In this issue:
- Disability Rights Ohio continues to monitor state school funding proposal, its impact on Doe case
- Chief Legal Counsel Sue Tobin issues statement on ODE seclusion and restraint policy, rule
- Big victory in groundbreaking case: Right to counsel for those under guardianship upheld by Ohio Supreme Court
- Help us keep the victories coming! Donate online to Disability Rights Ohio
- Action and results: Case summaries
Last week, Gov. John Kasich's administration described a new “student-focused” system of school funding. The administration claims that no school district will see a funding decrease over the next two years and that state spending on K-12 programs will increase by 6.7% and 4.1% in respective years of the upcoming biennium, compared to the current biennium. General revenue fund allocations for K-12 education in the budget would be about $7.4 billion in fiscal year 2014 and $7.7 billion in FY 2015, the administration reported.
However, also last week, Policy Matters released a report on the current biennial budget, urging state lawmakers to make greater investments in Ohio's school children. The report states that in 2011, the Ohio General Assembly passed, and the governor signed, a budget for the current biennium (FY 2012-13) that included $1.8 billion less in overall funding for K-12 education than the previous two-year budget.
Disability Rights Ohio will be reviewing the proposal and monitoring the education budget as it proceeds through the legislative process, to determine its impact on the case of Doe v. State of Ohio.
Doe is a certified class action lawsuit brought on behalf of over 260,000 preschool and school-age Ohio students with disabilities. The defendants include the Governor, the State of Ohio and state education officials. The case is scheduled for trial in December 2013 before the U.S. District Court for the Southern District of Ohio, Eastern Division.
The plaintiffs claim that Ohio’s system of funding special education causes widespread violations of the Individuals with Disabilities Education Act (IDEA) requirement for the provision of a free appropriate public education and discriminates against students with disabilities, in violation of Section 504 of the Rehabilitation Act of 1973.
Specifically, the plaintiffs allege that although the state adopted a cost-based formula that is weighted per pupil, it has failed to fully fund it. As a result, school district officials in financially strapped districts make decisions about the provision of services to students with disabilities based on the availability of funds instead of the individualized needs of the student. The lack of appropriate services results in students being placed in overly restrictive educational settings, in violation of the federal law requirement that services must be delivered in the least restrictive setting, which can also lead to a lack of meaningful educational progress for those students.
If the plaintiffs prevail, the court could order the State to remedy its failure to comply with federal laws by providing full funding for special education services.
The Ohio Department of Education last month approved a policy and a rule that would create statewide standards around seclusion and restraint of students in schools. Disability Rights Ohio has released the following statement from its Chief Legal Counsel Sue Tobin:
The proposed adoption of a rule regulating the use of restraint and seclusion in Ohio schools is welcomed and long overdue. It provides for their use as a last resort and only in the case of serious and imminent harm to the student or others. We hope that this rule will end some of practices observed during the course of our investigations, such as the use of seclusion for minor behaviors and the use of restraints that restrict a student’s breathing.
While there are many positive aspects to the rule, we are disappointed that the rule does not ban seclusion, which prevents a student from leaving, and fails to include community schools. No research supports the use of seclusion as therapeutic, effective or as an instructional strategy. To the contrary, research shows that individuals often suffer physical and emotional harm when placed in solitary confinement against their will. Schools should provide sensory and calming environments when needed by the student, but these settings are different than seclusion in their purpose and effect.
We applaud requirements for: notification to parents, reporting and oversight by the Ohio Department of Education, a system for registering complaints about violations of the rule, prohibition of techniques that restrict breathing, prohibitions on the use of restraint and seclusion for the purpose of punishment, convenience of staff or as a substitute for appropriate positive services and supports, and prohibition of seclusion in a locked room.
We hope that school districts will embrace these rules and will implement positive, research-based strategies that ultimately will result in the elimination of the use of seclusion and restraint of Ohio’s school children.
View the whole text of the ODE rule: 3301-35-15 Standards concerning the implementation of positive behavior intervention supports and of restraint and seclusion [PDF]
View the whole text of the ODE policy: Policy on Positive Behavior Interventions and Support, and Restraint and Seclusion [PDF}
Big victory in groundbreaking case: Right to counsel for those under guardianship upheld by Ohio Supreme Court
On January 16, 2013, the Ohio Supreme Court unanimously affirmed the right of individuals under guardianship to be represented by a court-appointed lawyer during review hearings to determine whether they continue to need a guardian. Disability Rights Ohio brought this case on behalf of Mr. James McQueen, who resides in a locked nursing facility in Cuyahoga County by order of his court-appointed guardian, who is neither a family member nor a friend. Mr. McQueen no longer wishes to live in the facility and had applied for a review of his case to end guardianship.
Under Ohio law, a guardian is appointed for someone who can no longer make his or her own decisions. Once guardianship is granted, the ward loses legal power over his or her own affairs. Given this significant removal of individual rights, citizens in Ohio have long had a right to an attorney before a guardian is appointed. This case breaks new ground by affirming the continued right of these individuals to a lawyer at all subsequent review hearings. Mr. McQueen will now receive his day in court with an attorney.
“This landmark decision will have a lasting statewide impact,” says Kerstin Sjoberg-Witt, Legal Director of Disability Rights Ohio. “Anyone under a guardianship, both currently and in the future, now has a clear legal right to an attorney when challenging the need for a guardian.”
The court’s decision was unanimous. All of the Justices agreed that the right to a review hearing included the right to a court-appointed attorney under R.C. 2111.49(C) (emphasis added): “a hearing shall be held in accordance with section 2111.02 of the Revised Code to evaluate the continued necessity of the guardianship.” Therefore, to not provide an attorney would make the “accordance with” language “meaningless.”
Additional language in the ruling clarified that where the law provides for an appointed attorney, mandamus is an appropriate avenue to use when a lower court fails to appoint an attorney. Mandamus is a legal remedy that forces a court or other government entity to uphold a law or make a ruling on a law as written.
Disability Rights Ohio thanks Mr. McQueen for his steadfast endurance in this case, which took more than one year. We also thank all of the amici curiae, who provided valuable insight to the court about the importance of Mr. McQueen's right and its impact on the way probate courts operate in Ohio.
- Advocates for Basic Legal Equality, Inc.
- Community Legal Aid Services, Inc.
- Legal Aid of Western Ohio
- Legal Aid Society of Cleveland
- Legal Aid Society of Columbus
- Legal Aid Society of Southwest Ohio
- National Alliance on Mental Illness (NAMI) of Ohio
- National Coalition for a Civil Right to Counsel
- Ohio Poverty Law Center, LLC
- People First of Ohio
- Pro Seniors, Inc.
- Southeastern Ohio Legal Services
- The Arc of Ohio
R. Jeffery Pollock of McDonald Hopkins LLC served as counsel for The Arc of Ohio, National Alliance on Mental Illness (NAMI) of Ohio, and People First of Ohio in preparing the brief.
We had two big wins in just one week: the Ohio Department of Education's changes to the seclusion and restraint policy and rule in Ohio's public schools and the Ohio Supreme Court's unanimous opinion that individuals under guardianship have a right to a lawyer during their review hearings.
When these cases came through, our staff at Disability Rights Ohio headquarters literally cheered; it was cause for celebration. These victories are a big deal to us and an even bigger deal to individuals with disabilities, both now and in the future. We believe people with disabilities should be allowed to participate in the community and have a say in how they live, just like people who live without a disability. There is always more to do, but we need your help.
Disability Rights Ohio can now accept donations via PayPal. You can find the PayPal button on our Donate page. Please consider making a donation yourself or come up with a creative way to raise money for our cause. Thank you so much for your support!
Disability Rights Ohio assists student in self-advocacy to receive accommodations for exam
A high school student will have the opportunity to take a college admittance exam with accommodations for his disability thanks to assistance from Disability Rights Ohio.
The student’s disability effects his long term memory retrieval and concentration. He requested accommodations for his disability four times, and was denied each time. His parent contacted Disability Rights Ohio for assistance. Two staff attorneys responded to the request by negotiating with the exam board to approve his disability as one that would require accommodations. The board approved the diagnosis, and agreed to provide the requested accommodation. The student will take the exam next month.
Legal action helps young man get compensation after boss refuses to reinstate his job
An intelligent young man with a psychiatric disability was terminated from his employment last summer after he had to be hospitalized briefly because of his disability. Although he fully recovered and his doctors decided that he was able to resume his work duties, his employer refused to allow him to return.
This individual strongly desired to work again, so Disability Rights Ohio represented him before the Ohio Civil Rights Commission, where he filed an administrative complaint alleging that his termination was based on unlawful disability discrimination. There was no dispute about his ability to do his job, and there was strong evidence that his former employer had acted under the stereotypical notion that he could not do so merely because he has a disability.
The parties ultimately settled the case, and the individual was compensated for the entire time he was unemployed. He is now working at another job.