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Supreme Court Declines Special Education Appeals

The U.S. Supreme Court on Monday declined to take up two appeals involving how schools treat students in special education. One involves whether the use of a special desk with a restraining bar violates a student's rights, while the other addresses the "social promotion" of students with disabilities who are unable to pass state achievement tests.

The restraining-bar case stems from a federal appeals court decision that said the district's use of a U-shaped desk, with a wooden bar designed to keep a student from pushing back his or her chair, did not amount to an unconstitutional "seizure" under the Fourth Amendment.

The panel of the U.S. Court of Appeals for the 10th Circuit, in Denver, also held last year that the exclusive use of such desks in special education classrooms did not violate the 14th Amendment equal-protection rights of students.

The use of the restraining desk by the Pueblo, Colo., district was challenged by the mother of a young student identified in court papers as Ebonie S., who was born addicted to cocaine and suffers from multiple intellectual and developmental disabilities. Court papers say a teacher and paraprofessionals at Bessemer Academy in Pueblo used the U-shaped desk to discipline the student, who attended the school from ages 5 to 6, and keep her from disrupting the classroom.

The mother argued in her suit that the "locking" bar kept her daughter restrained in the desk, sometimes for as long as an hour. Lawyers for the family argued in their appeal that the Supreme Court's guidance was needed concerning the correct legal test for what constitutes a Fourth Amendment "seizure" in a school setting.

"In the past few years, governmental agencies and advocacy groups have reported an alarming increase in the misuse of restraint, seclusion, and other aversive practices in America's schools, particularly on students with disabilities," said the appeal in Ebonie S. v. Pueblo School District (No. 12-663), which among other things cited a 2009 report on the topic by the Government Accountability Office.

After the school district initially declined to file a response to the family's appeal, the justices requested one, a sign that they were at least somewhat interested in the issue.

The district argued in the brief that the use of the wraparound desk for Ebonie "was justified and reasonably related to the circumstances."

"It was used for educational purposes to teach Ebonie how to properly sit at a desk, stay on task, and focus her attention, and also for safety purposes," the district said.

'Social-Promotion' Case

Meanwhile, in the second case, the parents of a student with a learning disability challenged a Texas school district's decision to waive the writing portion of a state skills test rather than provide the student with extra help to deal with his writing deficit.

The case involves Per Hovem, who was a high school junior in the Klein Independent School District in 2007 when he failed the writing portion of the Texas Assessment of Knowledge and Skills three times. Hovem was in special education for a learning disability, and his parents sought a specific individualized education program to deal with his writing problem, but the district decided to waive the requirement and declare that the student passed the state achievement test so he could graduate high school.

A hearing officer and a federal district court determined that the school district failed to provide Hovem with a proper IEP under the federal Individuals with Disabilities Education Act. But a three-judge panel of the U.S. Court of Appeals for the 5th Circuit, in New Orleans, ruled 2-1 last year that because the student was in a position to graduate from high school, he did receive academic benefits that satisfied the district's duty to provide a free, appropriate public education under the IDEA.

The dissenting 5th Circuit judge said the majority's decision would give school district's license for the "social promotion" of students whose special education services might be too costly or whose behavior problems were too difficult.

In their appeal to the Supreme Court in Hovem v. Klein Independent School District (No. 12-875), the family argued that the 5th Circuit court's decision could lead to "dire public policy implications" as suggested by the dissent.

"Social promotion sends a message to students that little is expected from them," the family's brief said.

The school district said in its response brief that "there is absolutely no evidence in the record that Per was 'socially promoted.' To the contrary, the evidence establishes that he passed his classes and received substantial educational benefit on his own merit."

The justices declined to hear both appeals without any comment or recorded dissent.

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