Current Cases & Themes in Region 5 States Related to BIE Schools & Compliance with IDEA & the Role of the P&A

7/31/2019 Current Cases & Themes in Region 5 States Related to BIE Schools & Compliance with IDEA & the Role of the P&A

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Major Topics The Bureau of Indian Education (BIE) The Interplay between IDEA, state law, and

the Tribally Controlled Schools Act Enforcement Mechanisms Unique Legal Issues on the Reservation


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Historical Context Federal Indian Policy

Compulsory Attendance Use of Boarding Schools to assimilate students

into the dominate society Shift in policy to Self-Determination

Indian Self-Determination Act Impact on the Bureau of Indian Affairs


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Modern Day Considerations Bureau of Indian Education ( BIE )

Federal agency housed within the Department of theInterior

Operates schools directly or provides fundingto tribally controlled schools

Functions as the SEA for both BIE-fundedand BIE-operated schools

Received $65,293,291 in 2007 from OSEP to servechildren with disabilities ages 5-21


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Statistics 183 Schools 23 States

Primarily in Arizona, New Mexico & the Dakotas 63 Reservations 49,220 Native American Students

21% of BIE Students receive Special Ed services 13% of Public School Students nationwide

receive services


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IDEA, State Law &

Tribally Controlled Schools Act Although amended in 2004, BIE has yet to finalize new

regulations for the implementation of IDEA BIE recommends that each school follow the state standards

for the state in which the school is located NCLB dictates that BIE and BIE-funded schools use the

assessment system of the states in which they are located

[P.L. 107-110 1111(m)] BIE schools must follow 23 different definitions of AYP


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IDEA, State Law &

Tribally Controlled Schools Act

Tribally Controlled Schools Act The Tribally Controlled Schools Act of 1988, 25 U.S.C. 2501, et seq. Recognition of sovereign interests in community control of public

education system Provides funding to Tribes or tribal organizations that operate schools

under either a contract or grant or that have assumed the operation of

a BIE school A grant can be terminated only by one of the following methods:

Retrocession; Revocation of eligibility by the Secretary; or Reassumption by the Secretary


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Judicial Interpretation of BIEs Role


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Additional Judicial Concerns Glacier County Sch. Dist. v. Galbreath, 1997

a tribe could not regulate the administration and operation of a publicschool located on non-Indian fee land within a reservation

Lewis County v. Allen, 1994it may very well be that by creating a school district and constructing

and operating schools within the reservation, ... [a state] create[s] a

consensual relationship with the tribe under the first Montana

exception.

Meyers v. Board of Educ., 1995... the District, the State, the United States, and the Navajo Nation each has a duty to educate the children of Navajo Mountain. The duty of

one does not relieve any other of its own obligation. ..."


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Enforcement Mechanisms Compliance complaints

Filed with the BIE to investigate the BIE Mediation Due Process Hearings

Moving target

Ever-changing policies & procedures


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Complaint Process What the BIE Procedural Safeguards Say

Any Individual or Organization May File a State ComplaintAlleging a Violation of Any Part B Requirement by aSchool, the BIE or Other Public Agency

The BIE Must Conduct an Investigation and Issue aWritten Decision to the Complainant Within 60 Days

Is This REAL? BIE did NOT Respond to a Complaint Filed by the Native

American Disability Law Center Concerning DPHO List,Impartiality and Qualifications

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Mediation What the BIE Procedural Safeguards Say

BIE Maintains List of Qualified Mediators Selected on aRandom, Rotational or Other Impartial Basis

However, the REALITY Is BIE Does NOT Maintain a List of Qualified Mediators BIEs Failure to Maintain the List Causes Delays and

Impedes Parents Access to Timely Mediation and toRandom Rotations or Other Impartial Basis for Mediator

Assignment14


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Due Process What the BIE Procedural Safeguards Say

BIE Uses Impartial Due Process Hearing Officersas Defined by IDEA

Each BIE School Maintains a List of Persons WhoServe as DPHOs with a Statement ofQualifications

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Due Process

However, the REALITY Is BIE Uses Department of Interior, Office of Hearing and

Appeals, Administrative Law Judges for IDEA DueProcess Hearings

Schools Do NOT Maintain a List of DPHOs andStatement of Qualifications

Under Regulations Governing DOI, the Secretary ofInterior Can Take Over a Case From an ALJ at Any TimeDuring Proceeding 16


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Issues Unique to Indian Country When is suspension/expulsion from the dormitory a change

in placement? Identification of LD and cultural disadvantage Service of Process on the Reservation Indian Gaming Money and Self-Funded Schools

How are the rights of students with disabilities preserved? NCLB

Highly qualified teachers? How to obtain NCLB remedies in remote areas?


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Issues Unique to Indian Country Lack of Procedures Compliant with IDEA Families Dont Understand their Rights and

Procedures are Not Used Families Feel Hopeless

You cant do anything about the BIE. School Choice and Student Movement 18


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Advocacy Challenges & Strategies Ensure that you understand cultural and linguistic differences

and that assessments and evaluations address these Be prepared to address geographic and communication

barriers Obtain a copy of the BIE Division of Performance

and Accountability Special Education Policies

and Procedures Determine the relationship of the school to the Tribe and BIE

and who has jurisdiction


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Understandable/Native Language Use of Lay Interpreters Adequacy of Interpretation Use of School Personnel

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Service Issues Suspension/Expulsion

Lack of Services During Suspension/Expulsion Lack of Adequate FBAs, BIPs and Evidence-

Based Interventions

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Service Issues

Continuum of Placements RTC Placement Delays Payment Social Services

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Services Issues

Medication Evaluations

Referrals versus Evaluations Medical Evaluations

IEEs

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Next Steps? Increase Awareness in Communities that There is

Relief Available Encourage More Advocates and Attorneys to GetInvolved in BIE Cases Pursue Complaint Process and Other Remedies

Related to Lack of Compliant Process Use Advocacy and Due Process to Increase Access

to Expertise Needed by Students in TheirEducational Programs 24


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Resources Bureau of Indian Education

http://enan.bia.edu Compilation of State Indian Education Laws

www.narf.org/pubs/edu/blue.pdf Tribal Court Clearinghouse

www.tribal-institute.org Native American Disability Law Center

www.nativedisabilitylaw.org National Indian Parent Information Center

www.nipic.org

Documents

Current Cases & Themes in Region 5 States Related to BIE Schools & Compliance with IDEA & the Role of the P&A