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Subj:    THE SPECIAL ED ADVOCATE, MARCH 29, 2000 (V. 3, N. 12)
Date:    3/29/00 7:06:54 PM Pacific Standard Time
From:    webmaster@wrightslaw.com (Wrightslaw)
Sender:    owner-special-ed-advocate@wrightslaw.com
To:    special-ed-advocate@wrightslaw.com

The Special Ed Advocate Newsletter is sent by permission only. If you wish to unsubscribe at any time, please follow the directions at the end of this e-mail. Thanks!

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The Special Ed Advocate

The Online Newsletter About Special Education and the Law

March 29, 2000 Vol. III, No. 12

Visit us today at http://www.wrightslaw.com

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1. WHO MUST PAY? WHO MUST TAKE “THE BITTER WITH THE SWEET?” (7th Circuit, March 24, 2000)

2. “SPECIAL EDUCATION LAW: WHAT EVERY PARENT NEEDS TO KNOW TRANSCRIPT AVAILABLE NOW!

3. EDITOR’S CHOICE FROM THE BOOKSTORE

4. SUBSCRIPTION INFORMATION

5. CONTACT INFORMATION

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1. WHO MUST PAY? WHY MUST STATES TAKE “THE BITTER WITH THE SWEET”? (7th Circuit, March 24, 2000)

On March 24, 2000, the Court of Appeals for the Seventh Circuit issued a decision in two Illinois cases:

* Board of Education of Oak Park and River Forest High School District 200 v. Kelly E. and Illinois State Board of Education.

AND

* T. H. v. Board of Education of Palatine School District No. 15 v. Illinois State Bd. of Education and Glenn McGee,
Superintendent of Public Instruction.  (NOTE FROM WRIGHTSLAW: In T. H. v. Palatine, the District Court
issued a strong decision about the appropriateness of an ABA program for a young child with autism. The decision in T. H. v. Palatine is one of the most frequently downloaded cases in the Wrightslaw Law Library. A link to the T. H. case follows)

The Court begins this decision with a question:

“Does the Individuals with Disabilities Education Act, 20 U.S.C. Sec. 1400-87, entitle a local school district to reimbursement from the state for some or all of the expense when the district must reimburse parents for a child’s private education?”

In Bd. Educ. of Oak Park, the Judge “. . . concluded that Oak Park’s school district had made so many procedural and substantive errors in preparing an IEP for Kelly E. that her parents were entitled to reimbursement for private education.”

In T. H. v. Palatine, the Judge “. . . enforced an administrative decision that T. H.’s parents are entitled to reimbursement for an intensive home-based educational program.”

WHO MUST PAY?

Illinois “leads off with a flurry of objections” about the litigation. Illinois claimed that local school districts “lack
standing,” and “if the local school districts may sue, still the state is not a proper defendant given the eleventh amendment.”

The Seventh Circuit concluded that these arguments were “feeble, individually and collectively.”

STATE CLAIMS OF SOVEREIGN IMMUNITY

“Section 604(a) of the IDEA, 20 U. S. C. Sec. 1403(a), provides that “[a] State shall not be immune under the eleventh amendment to the Constitution of the United States from suit in Federal court for a violation of this chapter.”

“Illinois contends that abrogation exceeds Congress’ powers under Sec. 5 of the fourteenth amendment . . . but this is beside the point . . . States that accept federal money, as Illinois had done, must respect the terms and conditions of the grant . . . Congress did what it could to ensure that states participating in the IDEA are amendable to suit in federal court.”

“THE BITTER WITH THE SWEET”

“Thus we hold that states must take the bitter with the sweet; having accepted the money, they must litigate in federal court . . . local school districts can’t piggyback claims based on state law.”

“THE PRINCIPAL QUESTION”

“. . . does the Act prescribe a particular allocation of expenses between local and state bodies?”

To read the full decision -- and get answers to this question -- go to

http://www.wrightslaw.com/law/caselaw/7th_OakPark_KellyE_00_0324.htm

The T. H. v. Palatine decision is at

http://www.wrightslaw.com/law/caselaw/case_ABA_IL_TH_9905.pdf

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2. SPECIAL EDUCATION LAW: WHAT EVERY PARENT NEEDS TO KNOW

On Thursday, March 23, Pete and Pam Wright were guests at HealthyPlace.com for an online conference about special education law: "Special Education Law: What Every Parent Needs to Know"

We spent nearly two hours answering questions in this moderated discussion.

Because many people wrote to say they were unable to attend, we are happy to report that you can get the transcript of "Special Education Law: What Every Parent Needs to Know" at HealthyPlace.com.

Follow this link -

http://www.healthyplace.com/Communities/ADD/Site/transcripts/Special_Education_Law.htm

While you’re there, check out the resources. HealthyPlace.com is an impressive site that offers information and community. You can get an overview of the resources at

http://www.healthyplace.com/site/directory.htm

For a “WebTour”, go to

http://www.healthyplace.com/site/webtour.htm

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3. EDITOR’S CHOICE FROM THE BOOKSTORE

Many readers write with questions about law and litigation:

“HELP! I just requested a due process hearing -- now what should I do?”

“HELP! You say we must write letters to document the problems we are having with the school. Why?”

REPRESENT YOURSELF IN COURT: HOW TO PREPARE AND TRY A WINNING CASE” by Paul Bergman & Sara Berman-Barrett.

Parents often "shoot themselves in the foot" when they negotiate with the school for services. If you are thinking about due process, you should read “Represent Yourself in Court.” This will help you understand the process of litigation, and how to prepare and present your case.

One reviewer wrote:

"As a fourth year law student, this book is better than the books I have studied. I recommend this book not only for the lay person, but also for law students and new attorneys. This book takes you step by step through the Court system, explains how to bring a case into court, and how to present and win that case. The references are excellent!

To learn more about “Represent Yourself in Court” go to

http://www.amazon.com/exec/obidos/ASIN/0873374029/thespecialedadvo

Looking for a good book about IEPs?

Our top choice is “BETTER IEPs” by Barbara Bateman and Mary Anne Linden.

"The heart of the law is the child's written Individualized Educational Program (IEP). "Better IEPs" gives special educators, regular educators, and parents the confidence and know-how to develop IEPs that are both legally correct and educationally useful. Many IEPs are neither!"

To get more information about Better IEPs, go to

http://www.amazon.com/exec/obidos/ASIN/1570351643/thespecialedadvo

You can get information about “How to Represent Yourself in Court,” “Better IEPs” and other good books in the Legal Section of the Advocate’s Bookstore -

http://www.wrightslaw.com/bkstore/bks_law.htm

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4. SUBSCRIPTION INFORMATION

The Special Ed Advocate is a free online newsletter about special education legal issues, cases, tactics and strategy, effective educational methods, and Internet links.

As a subscriber to The Special Ed Advocate, you’ll will receive announcements and "alerts" about new cases and other events. Back issues of The Special Ed Advocate are in the Newsletter Archives at the Wrightslaw site -

http://www.wrightslaw.com/main_newsletter_archives.htm

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5. CONTACT INFORMATION

Pete and Pam Wright
c/o Wrightslaw & The Special Ed Advocate
P. O. Box 1008
Deltaville, VA 23043
Phone: 804-257-0857

Website: http://www.wrightslaw.com
Email: webmaster@wrightslaw.com

The resources at this website are copyrighted by the authors.

They may be used for non-commercial purposes only. They may not be redistributed for commercial purposes without the express written consent of Peter W. D. Wright.

It is not necessary to obtain our consent to link to our website or copy, print and distribute our articles and newsletters for nonprofit purposes so long as the material is reproduced in its entirety and credit is given to Pete and Pam Wright and "wrightslaw" including the URL -

http://www.wrightslaw.com

Copyright 2000, Peter W. D. Wright and Pamela Darr Wright. All rights reserved.

END