Wednesday, September 29, 2010

Removing "Mental Retardation" from Federal statutes

The U.S. House of Representatives has approved a bill (unanimously!) to strike the words "mental retardation" and "mentally retarded" from many Federal statutes, replacing those terms with the words "intellectual disability" and "individual with an intellectual disability." Read the full text of the bill here.

Within the context of special education laws, the bill will mean that wherever "mental retardation" is referred to (for example, when discussing eligibility categories), that term will be stricken and replaced with "intellectual disability." The same applies to section 504 of the Rehabilitation Act.

The law is called "Rosa's law" and is named for a child with Down Syndrome from Maryland. You can read about Rosa's story, including the inspirational testimony of her brother Nick in a hearing before representatives of the Maryland General Assembly, in this press release from Senator Barbara Mikulski's office, or in ABC News' story about the law and the family that inspired it.

This is only one step, albeit an important one, among many that will be needed to stop the R word. Changing the designation in laws may not stop the use of the R word as a derogatory slang or insult, but it is certainly a step in the right direction in terms of societal awareness.

Tuesday, September 28, 2010

Call to Action on the Truancy Bill: Part 3

Truancy Bill Part 3: Sample Letter

Please read Part 1 and Part 2 for more information on this topic, including contact information and instructions for contacting the Governor's office.

Below is a sample letter for parents, advocates, etc to utilize in order to contact the Governor's office about this issue. You can (and should) personalize this letter prior to sending it.


INSERT THE GOVERNOR'S CONTACT INFO (See Part 2 of this series)


Re: SB 1317 / Please Veto

Dear Governor Schwarzenegger:

I am writing to request that you veto SB 1317, the truancy bill authored by Senator Leno. There are already serious penalties for parents who neglect their children, a concept which includes failure to ensure that the child is educated. Since this bill comes into play with a student who has missed 10% of the year to date, depending on the time of year, it could be applied based on a small number of absences. It is vague in defining parent fault: it applies to a parent "who has failed to reasonably supervise and encourage the pupil's school attendance." It does not set forth any exception for parents who are not currently encouraging school attendance for very good reasons. It could easily be interpreted to make absences that do not fall within the narrow excuse categories recognized by law, regardless of the reasons for those absences, a serious offense capable of wreaking financial havoc through large fines and separating families by jailing parents. Students miss school for many reasons, some obviously bad and some of which may represent the best choices in bad circumstances. Their out of school activities range from committing juvenile offenses to caring for sick siblings to watching TV to receiving intensive educational services for 30-40 hours per week at their parents' expense. This bill treats very different types of "truancy" the same. It could easily worsen the problems that lead to absences.
While the theory seems to be that prosecutors will use discretion wisely, it is not realistic to expect that they will be able to investigate reasons for truancy in each case, and this bill does not require them to. Alternatives to punishment are optional. Though the bill does not apply to home schoolers who intend to home school and provide appropriate paperwork from day one, it would greatly endanger parents forced into informal homeschooling by absence of appropriate special education services or by bullying midway through the school year. Districts in special education disputes would attempt to apply it to students who are in tutoring programs that are not certified as schools. This bill would empower administrators who refuse needed services or who dismiss complaints about bullying and harassment without adequate investigation. It would allow oppositional teenagers to create massive legal problems for their parents. It would terrify parents who have good faith, reasonable beliefs that their child needs to be removed temporarily from school until problems are discussed and addressed, and could frighten them out of taking steps which are necessary for their children's progress and even safety.
Please work this budget year on protecting school funding, and figuring out how parents and teachers can work together to do more with less. Please veto this measure which would instead pit schools and parents against each other.



Call to Action on the Truancy Bill: Part 2

Truancy Bill Part 2: How to get involved and make yourself heard on this issue

Please read Call to Action on the Truancy Bill: Part 1 for information about why this bill would be unjust for parents of students with disabilities.

Contacting the Governor: For this "call to action," Parents, advocates, attorneys and others in the special education community are encouraged to send a letter (see sample in Part 3) by either email or fax, or call one of the office numbers below to provide your input.

1. Email:

2. By fax or phone call to Governor's office in Sacramento:

Governor Arnold Schwarzenegger
State Capitol Building
Sacramento, CA 95814
PHONE: 916-445-2841
FAX: 916-558-3160

3. By fax or phone call to District office across CA

Fresno Office
2550 Mariposa Mall #3013
Fresno, CA 93721
PHONE: 559-477-1804
FAX: 559-445-5328

Los Angeles Office
300 South Spring Street
Suite 16701
Los Angeles, CA 90013
PHONE: 213-897-0322
FAX: 213-897-0319

Riverside Office
3737 Main Street #201
Riverside, CA 92501
PHONE: 951-680-6860
FAX: 951-680-6863

San Diego Office
1350 Front Street
Suite 6054
San Diego, CA 92101
PHONE: 619-525-4641
FAX: 619-525-4640

San Francisco Office
455 Golden Gate Avenue
Suite 14000
San Francisco, CA 94102
PHONE: 415-703-2218

Part 3 of this posting will include a sample letter for your use, courtesy of the California Association of Parent Child Advocacy.

Call to Action on the Truancy Bill: Part 1

Truancy Bill Part 1: Why the call to action is necessary

Over the past couple of months here in California, Senator Leno's "Truancy Bill" has been a big topic in the world of public education. The bill's well-intentioned point is to "improve efforts to fight truancy," and as an effect of those efforts, hopefully do something to prevent kids from becoming juvenile delinquents. As noble as this sounds, and as much as we need to combat truancy issues in our schools, as written, the serious negative consequences for truancy (including jail time for parents or hefty fines) could be applied in circumstances involving students with disabilities in a harmful and unjust manner.

Take for example some of the following scenarios:

* Parents disagree with the school district's offer of placement and services because they believe that the child requires intensive 1:1 instruction or an ABA (applied behavioral analysis) based program. They remove their child from school for part or all of the school day, providing appropriate notice as required under special education laws, and place their child in a private program at their own expense. Case law recognizes the importance of allowing Parents the opportunity to fund private placements and services, and take the financial risk of seeking reimbursement for those programs, rather than requiring Parents to leave their child in a "potentially inappropriate" setting. This right would be virtually stripped if those Parents would face jail time as a penalty for invoking this process.

* Child with a disability has serious anxiety and depression, and refuses to go to school. Although not physically "sick" in a traditional sense, the child's health and well-being may be affected if he/she attends school with such extreme levels of anxiety, and Parents keep the child home until alternatives can be agreed upon or supports can be put into place. Parents will not be able to make these decisions about their child's welfare under this bill.

* Child with a disability has social/emotional and/or behavioral difficulties that include school refusal. Parents are doing everything they can to attempt to get the child to school or encourage school attendance, but school district officials don't believe they are doing enough. Those Parents may face the penalties called for under this bill.

* Child with a disability has been seriously harassed or bullied by other students because of his/her disability, and Parents have reported the bullying to school officials, who have done nothing in response to prevent the bullying from occurring. Parents do not feel the school is a safe environment because of the physical harm being caused to the child. These Parents would not be able to keep their child home until safety is ensured. Effectively, school personnel who "ignore" such reports of bullying would be empowered to do so.

These are hypotheticals based on scenarios that special education attorneys, advocates and parents see and experience on a regular basis. There is no language in the bill to provide an exception for such scenarios, and the language that is included is vague and easy to misinterpret, misapply, and even abuse. Most alarmingly, perhaps, is the lack of clarity as to what constitutes a "chronic" truancy problem giving rise to the penalties it imposes. Because these penalties are triggered by missing 10% of the school year to date, without further clarification, interpretation could lead to imposition of penalties for a very small number of dates depending on the time of the school year. (For example, 30 school days, or approximately 6 weeks, into the year, a child who had missed only 3 days would be considered chronically truant.)

The current state of this bill is that it has passed the state Senate and House, and is awaiting the Governor's action on it. Thus, this "call to action" is for Parents, advocates, etc in the special education community to contact Governor Schwarzenegger and request that he veto SB1317, the "truancy bill."

Parts 2 and 3 of this posting will include contact information and a sample letter.

Monday, September 27, 2010

Stop the R word

Here's a little disclaimer / warning about this post before you proceed with reading it. First off, it is about a topic of controversy, and portrays some events that may be upsetting. Secondly, this post is from a much more personal standpoint than the posts on this cite normally are, and it is based primarily on my opinion about this topic and the reasons for that opinion.

I want to share a story that I recently encountered, told to me by someone very close to me who witnessed this happen. It is a story many people will familiarize with.

This person lives in a small town, where he works in a retail store. He happens to have an adult brother with Autism who also has co-existing cognitive delay. He was at work one afternoon when a well-known local came walking in exclaiming:

"You better lock up the store, there's a bunch of retards coming this way!"

He continued to talk in this manner, very loudly, warning the staff to close up shop to prevent these "retards" from coming in. Minutes later, the group of individuals he was referring to came into the store. My friend, the retail sales associate, saw that it was a group of students from the local high school out for a shopping trip as part of their community-based instruction. Many of those students were teenagers he knew from his work with a youth group at a local church.

What was amazing to me was that this one single retail employee in that establishment was the sole person who had seemed to be upset by the comment. Maybe it is because he grew up with a brother with a developmental disability, and so has greater sensitivity, but I would have hoped that a larger slice of society would react negatively to someone actually stating that a store's doors should be closed to a group of citizens because they happen to have disabilities.

Replace the R-word with the N-word in this story, and think it over again. Replace it with "fags" or "queers." Consider the point from that perspective - Anytime you label a group of people in a derogatory manner based on their race, disability, sexual orientation, etc, and actually proclaim that this group of people should be barred from entrance to a public business establishment, that is truly offensive no matter what the identifying "characteristic" (for lack of a better term) of the group is.

The "R-word" has become a term of insult in our society. Through use, derogatory words become part of the vernacular of our everyday language. Our "native language" within our society is developed through use. The vernacular is changing continuously as words are added through their common use. Think of how many times you may have heard the phrase "that's so retarded" or "you're such a retard" in context of something that has nothing to do with actually having an intellectual disability. Such phrases are used to insult someone, by drawing an disparaging comparison to a person who is considered "less than" because of an intellectual disability. This implies that to be "retarded" or "a retard" is something unpleasant, bad, appalling; something to be shunned. Through this use, the "R-word" becomes an insult. It becomes, or has become, a "bad word."

Words really do have power. "Sticks and stones may break my bones, but words will never hurt me" may have been drilled into us as kids, as a mantra to ward off the affects of verbal bullies, but it never seemed to me to have much truth. Words do have power, and words have the ability to hurt. Name calling, derogatory comments, racial remarks, insults, etc can all humiliate a person or cause emotional trauma.

Not only does an insult hurt the person you are insulting, but when the words used are derogatory to a larger group of people, based on their race, disability, religion, sexual orientation, ethnicity, nationality, etc, words perpetuate hate. We use the "R-word" to mean something bad, even despicable, and then when we refer to the actual group of people that the word "retarded" was intended to include, it is now associated with hate, with shunning those people from society.

Here's what I think is the best way to explain this:

Words/speech are the first rung of the "ladder of prejudice," leading to a cycle of hate that perpetuates further and further discrimination. In the first phase, or "rung," people in society engage in derogatory speech against a group of people based on their race, disability, religion, etc. As discussed above, through use this hate speech becomes a part of the accepted vernacular of that society. The next step, and natural progression if you really think about the link here, is avoidance. The words we've used have become derogatory; they carry the connotations of something bad or even dirty. So we as a society avoid the people that these words describe. The third rung is more overt discriminatory acts. At this phase, we have as a society developed the accepted behavior of avoiding certain people, so it is natural that society would accept actual segregation. This is the "not in my backyard" phase. Let's just put "those people" somewhere else; institutions, segregated neighborhoods (concentration camps?). The fourth rung is violence, and here we hope it is no longer behavior that is acceptable to the community at large, but yes, society as a whole has a part in this phase. Violence and physical attack may be engaged in by a small minority of people, but it happens because of the "no one cares anyway" attitude. If society has labeled, insulted, shunned, and segregated certain people, who would believe those people to be protected? The final rung, the extreme, is "extermination." And before you jump to exclaiming that would never happen here, in the U.S., consider the broader meaning and applicability. We aren't just talking about genocide (although that certainly is caused by prejudice and discrimination). Consider the practice of sterilization. Historically, here in the U.S., involuntary sterilization of women with intellectual and developmental disabilities was actually considered acceptable at one time, partly in order to prevent such persons from reproducing more disabled persons.

These theories are commonly discussed in Sociology articles, textbooks and classrooms. You can read another explanation of the "Ladder of Prejudice" or the "Cycle of Hate" on the Stop the R-Word Campaign website, or in this excerpt of a Sociology textbook.

So when I heard about the situation I started this post with, the incident my friend witnessed and experienced, I thought back to these concepts from my college Sociology classes and from law school discussions about equal protection. I thought about what we learn from elementary school onward about how segregation, discrimination, etc is not acceptable. We're "taught" that, but we have so far to go before it is reality. This "incident" is a perfect example of the cycle of hate, in my opinion. Here was a person using a derogatory word to try to insult and make fun of persons with disabilities, in order to marginalize them and shun them from society. He even went so far as to assert that the doors of a public establishment should be shut to them. Sounds like all of the first three "rungs" to me - speech, avoidance, segregation. Degrade people, shun them, separate them from society.

At the end of this, I am writing this because I believe that this isn't just about being overly politically correct, or about anyone being overly sensitive. It is about real prejudice and real hate speech that goes on every day in our society. Maybe for people who don't see, as I do, first hand examples of how non-inclusive our world still can be for people with disabilities, it doesn't seem like a big deal. But I think everyday of a little boy I once knew whose father fought everyday for one simple goal that was never realized, which was for the child to be able to go to his neighborhood school. And I know that discrimination, even segregation, still happens.

So I pledge that I will not use the words "retard" or "retarded" to mean "stupid." I will be careful with my words, and I will try to remember to pay attention when other people use these words, and to ask them to stop.

(Note: the original "R-Word Pledge" can be found here. I hope you will take it too.)

Friday, September 24, 2010

Fast Fact Friday: Temporary Disabilities

Various circumstances could cause a student to have a disabling condition that is temporary in nature, the most common being broken limbs.

Can a student be eligible for special education and related services if he/she has a "temporary disability?"

Students with temporary disabilities may be protected under section 504 if those disabilities substantially limit one or more major life activities for an extended period of time. Thus, students with temporary disabilities may be entitled to a FAPE under section 504. Because section 504 eligibility focuses on a student's ability to access educational opportunities, factors beyond merely academics must be considered as well. A student with a serious illness, for example, may be unable to access the educational environment without physical accommodations if that student has difficulties walking, climb steps, etc.

It is less likely that a temporary disability would give rise to eligibility under IDEA, however, because of the statutory scheme for eligibility. The IDEA requires that a student have a disability specifically under one of the identified 13 disabling conditions, and that the student require special education and related services because of the disability. A student with a broken arm, for instance, may require accommodations to access the educational environment but it would be difficult to demonstrate that the student required specialized instruction or services.

Friday, September 10, 2010

Fast Fact Friday: Low Incidence Disability

Broadly defined, a "low incidence disability" is one in which the rate of occurrence is extremely small. California, for example, specifically defines "low incidence disability" as "a severe disabling condition with an expected incidence rate of less than one percent of the total statewide enrollment in kindergarten through grade 12." California Education Code section 56026.5.

Some examples could include:
  • Blindness
  • Visual Impairment
  • Deafness
  • Hard of hearing
  • Deaf-blindness
  • Severe cognitive delay
  • Serious physical disability / impairment
  • Significant / complex health related conditions
  • Multiple disabilities
  • Autism
In some instances, designation of "low incidence" may attach certain funding resources that are not otherwise applicable for services and equipment. Further, states may have specific data collection requirements related to students with low incidence disabilities.

Some low incidence disabilities may present unique challenges related to providing staff who are trained and qualified to assess those particular students and provide them with instruction and services. However, these students have the same right to a free appropriate public education under the I.D.E.A. as any other eligible student.

The fact that a student is categorized as having a "low incidence" disability cannot be the basis of a determination that he/she should be removed from the regular educational environment. Rather,
"the process for determining the educational placement for children with low-incidence disabilities is the same process used for determining the educational placement for all children with disabilities. That is, each child's educational placement must be determined on an individual case-by-case basis depending on each child's unique educational needs and circumstances, rather than by the child's category of disability." Comments and discussion to 2006 IDEA Part B Regulations, 71 Fed. Reg. 46586 (2006).

Friday, September 3, 2010

Fast Fact Friday: Special Factors

In addition to the "required content" for Individualized Education Plans, the I.D.E.A. sets forth five "special factors" that IEP teams are required to consider in development of the special education student's program:

1. Positive Behavioral Interventions - "in the case of a child whose behavior impedes the child's learning or that of others, consider the use of positive behavioral interventions and supports, and other strategies, to address that behavior;"

2. Language Needs - "in the case of a child with limited English proficiency, consider the language needs of the child as those needs related to the child's IEP;"

3. Braille - "in the case of a child who is blind or visually impaired, provide for instruction in Braille and the use of Braille unless the IEP team determines after an evaluation... that instruction in Braille is not appropriate for the child;"

4. Communication mode - "consider the communication needs of the child, and in the case of a child who is deaf or hard of hearing, consider the child's language and communication needs, opportunities for direct communications with peers and personnel in the child's language and communication mode, academic level, and full range of needs, including opportunities for direct instruction in the child's language and communication mode;"

5. Assistive Technology - "consider whether the child needs assistive technology devices and services."

34 C.F.R. section 300.324(a)(2).