Unraveling the Right to Special Education in Indian Country

Therese E. Yanan Co-Director of Program Services Native American Disability Law Center, Inc.

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

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

Modern Day Considerations

Bureau of Indian Education ( BIE )

Federal agency housed within the Department of the Interior Operates schools directly or provides funding " to tribally controlled schools Functions as the SEA for both BIE-funded " and BIE-operated schools Received $65,293,291 in 2007 from OSEP to serve children with disabilities ages 5-21

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

IDEA, State Law & Tribally Controlled Schools Act

Individuals with Disabilities Education Act

BIE receives Part B funding through a Memorandum of Agreement with the US Department of Education

USDOE serves as monitor

BIE does not serve preschool aged students, although funding ows from USDOE to Tribe & State to serve this population In Arizona, New Mexico, and Maine, BIE schools have voluntarily assumed some role in child nd but not in the provision of services for students ages 3-5

IDEA, State Law & Tribally Controlled Schools Act

Although amended in 2004, BIE has yet to nalize 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 denitions of AYP

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

Provision of FAPE in TCSA Schools

BIE is obligated to ensure that tribally controlled schools comply with the IDEA The BIE is the SEA, not the Tribe The IDEA requires an assurance that the Department of the Interior will cooperate with the Department of Education in its exercise of monitoring and oversight. ... IDEA regulations promulgated to govern SEAs also apply to the Secretary of the Interior

Judicial Interpretation of BIEs Role

Additional Judicial Concerns

Glacier County Sch. Dist. v. Galbreath, 1997 a tribe could not regulate the administration and operation of a public school located on non-Indian fee land within a reservation Lewis County v. Allen, 1994 it 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 rst 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. ..."

Enforcement Mechanisms

Compliance complaints

Filed with the BIE to investigate the BIE

Mediation Due Process Hearings

Moving target Ever-changing policies & procedures

Complaint Process

What the BIE Procedural Safeguards Say

Any Individual or Organization May File a State Complaint Alleging a Violation of Any Part B Requirement by a School, the BIE or Other Public Agency The BIE Must Conduct an Investigation and Issue a Written 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 Qualications

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Mediation

What the BIE Procedural Safeguards Say

BIE Maintains List of Qualied Mediators Selected on a Random, Rotational or Other Impartial Basis

However, the REALITY Is

BIE Does NOT Maintain a List of Qualied Mediators BIEs Failure to Maintain the List Causes Delays and Impedes Parents Access to Timely Mediation and to Random Rotations or Other Impartial Basis for Mediator Assignment
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Due Process

What the BIE Procedural Safeguards Say

BIE Uses Impartial Due Process Hearing Ofcers as Dened by IDEA Each BIE School Maintains a List of Persons Who Serve as DPHOs with a Statement of Qualications
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Due Process

However, the REALITY Is

BIE Uses Department of Interior, Ofce of Hearing and Appeals, Administrative Law Judges for IDEA Due Process Hearings Schools Do NOT Maintain a List of DPHOs and Statement of Qualications Under Regulations Governing DOI, the Secretary of Interior Can Take Over a Case From an ALJ at Any Time 16 During Proceeding

Issues Unique to Indian Country

When is suspension/expulsion from the dormitory a change in placement? Identication 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 qualied teachers? How to obtain NCLB remedies in remote areas?

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

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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

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 EvidenceBased 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 Get Involved 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 Their 24 Educational Programs

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