Special Education & IDEA Compliance

If your child isn’t performing acceptably in their current general education environment, whether academically or behaviorally, isn’t receiving the general education services and accommodations that they are entitled to by law, isn’t appropriately placed in their current special education setting, isn’t receiving the special education services or accommodations they need to progress, get the advice of an experienced education attorney as soon as possible. 

Your child is entitled by law to a free appropriate public education. Effective advocacy requires an understanding of the IDEA process, from referral through placement, and the ability to effectively navigate one’s way through a complex system rife with potential pitfalls. This requires knowledge of the consequences of each decision. Whether your child is in need of or requires amendments to their educational plan, requires additional special education services, programatic modifications and accommodations, review and modification of a current placement or program, needs an independent evaluation, Mr. Spencer fight for your rights through every stage of the process to ensure your child receives what he or she deserves.

 

Section 504 Compliance

If your child is suffering from a disability, including allergies to tree nuts, fruits, gluten, etc., that prevents him or her from accessing an education, extracurricular activities or events, or any other District offered or funded programs in the same manner as his or her peers, they may be eligible for services and/or accommodations. 

Section 504 of the Rehabilitation Act requires school districts to provide students with disabilities with “regular or special education and related aids and services designed to meet the student's individual educational needs as adequately as the needs of non-disabled students are met.” If your child has been denied access to or otherwise unable to participate in District offered or funded programs or you believe your child has been the subject of discrimination in his or her education based upon his or her disability, Mr. Spencer will  assist in ensuring your child receives the aides, services and accommodations they require.

 

Bullying & Harassment (DASA)

If your child is being bullied or harassed by another child or school district staff you have remedies available to you by law.

The Dignity for All Students Act (“DASA”) is an anti-discrimination, anti-harassment law that protects students from peer or adult harassment on school grounds, buses, or at school-sponsored events, and off school grounds under certain circumstances where harassment is based on certain actual or perceived characteristics. DASA prohibits student to student or adult to student harassment based upon actual or perceived characteristics of: Sex; Gender Identity; Sexual Orientation; Weight; Disability; Race; Color; Religion; Religious Practice; National Origin; or Ethnicity.

 

The law defines “harassment” as the creation of a hostile environment by conduct or threats, intimidation or abuse, including cyberbullying, that has or would have the effect of unreasonably and substantially interfering with a student’s educational performance, opportunities or benefits, or mental, emotional or physical well-being. It also includes conduct, threats, intimidation or abuse that reasonably causes or would reasonably be expected to cause a student to fear for his or her physical safety, including but not limited to verbal threats, intimidation or abuse based on a person’s actual or perceived race, color, weight, national origin, ethnic group, religion, religious practice, disability, sexual orientation, gender or sex.

The law defines “bullying” as unwanted, aggressive behavior that involves a real or perceived power imbalance. The behavior is repeated, or has the potential to be repeated, over time. Bullying can occur before and after school hours, in a school building or at locations such as on a playground or on a school bus while a student is traveling to or from school, or on the Internet. Students who are bullied and those who bully others may potentially have serious and lasting problems. 

Bullying can include name-calling, teasing, inappropriate sexual comments, taunting, and threatening to cause harm. Bullying also includes spreading rumors about someone, excluding others on purpose, telling other students not to be friends with someone, embarrassing someone in public, as well as hitting, punching, shoving, kicking, pinching, spitting, tripping, pushing and taking or breaking someone’s things. 

Upon learning your child is being bullied or harassed the onus is on you, the Parent, or District staff, if a witness or otherwise aware of the bullying and/or harassment, to file a complaint with the District. Upon being advised of a Complaint, school districts must immediately take action, including an investigation that is prompt, fair, unbiased, and comprehensive. The victim must be given a full and fair opportunity to present witnesses and other information in support of the Complaint. Further, school districts have an affirmative obligation to prevent retaliation against the Complainant and any individuals who took part in the investigation. Retaliation may include verbal or physical threats, intimidation, ridicule, bribery, destruction of property, spreading rumors, stalking and harassing phone calls.

Keep in mind, notwithstanding the above, simply because a complaint may not violate DASA, it does not necessarily mean harassment did not occur or the District’s Code of Conduct was not violated. The District still has the obligation to investigate, take reasonable steps to end the conduct, and prevent retaliation.

If you believe your child has been subjected to bullying, harassment, or retaliation, Mr. Spencer can help.


Discrimination & Civil Rights Violations

If your child has been excluded from District-funded or operated activities or treated differently than his or her peers based upon his or her race, color, national origin, sex, or religion they may be a victim of discrimination.

Title IV of the Civil Rights Act of 1964 prohibits school districts from discriminating against your child on the basis of his or her race, color, national origin, sex, and religion. 

The Equal Educational Opportunities Act of 1974 prohibits school districts from segregating students on the basis of race, color or national origin and requires districts to provide English Language Learner (ELL) students with appropriate services to overcome language barriers that impede equal participation in educational programs. 

 

Title II of the Americans with Disabilities Act of 1990 prohibits discrimination against students with disabilities. Thus, no school district shall exclude a student from participation in or deny a student the benefits of its services, program, or activities, or subject a student to discrimination by reason of his or her disability. 

If you believe your child has been subjected to discrimination, Mr. Spencer can help.


Student Discipline

If your child has been suspended out-of-school they have rights pursuant to Education Law §3214.

If the suspension was issued by the Principal and is for a period of no more than five days, prior to the initiation of that suspension, you have the right to written notice of the suspension, in the dominant language of the parents and sent in a manner calculated to ensure delivery within 24 hours. You also have the right to an informal conference prior to the initiation of the suspension, except in rare circumstances. At the informal conference you have the right to ask questions of the Principal and the complaining witness(s) and present your child’s version of the events.

 

If the Suspension to be imposed is to be issued by the Superintendent of Schools and is for a period in excess of five days, you have the right to due process as provided for by law. This includes fair notice of the charges and a hearing at which the District must present substantial evidence of your child’s guilt via non-hearsay evidence, with some exceptions, and at which you have the right to counsel, call, question, and subpoena witnesses, testify or not testify, challenge your child’s disciplinary record and present evidence to mitigate any penalty. The penalty must be proportionate to the offense and neither arbitrary or unfair.

If you are dissatisfied with the Principal’s/ Superintendent’s decision, you have the right to appeal that decision(s) to the Board of Education and/or the Commissioner of Education.

If your child has a disability under either the IDEA or §504, or is presumed to have such a disability, they may only be suspended or removed from their current placement in accordance with the procedures and safeguards set forth in state and federal law. Thus, if the suspension would constitute a change in placement, your child has a right to a manifestation team meeting, prior to the District’s penalty determination, where the team must review and decide whether the behavior is caused by or has a direct and substantial relationship to the disability or the behavior is the direct result of the District’s failure to implement your child’s IEP/ §504 Plan. 

If you are dissatisfied with the decision of the Manifestation Team, you have the right to appeal that decision via the due process procedures outlined in the Regulations of the Commissioner of Education (ie. an Impartial Hearing) and thereafter to the State Review Officer and beyond.

If your child has been suspended or otherwise disciplined, Mr. Spencer will help you through every stage of the process.


Student Residency

If your child has been excluded from attendance in your school district, you have rights pursuant to the Education Law and the Regulations of the Commissioner of Education. 

At the onset, your school district has the obligation to provide you with the opportunity to meet and submit documentation to the District's Residency Officer in support of your claim of residency prior to the District's final determination. Whether the issue is strictly residency, a matter of sufficient documentation, or a matter of homelessness, custody, guardianship, or immigration status, you have additional rights.

If you disagree with the District's determination you have the additional right to appeal that decision to the Commissioner of Education, including the right to ask the Commissioner to stay the District's decision pending the outcome of your appeal. 

If your child has been excluded from attendance in your school district, Mr. Spencer can help you exercise your rights.

 
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School District Negligence & Personal Injury

If your child has suffered an injury as a result of your school district's negligence, carelessness or recklessness, the law provides you with the opportunity and the right to seek compensation for his or her injuries. 

Injuries can happen anytime without regard to who, why, when, or where; the circumstances and causes are virtually limitless. Slip and fall, trauma caused by defective athletic or playground equipment, student on student or staff on student assaults, inappropriate and ineffective supervision - minor or severe, Mr. Spencer takes each case seriously and will evaluate your matter and guide you through each step of the process ensuring your rights are protected and enforced. 

If your child has been injured as a result of your school district's action or inaction, you may have a claim for just compensation; Mr. Spencer can help.

 
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Appeals to the Commissioner of Education

If you believe you've suffered an injury as a result of an action taken by your school district and/or its Board of Education, Education Law §310 provides you with a mechanism to seek review and redress from that action by the Commissioner of Education.

Further, if you believe a member of the Board of Education, Superintendent of Schools, or other, designated, school district officer has engaged in willful misconduct, intentional wrongdoing, or neglect of duty, Education Law §306 provides the mechanism through which you may seek their removal by the Commissioner of Education.

Be mindful, appeals to the Commissioner and applications for removal must be initiated within 30 days of the decision or action complained of unless, albeit it rarely, the Commissioner excuses any such delay for good cause shown.

If you believe yourself aggrieved by an action of your Board of Education or other school district official, you have the right to seek review of that decision. Mr. Spencer can guide you through that process.

 

Appeals to the State Review Officer

If you are dissatisfied with the decision of a Hearing Officer following an Impartial Hearing relating to the identification, evaluation, program, or placement, including decisions concerning the presence or absence of a manifestation, you have the right to appeal that decision to the State Review Officer.

Appeals to the State Review Officer are based solely upon the hearing record and follow strict timelines. It is very important the procedures set forth in the Regulations of the Commissioner of Education be followed when instituting your appeal. Failure to abide by these procedures may result in the rejection of your appeal or dismissal by the State Review Officer without a determination regarding the merits of your appeal.

If you are dissatisfied with the an Impartial Hearing Officer's decision, you have the right to seek review of that decision. Mr. Spencer can guide you through that process.

 
Photo by Orest Ladyzhynsky/iStock / Getty Images