Action Required

This link at the Education Law Center (ELC) refers to a letter that has been drafted and sent to Barbara Gantwerk by 12 attorneys representing such organizations as SPAN, the Education Law Center, ARC of NJ and NJ Protection and Advocacy Inc.

http://edlawcenter.org/ELCPublic/elcnews_050630_SpecialEducationComments.htm

The following is the letter that was sent to DOE:

The letter from the pro-parent and student attorneys raises legal questions about several of the directives from the DOE letter of June 3, 2005 (see: http://www.nj.gov/njded/specialed/idea/reauth/ideia_memo.pdf ). The DOE letter provides direction as to what it purports are the areas of IDEIA 2004 that need to be adhered to as of July 2005.

Specifically, according to the summary at the ELC site:

" . . . the State regulations regarding special education reevaluations which provide for more frequent reevaluations than does IDEA '04 - must remain in effect unless and until NJDOE amends the state regulations, since IDEA '04 does not supercede the state regulations. Compliance with a state mandate of more frequent reevaluations perforce assures compliance with a federal mandate of less frequent reevaluations.

ELC and the other advocates also disagreed with NJDOE’s determination that schools may take advantage of the IDEA ’04 provision allowing the removal of students with disabilities to an interim alternative educational setting for up to 45 school days, because the State regulations provide for removal merely for 45 calendar days. The federal provision regarding removal is permissive, not mandatory, and therefore, the change to 45 school days may not supercede the state provision of 45 calendar days.

Similarly, the advocates protested implementation of IDEA ‘04’s more onerous discipline standard, as well as implementation of IDEA ‘04’s attorney fee provision which allows districts for the first time to collect fees. These provisions are permissive in nature and therefore may not supercede the current State regulations in these areas."

What the DOE memo has done is pushed the clock ahead on these items, before the public hearings that DOE must hold on these topics. Two of these items that have been improperly fast tracked are addressed by our petition drive.

See http://studentadvocate-nj.org/IDEIA2004_Petition.htm .

Your immediate action is needed. Letters are needed to be sent to DOE and Acting Governor Richard Codey calling for a redirection to the districts (see addresses below).

William Librera, NJ Commissioner of Education, DOE, PO Box 500, TRENTON, NJ 08625-0500 (609) 292-4469
Barbara Gantwerk, Director, Office of Special Education Programs, DOE, PO Box 500, TRENTON, NJ 08625-0500
E-mail: barbara.gantwerk@doe.state.nj.us , phone: (609)292-0147 / fax: (609)984-8422
Acting Governor Richard Codey E-mail: SenCodey@njleg.org , PO Box 001, Trenton, NJ 08625, Phone: (609) 292-6000 / Fax: (609) 777-2922

We need to communicate to the rest of the families of 225,000 special education students about the misdirection coming out of the DOE on this matter. Call your local newspaper and refer them to the ELC, et. al. memo to DOE. Make the case to editors and reporters that the issue is an important and newsworthy controversy.

Finally, we need to find an attorney who is willing to take this mis-direction issue to a higher level by filing for an injunction, particularly on the discipline issue which will create the most harm. I have spoken with two attorneys who believe the idea of an injunction has legal merit. They were initially reticent believing that the issue might not get full consideration by a judge until someone who has been damaged by the misdirection (thrown out of school for example) has the wherewithal to bring legal action. Since the discipline changes will disproportionately impact the lower income families who do not have the means to go to court, it is unlikely that such a case will surface before damage is done to many who can be adversely impacted.

The other drawback presented by one such attorney is the lack of resources to finance the research and the drafting of the legal paperwork to seek an injunction.

Filing a motion for an injunction could set the stage for a higher level of challenge to the harmful changes that are coming down. If there are any interested attorneys, willing to volunteer for such an effort, please contact us at 908-881-5275 or advocate@studentadvocate-nj.org .

We also recommend that organizations and individuals send the letter . . . . ttp://edlawcenter.org/ELCPublic/elcnews_050630_GuidanceComments.pdf ( Text version if you do not have PDF )

to their district Special Education Directors and Superintendent with a cover letter suggesting that they pay regard to the opinions therein since the letter from NJ DOE could have misinterpreted some of the legal issues of IDEIA 2004.