spokesperson report that they were wrong if Ms. Sterrett does get her children back?

The Fourth Amendment to the U.S. Constitution gives even young mothers the right not to have their children seized by the state without probable cause.

Now they're suspending students for writing a list of names!

According to the Boston Globe:

High schoolers investigated
By Martin Finucane
Globe Staff / May 23, 2008

Two students at Silver Lake Regional High School are being kept out of school while police investigate whether lists the two students made of fellow students constitute a threat to the school community, the school district's superintendent said yesterday.

A teacher became concerned when she saw a male student throw away a piece of paper last Friday. She retrieved it and saw a list of four names. On Monday, a female student was found to be writing a list containing two names.

"At this point in time, we're taking it very seriously. . . . Frankly, we take any threat as a serious threat until it's sort of proved otherwise," said Superintendent John Tuffy, who would not describe what raised school officials' suspicions about the lists.

Tuffy said it was not clear if the two students were linked.

"That's being looked into right now. There are a number of questions that we all would like answers to," he said.

Kingston Police Chief Joseph Rebello did not immediately return a telephone message seeking comment.

Read it online here.

~~~

After attending "School Discipline, Juvenile Justice and the Realities of Race" sponsored by The Boston Lawyer Chapter of the American Constitution Society, the American Civil Liberties Union, the American Civil Liberties Union of Massachusetts, the Juvenile Justice Center at Suffolk University Law School and the Criminal Law Section of the Boston Bar Association at The Boston Public Library Tuesday night and being reminded of the School to Prison Pipeline, I couldn't help but be astounded at the evidence of overuse of zero tolerance policies that seems to be exhibited by the above article.

It amazes me what we criminalize these days and what our "authorities" want to "take seriously".

Termination of Parental Rights Does not End Child Support Obligation (Illinois Supreme Court rules)

Termination of Parental Rights Does not End Child Support Obligation
by Barbara Glesner Fines, Ruby M. Hulen Professor of Law, University of Missouri-Kansas City

In an unpublished opinion, the Illinois Supreme Court has held that the termination of parental rights does not extinguish a child support obligation unless the child is being adopted. Thus, a father whose parental rights are terminated must continue to pay support for a child in foster care. Relying on statutory language that refers to "a child sought to be adopted" the court held that merely being available for adoption is not sufficient to sever the responsibilities to the child. Three judges dissented. Illinois DHFS v. Warner, Ill., Illinois Supreme Court, January 25, 2008.

To view the opinion and for more information, go to the Family Law Prof Blog at http://lawprofessors.typepad.com/family_law/2008/02/case-law-develo.html

CHINS cases: Parents have the right to counsel.

The Massachusetts Supreme Judicial Court acknowledged today that parents are entitled to intervene and to have counsel (appointed if indigent) in Child in Need of Services (CHINS) cases when the court is considering granting custody of their children to DSS. Describing the statutory scheme as one capable of "substantial" intrusion on the parent-child relationship and children as "'those most dear' to parents", Justice Ireland (a former Juvenile Court judge) ruled that "pursuant to G.L. c. 119, § 29, after a child is adjudicated a child in need of services, a parent is entitled to counsel at the dispositional phase of the proceeding if custody of the child could be granted to the department." In the Matter of HILARY (and a consolidated case), SJC-10036 (argued October 2, 2007, decided February 5, 2008).