Leigh Law Group partner Mandy Leigh argues case before 9th Circuit Court of Appeals

Leigh Law Group founder and partner Mandy Leigh recently argued before the United States Ninth Circuit Court of Appeals in a longstanding special education case raising issues of first impression in the Ninth Circuit.

Any appearance before a Ninth Circuit panel is of course a privilege but more so in this case due to the participation of the United States Department of Justice who argued in favor of an interpretation of the Individuals with Disabilities in Education Act (IDEA) urged by Ms. Leigh.

The issue of first impression revolved around the interpretation of whether an auditory processing disorder constituted an “other health impairment” for purposes of IDEA eligibility.  Leigh Law Group consistently argued that point in district court proceeding in the case stretching over 8 years.  The history of the case is well articulated by a previous Ninth Circuit opinion in the case here.

The United States Department of Education, the agency charged with interpretation of the IDEA regulations regarding categories of eligibility, concurred and its interpretation of the regulations is entitled to “Chevron” deference, a standard derived from the United States Supreme Court case of Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 ( 1984).  Chevron deference means that the agency’s interpretation will be deferred to so long as it is a permissible one.  Here, the interpretation that an auditory processing disorder may constitute an other health impairment appears to be a permissible interpretation of the IDEA.

Ms. Leigh then zealously advocated for her client’s eligibility at the time in question, due to his chronic auditory processing disorder which adversely impacted his education, in response to questioning from the panel of judges.  Regardless of the ultimate result, this case will help define the contours of the IDEA for educators, parents, the judiciary and administrative bodies and legal representatives in the States of California, Washington, Oregon, Idaho, Montana,  Nevada, Arizona and Hawaii and Alaska.

Leigh Law Group considers it an honor to participate in the shaping of law and the process of resolving disputes.  Only from fidelity to legal precepts and principles can an orderly society maintain. Leigh Law Group is a California law firm located in San Francisco and Marin counties practicing in the areas of special education law, education law, higher education law, employment law, business litigation and civil rights litigation.

Audio Taping the IEP: Know Your Rights

Audio Record the IEP Meeting.

While the IDEA, the federal laws protecting special education rights, doesn’t specifically mention audio recording, California law does allow audio recording of an IEP.  Each state may have its own laws related to IEP audio recording.

Know that in California at least, you can audio record an IEP if you give the school district advance notice (at least 24 hours notice in writing).  This can be helpful if you are nervous about getting accurate notes of the meeting and if you want to create a record of what was actually said.  It also can be helpful later on if you get into a dispute with the district.  If you audio record the IEP, the District can also audio record.

Audio recording is allowed in California.

California Education Code §56341.1.(g) states:

(1) Notwithstanding Section 632 of the Penal Code, the parent or guardian or local educational agency shall have the right to record electronically the proceedings of individualized education program team meetings on an audiotape recorder. The parent or guardian or local educational agency shall notify the members of the individualized education program team of his, her, or its intent to record a meeting at least 24 hours prior to the meeting. If the local educational agency initiates the notice of intent to audiotape record a meeting and the parent or guardian objects or refuses to attend the meeting because it will be tape recorded, the meeting shall not be recorded on an audiotape recorder.

The audio recording provisions of the Education Code incorporation provisions of federal law. The code  protects the audio recordings under the Family Educational Rights and Privacy Act specifically incorporating confidentiality provisions from the Act. Any recording of an IEP that is maintained by the school as an education record requires the school district to apply the protections of the Family Educational Right to Privacy Act.

Additionally, pursuant to the Family Education Rights And Privacy Act, the Education Code states that with respect to the audio recording of the IEP meetings, parents have the following rights:

   (i) Inspect and review the audio recordings.

   (ii) Request that the audio recordings be amended if the parent or guardian believes that they contain information that is inaccurate, misleading, or in violation of the rights of privacy or other rights of the individual with exceptional needs.

 

Moreover, to the extent that a school district has a policy about audio recording the IEP, that policy may not be more restrictive than the rights to audio record pursuant to state law and that policy must provide for exceptions to the extent that the audio recording is necessary to comply with the parents right to understand the IEP and make informed decision about the IEP and the IEP process.