Victory: U.S. Education Secretary Betsy DeVos to maintain IDEA obligations for states

April 28th, 2020|0 Comments

Parents of children with disabilities and their advocates pushed Secretary DeVos to maintain IDEA obligations for states during the COVID-19 pandemic. Yesterday, we won.

The Coronavirus Aid, Relief, and Economic Security (CARES) Act, enacted March 27, 2020, gave the Secretary 30 days to issue a report to Congress with her “recommendations on any additional waivers under the Individuals with Disabilities Education Act.” With school systems poised to seize any opportunity for financial relief from the crisis, the risk of statewide IDEA waivers emerged as an existential threat to the rights of children with disabilities during the pandemic.

Parents and advocates quickly mobilized, sending word to their representatives opposing waivers of states’ obligations, even during a pandemic, and offering examples of school districts responding creatively to educate all students under the new circumstances. The U.S. Department of Education heeded parents’ concerns, announcing on April 27, 2020 that it would not seek authority from Congress to waive the core requirements of the IDEA.

In her Report to Congress, Secretary DeVos was “heartened to see many positive examples across the nation of teachers, schools, LEAs, States, as well as Vocational Rehabilitation (VR) agencies, rising to meet the needs of those who rely on them.” She concluded that schools “can, and must, provide education to all students, including children with disabilities.” As a result, the “Department is not requesting waiver authority for any of the core tenets of the IDEA or Section 504 of the Rehabilitation Act of 1973, most notably a free appropriate public education (FAPE) in the least restrictive environment (LRE).”

The Secretary’s decision comes as a welcome bright spot in the special education news.

Berney & Sang is grateful to all parents and advocates who took time to contact their representatives about IDEA waivers.

For ongoing updates concerning special education in Philadelphia and resources for parents, check out our COVID-19 page.

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Heather J. Hulit in Legal Intelligencer: The Problem with Compensatory Education as an IDEA Remedy and the Solution

April 1st, 2020|0 Comments

Associate attorney Heather J. Hulit published an article in the Legal Intelligencer arguing that the way schools distribute compensatory education is rife with delays and unexpected denials. In addition to the negative impact this has on children, it limits the capacity of special education litigation to deter schools from violating students’ rights.  She argues that there is a simple solution to this problem—third-party trusts.

You can access the article here.

The Legal Intelligencer is Pennsylvania’s premier publication for legal news. Attorneys at Berney & Sang publish regularly in the Intelligencer about education and the law.

You can stay up to date by checking the News section of our website and following us on Twitter @BerneyLaw.

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Special Education in the Pandemic: Update on the Philadelphia Public Schools and Resources for Parents

March 25th, 2020|1 Comment

During this unprecedented COVID-19 pandemic, our public schools need to show creativity and perseverance to minimize disruptions to learning. This is especially true for the most vulnerable students, including students with special needs, who stand to lose the most from an extended absence from school.

While Pennsylvania school buildings are closed for the remainder of the school year due to COVID-19, Governor Wolf signed a law requiring school districts to provide parents with written notice of an individualized plan to ensure a free and appropriate public education (FAPE) for each student with special needs. The law also requires every school to make a good faith effort to offer continuity of education using alternative methods while schools are physically closed, and to post their plans for continuity of education online.

The School District of Philadelphia (SDP) has published an outline of its continuity of education plan on its website, as well as guidance on how it plans to comply with the state law and provide education remotely. SDP recently released a more comprehensive continuity of education plan describing how planned instruction will resume, beginning on May 4, 2020, using Google classroom. SDP’s plan modifies expectations for students and teachers in the new environment. For example, while assignments after May 4 may be graded, grades in the final term of the school year can only improve a student’s grade point average.

As of April 20, 2020, SDP has provided Digital Learning resources for all grade levels.

What does SDP’s Digital Learning Plan mean for students with special needs?

SDP has detailed its expectations for special education teachers to provide remote lessons, and staff-members are also expected to participate in virtual IEP meetings and to continue writing IEPs and evaluation reports. To help close the gap in digital access, SDP is loaning Chromebooks to families without a computer at home. SDP is also coordinating with internet service providers to provide free or low-cost WiFi access to facilitate remote learning.

Further information about SDP’s unfolding plans is being posted here, under the Remote Learning & Teaching tab.

Special education due process hearings will be conducted virtually.

Berney & Sang will continue to post information as we learn more.

Resources

We are also aware of the following public resources for parents:

The following resources are also available to parents:

And teachers have access to these resources too:

Parents should also consider contacting the organizations listed on our Helpful Organizations page.

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Dave Berney Argues for Rights of Minors Facing School Discrimination before PA Supreme Court

March 16th, 2020|0 Comments

When a child faces discrimination, does the child’s right to sue depend on whether a parent takes prompt action, or may the child wait until adulthood and sue then? On March 10, 2020, in oral arguments before the Pennsylvania Supreme Court, Dave Berney, Esq., argued that the limitations period must stop for minors facing discrimination until they become adults and gain the legal capacity to sue.

The Court heard arguments on two questions in Nicole B. v. School District of Philadelphia: (1) whether Pennsylvania’s general purpose minority tolling statute, 42 Pa. C.S. § 5533(b)(i), applies to complaints filed with the Pennsylvania Human Relations Commission (PHRC); and (2) whether the Pennsylvania Human Relations Act (PHRA) itself, under 43 Pa.S. § 962(e), operates to toll the limitations period for minors.

In this case, a fourth-grader was the victim of discrimination, sexual harassment, and rape in school, facilitated by the school’s misconduct. But it took more than six months, the relevant time limit for adults, for a parent to file a PHRC complaint against the school district. Despite the language of Pennsylvania’s general purpose minority tolling statute—minors “shall have the same time for commencing an action after attaining majority as is allowed to others”—the school district argued that the PHRC complaint fell outside the scope of the statute’s protections. And, despite the language of the PHRA itself—allowing “equitable tolling”—the school district argued that minority tolling was outside the scope of that statute as well, leaving the child victim without legal recourse.

Mr. Berney argued for the child’s right to benefit from both the general purpose minority tolling statute and the PHRA’s equitable tolling provision. Relying on the text of both statutes, legislative intent, and longstanding principles of statutory construction, he argued that both statutes must be understood to protect the rights of minors facing discrimination in school.

With the rights of children in the Commonwealth at stake, Berney & Sang will post an update here when the Court issues its opinion.

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Robin Lipp in Legal Intelligencer: Why Philadelphia Public Schools Need More State Funding

December 21st, 2019|0 Comments

This week, associate attorney Robin Lipp published an article in the Legal Intelligencer surveying distressing signs in Philadelphia’s public schools. The article concludes that Philadelphia needs more state funds to address its basic problems, and that an ongoing lawsuit under the Pennsylvania Constitution will clarify the state’s legal obligation to provide adequate and equitable funding.

You can access the article here.

The Legal Intelligencer is Pennsylvania’s premier publication for legal news. Attorneys at Berney & Sang publish regularly in the Intelligencer about education and the law.

You can stay up to date by checking the News section of our website and following us on Twitter @BerneyLaw.

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Berney Delivers Win for Client: Family Prevails at Due Process, Obtaining Tuition and Compensatory Education

December 19th, 2019|0 Comments

This month, a family represented by partner David J. Berney prevailed in a special education due process hearing before the Pennsylvania Office of Dispute Resolution.  The family sued their child’s school district, alleging that it violated the child’s right to a free and appropriate public education under the Individuals with Disabilities Education Act.  With Dave’s assistance, the family obtained private-school tuition reimbursement and compensatory education services.

In the coming weeks, the Office of Dispute Resolution will post the decision, C.K. v. School District of Philadelphiahere.

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Attorney Robin Lipp, Former Law Clerk to U.S. District Judge Cathy Bissoon, Joins Berney & Sang

December 10th, 2019|0 Comments

Berney & Sang is excited to announce that Robin Lipp, Esq., is joining the firm as an associate attorney.  He brings to the firm his recent experience clerking for the Honorable Cathy Bissoon of the United States District Court for the Western District of Pennsylvania.

Robin earned his Juris Doctor from Harvard Law School and his Master of Public Policy degree from the Harvard Kennedy School of Government in 2014.  During his time in law school, Robin served as an Editor-in-Chief of the Harvard Civil Rights-Civil Liberties Law Review.  After graduating, he practiced as a legal fellow at the Vera Institute of Justice, before working at the Laura and John Arnold Foundation as a Manager for Results-Driven Government and then commencing his clerkship.

In his free time, Robin engages with local politics in Philadelphia, supporting candidates who seek to build a just and equitable society.  He has published an article in the Harvard Law and Policy Review on policing protests, and plans to continue writing on topics at the intersection of law and public policy.

Mr. Lipp can be reached at rdlipp@berneylaw.com.

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Golembiewski in Legal Intelligencer: Compensatory Education Can Help ELLs

October 2nd, 2019|0 Comments

Last week, senior associate Kevin Golembiewski published Compensatory Education Can Help Realize Promise to English Language Learners in the Legal Intelligencer.  In the article, Kevin explained that the Equal Educational Opportunities Act (EEOA), a federal law that guarantees English Language Learners (ELLs) equal educational opportunity, allows courts to award ELLs compensatory education when school districts deny them equal opportunity.  This is critical, Kevin stated, because compensatory-education awards can serve as a powerful tool not only for remediating discrimination against ELLs but also for incentivizing compliance with the EEOA.

The Legal Intelligencer is Pennsylvania’s premier publication for legal news.  Kevin and partner David J. Berney author an education law column for the Intelligencer.

You can access the article here.  Also, you can stay up-to-date on Berney & Sang’s publications and news by following the firm’s Twitter account.

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Commonwealth Court to Hear Wible v. School District of Philadelphia En Banc

September 30th, 2019|0 Comments

The Pennsylvania Commonwealth Court announced today that it will hear en banc Wible v. School District of Philadelphia, Berney & Sang’s landmark student-on-student bullying and harassment case.  The Court scheduled oral argument for November 13, 2019 at 930AM in the Commonwealth Court’s Philadelphia courtroom.

In the case, Berney Sang represents Amanda Wible, a Philadelphia student who was bullied and harassed because of her sex for more than half a decade.  Each day, classmates assaulted her, spat on her, destroyed her schoolwork, spread sexual rumors about her, and called her “bitch,” “she-he,” “dyke,” “fag,” “slut,” and other sexual epithets.  The District did nothing, perpetuating the harassment through inaction.

Amanda was ultimately forced to drop out of the District and enroll in a cyber charter school.  Thereafter, Berney & Sang represented her in a lawsuit against the District, alleging that it violated her rights under the Pennsylvania Human Relations Act by subjecting her to a sexually hostile school environment.

Last year, the Philadelphia Court of Common Pleas ruled in Amanda’s favor.  In a landmark decision, it confirmed that under state law, Pennsylvania’s public schools have a duty to address discriminatory student-on-student harassment.

The School District, however, appealed to the Pennsylvania Commonwealth Court, and in May 2019, Berney & Sang filed Amanda’s brief defending her verdict.  You can read it here.

The appeal has garnered national attention.  The Education Law Center and Women’s Law Project filed an amicus brief in support of Amanda, with public-interest organizations from across the country signing on.  The organizations include:

  • The American Association of University Women American Civil Liberties Union
  • The ACLU of Pennsylvania
  • Atlanta Women for Equality
  • California Women’s Law Center Education Law Center
  • End Rape on Campus
  • Gender Justice
  • Gwen’s Girls, Inc.
  • The Juvenile Law Center
  • Legal Voice
  • The National Council of Jewish Women Pittsburgh National Crittenton
  • The National Women’s Law Center
  • The Pennsylvania Chapter of the National Organization for Women (NOW)
  • The Pennsylvania Coalition Against Rape
  • The Philadelphia NOW Education Fund
  • The Southwest Women’s Law Center
  • WOAR-Philadelphia Center Against Sexual Violence
  • Women Against Abuse, Inc.
  • Women and Girls Foundation of Southwestern Pennsylvania
  • The Women’s Law Center of Maryland, Inc.

The Pennsylvania Human Relations Commission, the state’s anti-discrimination agency, also filed an amicus brief in support of Amanda.

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Berney & Sang Counsels Amicus Brief for Leading Learning-Disabilities Nonprofits

September 21st, 2019|0 Comments

This month, Berney & Sang filed an amicus brief in C.S. v. Butte School District, a special education case pending before the United States Court of Appeals for the Ninth Circuit.  Berney & Sang filed the brief on behalf of the National Center for Learning Disabilities, the Advocacy Institute, the Council for Learning Disabilities, and the Learning Rights Law Center.  The brief asks the Ninth Circuit to rule for C.S., a child with learning disabilities.

The brief argues that the Butte School District violated C.S.’s rights under the Individuals with Disabilities Education Act (IDEA) by failing to investigate and identify his learning disabilities.  Here’s an excerpt from the brief:

The IDEA requires school districts to perform comprehensive evaluations of children with disabilities. This requirement is critical for children like C.S. who have a specific learning disability. Children with learning disabilities present with a variety of learning challenges and unique needs. Without understanding the nuances of a child’s learning disability, school districts cannot develop a reasonably calculated educational program for him—any program developed without such an understanding amounts to guesswork.

Here, Butte School District made no effort to understand C.S.’s learning disabilities, thus failing to take the first basic step required to provide him an appropriate program. That failure doomed his educational program and violated the IDEA.

You can read the full brief here.

Hulit in Legal Intelligencer: Dependency Court is No Place for Truant Kids

June 19th, 2019|0 Comments

Associate Heather J. Hulit knows dependency court.  Before joining Berney & Sang, she served as a Child Advocate Attorney for seven years, representing children in Philadelphia dependency court.  Like other Pennsylvania counties, Philadelphia sends kids who struggle with school attendance to dependency court.  Heather’s experiences showed her that this practice is misguided.

She explains why in her new Legal Intelligencer article, Dependency Court is No Place for Truant Kids.  You can read the article here.

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Sang Presents at School Law Conference

June 13th, 2019|0 Comments

This month, partner Jennifer Sang presented at the Pennsylvania Bar Institute’s School Law Conference.  The Institute selected Ms. Sang and other well-known education attorneys to present on topics ranging from bullying and harassment to charter-school accountability.  Ms. Sang presented on special-education claims that arise when charter schools shut down and how courts have approached the claims.

Berney & Sang Defends Landmark School Harassment Verdict, Appeal Garners National Attention

May 24th, 2019|0 Comments

For more than half a decade, the School District of Philadelphia denied Amanda Wible equal educational opportunity.  Her peers had a chance to learn in a school setting free from severe or pervasive sexual harassment, but she was denied that chance.  Classmates sexually harassed her each day, assaulting her, spitting on her, destroying her schoolwork, spreading sexual rumors about her, and calling her “bitch,” “she-he,” “dyke,” “fag,” “slut,” and other sexual epithets.  The District did nothing, perpetuating the harassment through inaction.

Amanda was ultimately forced to drop out of the School District and enroll in a cyber charter school.  Thereafter, Berney & Sang represented her in a lawsuit against the School District, alleging that it violated her rights under the Pennsylvania Human Relations Act by subjecting her to a sexually hostile school environment.

Last year, the Philadelphia Court of Common Pleas ruled in Amanda’s favor.  In a landmark decision, it confirmed that under state law Pennsylvania’s public schools have a duty to address discriminatory student-on-student harassment.

The School District, however, appealed to the Pennsylvania Commonwealth Court.  On May 22, 2019, Berney & Sang filed Amanda’s brief defending her verdict.  You can read it here.

The appeal has garnered national attention.  The Education Law Center and Women’s Law Project filed an amicus brief in support of Amanda, with public-interest organizations from across the country signing on.  The organizations include:

  • The American Association of University Women American Civil Liberties Union
  • The ACLU of Pennsylvania
  • Atlanta Women for Equality
  • California Women’s Law Center Education Law Center
  • End Rape on Campus
  • Gender Justice
  • Gwen’s Girls, Inc.
  • The Juvenile Law Center
  • Legal Voice
  • The National Council of Jewish Women Pittsburgh National Crittenton
  • The National Women’s Law Center
  • The Pennsylvania Chapter of the National Organization for Women (NOW)
  • The Pennsylvania Coalition Against Rape
  • The Philadelphia NOW Education Fund
  • The Southwest Women’s Law Center
  • WOAR-Philadelphia Center Against Sexual Violence
  • Women Against Abuse, Inc.
  • Women and Girls Foundation of Southwestern Pennsylvania
  • The Women’s Law Center of Maryland, Inc.

The Pennsylvania Human Relations Commission, the state’s anti-discrimination agency, also filed an amicus brief in support of Amanda.

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Berney & Sang Client Prevails in Federal Court, Obtains Private-School Tuition

April 23rd, 2019|0 Comments

This month, the District Court for the Eastern District of Pennsylvania ruled for a Berney & Sang client in a special-education case against the Pennsylvania Department of Education.  The District Court ordered the Department to provide private-school tuition for the client’s two children.  The children, both of whom qualify for special-education services, previously attended a charter school which had a duty under the Individuals with Disabilities Education Act to pay the tuition, but it failed to do so and then closed down.  The client therefore sued the Department in a special-education due process hearing, arguing that the Department must step in for the charter school.  The client prevailed in the hearing, and the Department appealed to the District Court, which upheld the hearing decision and ruled for the client.

The District Court’s decision is Commonwealth Department of Education v. D.E., No. 17-4433 (Apr. 5, 2019).

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Berney to Present at 2019 Special Education Law Conference

March 29th, 2019|0 Comments

Partner David J. Berney will be co-presenting at the upcoming 2019 Special Education Law Conference.  His presentation will address parents’ rights of access to student records under the Family Educational Rights and Privacy Act (FERPA), the Individuals with Disabilities Education Act (IDEA), and Pennsylvania law.  Mr. Berney will analyze the substantive laws that afford parents the right to access their child’s records, the records that are covered under those laws, and the records that parents have no right to access.

Kalra Secures Tuition Reimbursement and Comp Ed for Family

March 28th, 2019|0 Comments

This week, parents represented by attorney Vanita Kalra prevailed in a special education due process hearing against their child’s school district.  With Vanita’s assistance, the parents obtained compensatory education services and a year of private-school tuition reimbursement.

A hearing officer from the Pennsylvania Office of Dispute Resolution decided the case.  The decision will soon be available here.

Golembiewski in Legal Intelligencer: Court hands major win to families in case against the Dep’t of Education

March 21st, 2019|0 Comments

This week, associate Kevin Golembiewski published an article in the Legal Intelligencer highlighting a recent federal-court decision ordering the U.S. Department of Education to honor Obama-era regulations that address racial disparities in special education.  The decision is a major win for families.  The Council of Parents Attorneys and Advocates was the plaintiff in the case.

Here’s the article’s introduction:

The U.S. Department of Education did not do its homework. In 2018, it halted Obama-era regulations that address racial disparities in special education, but according to the U.S. District Court for the District of Columbia, the department did not perform the necessary analysis before doing so. That failure violated not only mom’s cardinal rule (do your homework!) but also the Administrative Procedure Act. So the court vacated the department’s decision to halt the regulations, handing a major victory to children with disabilities and their families.

You can read the full article here.

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Berney & Sang Secures Over $135K of Comp Ed for Client in Federal Court

February 17th, 2019|0 Comments

This month, Berney & Sang secured over $135,000 of compensatory education for a parent and child in federal court.  The case, Jada H. v. Pennsylvania Department of Education, arose under the Individuals with Disabilities Education Act (IDEA).  The child was denied a free and appropriate public education (FAPE) while attending a charter school, but the charter school closed without remedying the denial.  Therefore, the parent, Jada H., sought relief (compensatory education) from the Pennsylvania Department of Education.

Berney & Sang helped Jada H. secure the compensatory education.  First, the firm represented her in a due process hearing before the Pennsylvania Office of Dispute Resolution.  The hearing officer, however, dismissed Jada H.’s IDEA claims.  She therefore filed a complaint in federal court (the District Court for the Eastern District of Pennsylvania) challenging the hearing officer’s decision.  On February 4, 2019, the court ruled for her, vacating the decision and awarding her over $135,000 of compensatory education.

You can read the federal court’s opinion here.

 

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Attorney Heather Hulit, Longtime Advocate for Children, Joins Berney & Sang

February 14th, 2019|0 Comments

Berney & Sang is excited to announce that Heather Hulit, Esquire, is joining the firm as an associate attorney.  She brings to the firm years of experience fighting for children’s rights.  After graduating from Temple Law in 2012, Ms. Hulit served as a Child Advocate Attorney with the Philadelphia Defender Association for several years.  In that role, she represented countless youth in dependency proceedings.  Committed to continuing her work on behalf of children, Ms. Hulit will focus her practice at Berney & Sang on education law.

Ms. Hulit can be reached at hjhulit@berneylaw.com.

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Super Lawyers Selects Golembiewski as 2019 Rising Star

January 11th, 2019|0 Comments

Berney & Sang is proud to announce that Super Lawyers has selected associate Kevin Golembiewski as a 2019 Rising Star.  Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high-degree of peer recognition and professional achievement.  The selection process includes independent research, peer nominations, and peer evaluations. 

Congratulations Kevin! 

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