Why We Do What We Do
Sometimes it's helpful for parents to utilize an advocate to help negotiate better services for children.
Here are some advocates who have helped families in past cases and may be available to help you with your case. None of the individuals named below are affiliated with, paid by or employed by Dorene Philpot or Philpot Law Office PLLC.
Texas Parent Advocates
Pat Alvarez, advocate
Advocacy for Living in Mainstream America
Austin, TX 78709
David Beinke, advocate
Tammy Cyra, M.Ed., LCDC
Dudley Advocacy & Consulting
P.O. Box 3846
Beaumont, TX 77704
Louis Geigerman, advocate
Rose Henke – Bilingual English and Spanish
Diana Pharr, advocate
Robin Rettie, advocate
Lighthouse Learning & Resource
10928 Grant Road
Houston, TX 77070
Chief Education Officer
Rich Educational Consulting, LLC
Sidney Wohlman, advocate
Being An Advocate
1. Try your best to sustain relationships.
Whether or not we personally like our child's teachers, school psychologist, school social worker, principal or other administrative personnel, we are stuck with them unless we move. If we move, we will be stuck with new school officials with whom we have conflict. Or new, difficult people will be promoted into established positions.
In any event, we have to learn to work with people we do not understand, agree with or get along with. They are there, and will be there all year, year after year. Getting personally angry with them, even if they deserve it, leads to hostility down the line.
Now hostility can have its place, as in a lawsuit or a Due Process Hearing. However, if parties get that far, any chance for a working relationship is dead. Because it is in the best interests of our children to have a cohesive team working toward a common goal, parents must take a leadership role in sustaining the team atmosphere.
It is not enough to come into a meeting periodically and make demands, even legitimate, legal demands. You must model the behavior we want to draw out in our children's IEP team.
- If we want the other team members to be patient, prepared, and educated about the child's needs, we must set the standard. Therefore you must:
- Attempt to understand them and the demands on their time.
- Be patient with them as they learn our child's method of learning.
- Be prepared and secure helpful test results on our child's development, articles or other related materials, and then share them.
- Be as educated or more educated about the objective realities of the child's disability so that you can talk to other team members as peers.
2. Keep the focus on the child's needs, not the district's resources or the parents' expectations.
Under the Individuals with Disabilities in Education Act (IDEA), Congress set forth certain protections for children with special needs. At its core, IDEA is designed to make sure that disabled children have access to a "free and appropriate public education" in the "least restrictive environment".
The United States Supreme Court has been relentless in its insistence that IDEA may not be used to force a school district to "maximize" a child's "potential". If a child is getting a "meaningful educational benefit" and making progress that can be objectively measured, then most courts will conclude that IDEA has done its job -even if most parents would consider the results basic or minimal.
Parents must obtain independent medical and/or developmental assessments for their disabled children! Without clinical data, there is no reliable starting point for the journey.
I emphasize the need to have independent clinical medical, psychological, and /or educational or evaluations done - not evaluations through the school district or by a practitioner selected by the district.
Because IDEA has provisions, which, under certain circumstances, require school districts to pay for evaluations (ostensibly to make the field more level for low-income families), many parents who can afford an independent evaluation fail to get one.
Yes, these tests are often burdensome and expensive. Do them anyway.
These evaluations help parents to understand the precise nature of their child's disability, and in so doing, obtain the necessary information to formulate a cohesive strategy for dealing with it. This is especially true if the nature of the disability has a hidden educational impact.
IDEA requires only that school districts pay for special services like speech, occupational or physical therapy if doing so gives an educational benefit, not just a medical one. In other words, the disability has to effect learning.
However, school district evaluations are still school district material. If there is a hearing or lawsuit, these tests are crucial evidence. Parents will have more faith in the truth of these tests when they choose the professionals who administer them. In the event that a test does not accurately reflect a child's abilities, parents who get these evaluations independently have a choice about whether to share this information with the district - something they could not control if the tests were done by the district.
These outside evaluations have another benefit in that they relieve the parties from subjective disagreements. The results speak for themselves. No one is to blame for this information. In fact, third-party reports give a willing school administrator a way to justify a difficult or politically unpopular decision to grant services.
For instance, if a child is going into kindergarten and the parents wanted her to have a full-day program with kindergarten in the morning and Early Childhood in the afternoon but the school district had a "policy" (read "budget issue") against this.
If the parents took the child to her yearly reevaluation by professionals, and those professionals determined that the child needed a full-day program and prepared a report citing this recommendation, this report could be useful when presented to the school, in terms of the education and services offered by the school.
Specific, Measurable, Realistic IEP Goals
The IEP is designed to list specific educational goals for the child. Make sure the goals are realistic, specifically stated, and penned in layman's terms. As the school year unfolds, the team can look at these goals to objectively assess the child's progress. To this end, IDEA requires that the goals as they appear on the IEP form must be something that can be objectively measured.
Avoid generalized goals, as "Johnny will be able to attend in the classroom with increasing frequency." This phrase leaves Johnny's progress open to subjective evaluation. Disagreements about subjective evaluations lead to bluffing and defensive postures on all sides. Where does this leave Johnny?
If the goal read: "Johnny will be able to complete grade-appropriate class work during class time, up to 75% accuracy" the parties can evaluate what Johnny is doing in class and objectively measure this against the goal. If Johnny cannot finish a spelling test with his class with 75% accuracy, the team can agree on his inability to meet the goal.
This keeps the focus on Johnny and away from the other team members. When everyone can agree on the problem, it is much easier to brainstorm about new interventions that can help him learn, or whether the goal should be modified (e.g.: "...up to 50% accuracy", etc.).
Also, ask for some kind of mechanism to be placed in the IEP for records of Johnny's successes and failures.
At due process, the school will always say that Johnny is making progress toward his goals and objectives. Make them prove it with objective data.
3. Build your record.
What if you are right? What if school personnel are flatly incompetent? Do not say it. Show it!
Be reasonable and calm while you admit that you are concerned about how a situation is developing. Be prepared to show, objectively, how your child is not meeting his goals. Produce reports, articles or test results that will persuade an objective listener (like a due process hearing officer or a judge) why your suggestions are reasonable.
If you can lay out a "court ready" case at this level, everyone will quickly read the handwriting on the wall. Threats and accusations are unnecessary. The facts speak for themselves. Of course, this assumes that you have some facts on your side.
Do not shy away from the damning evidence. Develop a strategy to deal with it. A good lawyer knows all the strengths and weaknesses of her case. We know where we expect to have trouble and prepare for this as best as we can. Again, objective data from non-school district personnel is the best place to start.
Independent medical, developmental and psychologist's evaluations and private therapists' reports and evaluations are crucial to setting up the facts. So are third-party advocates or therapists who come to the school and observe your child in his school environment. You have to listen to what these reports and third parties tell you.
Parents must be willing to face the reality of their child's abilities
If your child has tantrums when frustrated, do not demand that his day be frustration-free. Provide and document solutions how the frustrations and tantrums should be handled.
You are not being disloyal to your child by admitting his problem areas. You are being disloyal to your child if you do not prepare for them. Get the facts in writing. Do not rely on your own opinions and feelings.
This is not to say that parental opinions and feelings are bad. In fact, they are wonderful. No one knows your child better than you do. In addition to what we may think or feel in our guts, we need to understand of what we can reasonably expect for our child in the classroom environment in a given timeframe.
We will fall flat on our faces if we indulge in the belief that our opinions, by themselves, will persuade an objective hearing officer or judge that we are right in any contested issue. Courts sympathize with parents but do not defer to parents.
Parents are expected to be many things for our children but "objective" is not one of these things. They are, by Nature's design, the least objective persons in the room. Cull and collect objective evidence to buttress any argument you have.
If you get caught off-guard on an issue in an IEP meeting and believe you need written back-up for your position, adjourn the meeting and reconvene when you have a chance to have your child assessed by a qualified professional. IDEA does not require the parents to be rushed into anything.
4. Have a little faith.
In the field of education, it makes sense to be optimistic. Think about it: No one becomes a teacher, an aide, an administrator or a facilitator because of the money, the hours or the fame. They do this because they want to make a difference to children.
Of course, intelligent people will disagree about the proper way to make that difference. Those persons closest to the children will have a different perspective than administrators.
Very few, if any, of the people you will meet in your child's school is out to hurt anyone.
Be alert for the occasional bad apple. Generally, give your child's team some credit for acting in good faith. If they need education, supply it. If you disagree, try to work it out without getting personal. Do not demonize well-intentioned people. Utilize them. Even if they have priorities that you cannot share, they can turn out to be of great help to your child.
Expert opinions are necessary in special education. No matter how knowledgeable they are about their disabled children, parents should rely on the opinions of trained professionals to help them make informed decisions about therapeutic and educational interventions. School districts will also rely on these professionals to help them design and deliver specialized education. All parties must recognize the important roles played by these professionals.
Legally an expert is any person who "by knowledge, skill, experience, training or education" possesses "scientific, technical, or other specialized knowledge [that] will assist the trier of fact to understand the evidence or to determine a fact in issue . . ." Fed.R.Evid. 702. The Individuals with Disabilities Education Act (hereinafter "IDEA"), 20 U.S.C §§1414 (d)(1)(B)(vi) allows parents to consult with experts and include experts on their child's Individualized Education Program (hereinafter "IEP") team: The term 'individualized education program team' or 'IEP team; means a group of individuals composed of -- . . . at the discretion of the parent or the agency, other individuals who have knowledge or special expertise regarding the child, including related services personnel. . .
Experts can offer opinions based upon their personal observations and/or testing of the child, as well as opinions they may have based solely upon their review of the child's records. The most common experts at IEP meetings are nurses, physicians, psychologists, social workers, and therapists.
Experts may work for the parents or the school district. While the IEP team must consider the opinions of any expert procured by the parents (20 U.S.C §§1414 (d)(3)(A)(i)), the team is not bound by these opinions.
If a district decides on a course of action that is at odds with the recommendations of the expert retained by the parents, the parents are entitled to "prior written notice," a written explanation from the district that specifically states:
- a description of the action proposed or refused by the agency;
- an explanation of why the agency proposes or refuses to take the action;
- a description of any other options that the agency considered and the reasons why those options were rejected;
- a description of each evaluation procedure, test, record, or report the agency used as a basis for the proposed or refused action;
- a description of any other factors that are relevant to the agency's proposal or refusal;
- a statement that the parents of a child with a disability have protection under the procedural safeguards of this part and, if this notice is not an initial referral for evaluation, the means by which a copy of a description of the procedural safeguards can be obtained; and
- sources for parents to contact to obtain assistance in understanding the provisions of this part. 20 U.S.C. §§1415 (b)(3) and (c).
Parents may request a Due Process Hearing and ask an impartial Hearing Officer to determine whether the district was correct in disregarding their expert's advice. An articulate, well-reasoned expert opinion that is supported by objective data is extraordinarily beneficial to an advocate who is attempting to obtain a particular action or prevent an action by a school district on behalf of an eligible child.
Reason I: To obtain a clear medical diagnosis of the child
The main reason parents turn to experts is for an accurate diagnosis of their child's disability. Parents cannot get appropriate help for their disabled child unless they fully understand the nature and extent of the child's disability.
Some individuals refer to this diagnosis as a "label." This phrase is inaccurate. A medical diagnosis must be reached according to best medical practice, including accepted clinical tests and observations by a licensed medical professional. IDEA allows for a multitude of medical diagnoses to obtain eligibility. A solid medical diagnosis of the child by a qualified professional is a necessary starting place for parents.
As a rule, school districts are not qualified to make medical diagnoses of disabled children. School districts may perform educational testing to evaluate the child's skills, learning style and other characteristics that make the child eligible for special education services. However, even if an IEP team uses educational testing and observation to determine that a particular child is autistic, this is not the same as a medical diagnosis of autism.
Parents will naturally have concerns about their child's disability that go beyond the school environment and will turn to experts for guidance about these issues. This leads to another reason why parents turn to experts - for advice about available treatments.
Reason II: To obtain advice for medical or therapeutic treatment of the disability
Once the parents understand that their child has a particular disability, they naturally want to do whatever they can to help the child learn and adapt to this condition. From a medical perspective, it is accepted best practice for experts to advise parents about the best medical and/or therapeutic remedies to help the disabled child. Acceptable ways to treat a child's disability may include medications, surgeries, and therapies.
The express goal of this advice is to maximize the child's health, development and general welfare.
The parents and experts will select therapies or interventions that are designed to bring the child as close as possible to the development and skills the child would have if not disabled. These may include consideration of or work towards:
- an actual cure of the child's condition - that is, any and all available treatments which will actually reverse the condition or treatment so the child no longer meets the medical diagnostic requirements for that condition or disability; or,
- a drastic improvement in the child's condition - that is, any and all treatments which will so improve the condition or disability that the effects on the child's life are practically neutralized, even though the child may still technically meet the medical diagnostic requirements for the condition or disability.
In addition, parents will request advice from experts about support and education for themselves and other family members affected by the child's disability. In other words, parents need information and support from experts to help them cope with the practical realities of their child's disability. One of these practical realities are the experiences the disabled child and the parents have with the school district.
Reason III: To help develop an appropriate educational plan for the child
When considering how a child with a disability relates in the school environment, parents need to understand the impact of the disability on learning or negotiating the school premises. As members of the IEP team, parents want to participate meaningfully in planning their child's education. They will rely on their experts and the school's experts to do so.
No parent wants to underestimate their child's abilities and no parent wants to see their child struggle needlessly. Finding that sweet spot of challenged independence is crucial for parents - and usually their own experiences with their child's disability are insufficient for them to fully understand what is appropriate in school.
Please note the differences between what is appropriate and what is best.
In all areas of the child's life outside of school, parents will legitimately pursue the best remedies for their child. This is the "therapeutic benefit" standard, and is a natural and expected part of good parenting.
However, in the school environment, the school district must only consider what is appropriate for the child. This is the lesser "educational benefit" standard required by IDEA. Generally, appropriate educational interventions and services will provide the student with meaningful educational benefit, but will not maximize the student's potential.
Congress and the courts are steadfast in their refusal to require schools to do what is therapeutically or educationally best for disabled children. Best is the clear domain of families, not the legislatively mandated standard for schools.
There is a legal difference between services and interventions that provide a disabled student with educational benefit, and those that provide therapeutic benefit.
Schools must only provide services and interventions designed to improve the student's ability to learn at school. Schools are not legally required to provide any intervention or service solely to improve the child's medical or therapeutic welfare.
This is a subtle distinction: a legal hair that parents and school districts frequently must split. Common sense dictates that educational benefits will have therapeutic windfalls, and that therapeutic benefits will improve a child's performance at school.
The time that all children - disabled and not disabled - spend in school is crucial for them to reconcile who they are within their communities. This is especially true for disabled children who must reconcile the impact of their disabilities with the expectations of modern communal life.
Nevertheless, the law is clear that schools must accommodate only those disabilities that affect the child's ability to function in and learn at school. Any impact that reaches beyond the school experience is outside the scope of the school's responsibilities.
Experts are key in determining the nature and extent of the disability's impact on learning or functioning in school. However, experts must provide this input only to the extent that it allows the child to participate in school as a disabled child.
Unlike the standard in a medical or therapeutic setting, there is no requirement that experts provide advice about how to cure or drastically reduce the effects of the child's disability in school. A child with autism must only have those accommodations that will allow him to function meaningfully in school as a child with autism. No matter how tempting it is to utilize therapeutic resources at school for the purpose of improving the autism so it no longer medically exists, or is so reduced as to appear non-existent, this is a clear overreaching of the IEP process.
Yet, there is no express prohibition of a child obtaining a therapeutic windfall from an educational benefit. If a particular autistic child requires a particular educational program (for example, Applied Behavior Analysis or ABA) in order to receive an appropriate education, and that educational program has the added benefit of removing that child from the autistic spectrum, Congress and the courts will certainly have no objection.
One common problem that arises when parents consult with experts to plan an educational program is that the parents or the expert or both forget to apply the "educational benefit" standard.
Assume parents take their child to a child psychologist for an evaluation. The psychologist diagnoses the child with Attention Deficit Hyperactivity Disorder (ADHD) and tells the parents that the child "needs an aide" in school. When the parents advise the school that the child needs an aide, the school refuses to provide one.
The decision will depend on many factors but one is most important: is the child able to learn without an aide? If the expert, when recommending the aide, believes that the child likely would be able to learn without an aide, but likely will learn more with an aide (the "therapeutic benefit" standard), it is unlikely that the Hearing Officer will award the aide.
If the expert testifies that the child will not receive meaningful educational benefit without an aide (the "educational benefit" standard) and has objective data to support this opinion (the "educational benefit" standard), the Hearing Officer is far more likely to award the aide.
Therefore, parents and the experts they hire must remember that for educational purposes, the expert's opinion should address:
- how the disability affects the child at school; and,
- how services and interventions can be delivered in the school environment to enable the child to receive an appropriate education.
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How Should Parents Choose their Experts?
I. Be clear about why you retained the expert
The most important factor for parents to keep in mind is why they are consulting with an expert. This is more easily accomplished if the expert is a school district employee. All reports, tests and opinions completed by school district experts will be for educational purposes.
Parents should never look to school district experts for opinions about the ultimate medical or therapeutic conditions of their disabled children. Not only are districts not required by law to give medical or therapeutic advice: depending on state requirements for practicing medicine, school district employees may be legally prohibited from giving medical or therapeutic opinions.
Therefore, if an IEP team - based upon school testing - determines that a child can receive the educational label of autism as a qualifying condition under IDEA, this does not mean that the district employees have medically diagnosed the child with autism. In fact, it is more likely that without a medical diagnosis of autism, a school team would be uncomfortable finding a child eligible under the label of autism. To avoid the quagmire of practicing medicine without a license, the team may find the child eligible under "speech/language" or "other health impairment."
If parents do not have a solid medical understanding of their child's disability, they are best served by finding an appropriately licensed person to give current medical tests and evaluations for this purpose. The parents should ask their pediatrician or family doctor for references for such an opinion. These clinical evaluations - whether physical or psychological - will comply with the "therapeutic standard" explained above: that is, the practitioner and parent will determine what cause of action is in the best interest of the child.
If the parents already have a medical or therapeutic diagnosis and need further testing and opinions about how the disability will affect the child's performance in school, they should secure an educational evaluation of the child. IDEA requires school districts to conduct these evaluations, and in some circumstances, even pay for outside evaluators to administer tests. The results of this evaluation will be used to develop an appropriate educational program for the child.
If parents have concerns about the methodology or validity of tests conducted by school district personnel or clinical professionals paid by the district, they are free under IDEA to obtain independent evaluations at their own expense. Reports by independent evaluators will become a part of their child's file and must be considered by the IEP team.
When choosing an expert outside the district, the parents should strive to find a professional who is truly objective. In other words, it is crucial that the expert not have a personal interest in the outcome of the evaluation. This is especially true if the parents anticipate that the IEP team will view the evaluation results unfavorably. Therefore, while it is expected that the expert will fundamentally support the priorities identified by the parents, it is not fatal if the expert disagrees with the parents on minor points. In fact, this demonstrates that the expert is truthful, and is not just acting as a "hired gun".
The expert's opinions and recommendations should be written into a report that is easily understood by a layman (in addition to conversations that the expert may have with IEP team members), and should be supported by objective data about the child. The report must be unambiguous about:
- the expert's diagnosis of the child's disabilities;
- the child's need for special education services;
- specific services recommended by the expert recommends, and,
If the expert believes that the child will not be able to learn without specific interventions, the expert must state this in plain language. If the parents are not sure about the strength of their expert's opinion, or whether this opinion relates to a "therapeutic standard" or an "educational standard" they should ask the expert to clarify the opinion.
In cases where the parents or advocate expects the school district to contest the expert's opinion, all parties must keep in mind that the expert is a potential witness and may be expected to testify to their opinion under oath.
II. Keep the expert's qualifications in mind
Although all properly licensed experts are deemed competent to offer advice in their area of expertise, some experts are "more qualified" than others. In other words, certain licensing standards are more persuasive for educational or IEP purposes.
If the expert's opinions and report will be used for educational purposes (that is, to determine an appropriate educational program for the child), an expert who has a background in education, in addition to professional licensing, will usually make a good witness.
For example, licensed clinical psychologists can administer and score psychological tests on disabled children. Licensed clinical psychologists can provide competent advice about how the test results reflect the child's performance in school. If the clinical psychologist is also a licensed school psychologist, this individual may be especially persuasive when explaining to district personnel how the test results should translate into an appropriate educational program for the child. It will also be more difficult for the district to characterize this expert's opinions as "therapeutic" advice, not "educational" advice.
The new 20 U.S.C. 1414(d)(1)(A)(viii) requires that an IEP must include "a statement of
(I) how the child's progress toward the annual goals described in clause
(ii) will be measured; and
(II) how the child's parents will be regularly informed (by such means as
periodic report cards), at least as often as parents are informed of their nondisabled children's progress, of
(aa) their child's progress toward the annual goals described in clause
(bb) the extent to which that progress is sufficient to enable the child to
achieve the goals by the end of the year."
The information that must be contained in the notice, referred to above as "in clause (ii)" is: "a statement of measurable annual goals, including benchmarks or short-term objectives, related to
(I) meeting the child's needs that result from the child's disability to enable the child to be involved in and progress in the general curriculum;
(II) meeting each of the child's other educational needs that result from
the child's disability
THE PURPOSE IS TO TELL US IMMEDIATELY WHAT IS NOT WORKING AND A NEW IEP MEETING CAN BE HELD IMMEDIATELY TO CORRECT THIS PROBLEM.
If you were not given report cards on the goals and objectives of your child's IEP, file a state complaint on this issue!
Here are some thoughts about the questions that you need to ask yourself as you prepare to write IEP goals and objectives.
Measurable annual goals:
- What do you want the student to know or be able to do in 12 months as a result of this IEP?
- Is this information measurable / observable? What will you observe?
(The annual goal - "Increase study skills for academic success" is not measurable. However, the statement "The student will demonstrate the following study skills: skimming written material and the use of reference materials in the social studies class" is measurable and observable.)
- Does the goal have meaning for the parents? For other IEP members who will be working with this student? If you used jargon, do you provide additional information somewhere else? For example, some of you state that the goal will be achieved by reaching a Standard Score of 85, or increase expressive communication by greater or equal to .5 Standard deviation. If you use this terminology, either your goal or your objectives need to describe what the student will accomplish when he/she reaches that standard score or standard deviation.
Present Level of Educational Performance:
- What do you want the student to know or be able to do in 12 months, and why can't he /she do it now? In other words, how does the disability affect the student's progress?
Civil Rights Fight
Fight for Special Education Rights Follows Same Track as Other Fights for Civil Rights
An essay by Dorene Philpot, attorney
It’s easy for the relatively small group of us who are fighting for the rights of children with disabilities to become discouraged and think about taking a different path where the struggle isn’t so hard, day in and day out.
After all, we singlehandedly face the largest law firms in the nation with access to a bottomless pit of taxpayer funds and insurance company dollars.
As if that weren’t enough, add to that the opposition we get from the state education agencies, who federal law says are supposed to enforce and supervise the implementation of special education laws but which have an obvious vested interest in keeping costs down and covering up the problems.
If the state agencies were out there, making obvious the failings of the schools they were supposed to be supervision, state and federal tax dollars might be at stake.
Yes, it’s in both the schools’ and the states’ interests to make it appear that all is well in special education, thank you very much, and that’s part of the reasons that you see the lies, altered paperwork and cleanup activities that occur in IDEA and Section 504 cases.
However, those of us fighting The Good Fight against the unbelievable injustices that we still see going on today, must keep in mind that this fight for the rights of children with disabilities will take years, just as the fight for other civil rights has required through the centuries.
This fight will take time, and there will be resentments, wasted money, wasted time, wasted lives and unconscionable losses of potential, but we will prevail.
We must be patient and tenacious. We will win this fight.
Fighting the Good Fight Takes Time and Perseverance
From the 1640s until 1865, people of African descent were legally and inhumanely enslaved in the U.S., mostly by whites.
Yes, for about 200 years, many in our society thought it was OK, and in fact their birthright, to kidnap people from another continent and force them to build our homes, tend our crops and care for our families and livestock without pay and, in many instances, without humane housing, food or treatment.
Many slaves were freed during the Civil War (1861-65), many by president Abraham Lincoln’s Emancipation Proclamation (1862) and then many finally by the 13th Amendment to the U.S. Constitution (1865).
Our country didn’t move away from slavery voluntarily. It actually had to go to war with itself over this issue before it was resolved, with untold deaths, dismemberment and financial cost. This demonstrates how fiercely people can and will hold on to untenable positions.
More recently, it wasn’t until about 50 years ago that black children won the right to simply attend school with white children. In 1954, the U.S. Supreme Court stated in Brown v. Board of Education, 347 U.S. 483 (1954) that African-American children had the right to equal educational opportunities and that segregated schools “have no place in the field of public education.”
It’s stunning that we, as a society, couldn’t decide this on our own. We had to have a court order this before we would do it? Are we human beings really this ignorant or evil?
Of course, people could not be counted on to voluntarily do the right thing even when the nation’s highest court said we had to. Yes, the militia often had to be called in to enforce these laws because people clearly couldn’t trusted to do the right thing simply because it was the right thing or simply because the law now required it.
Special education civil rights fight
Would you believe that in 1958, which was only about 50 years ago, the Illinois Supreme Court held that compulsory education laws did not apply to children with mental impairments? And in North Carolina, up to 1969, parents could be criminally prosecuted for trying to enroll a disabled child in public school after the child had been excluded.
Not long after that, Congress launched an investigation into the status of children with disabilities and found that 2.5 million disabled children were not receiving an appropriate education and even worse, 1.75 million handicapped children were receiving no educational services.
Yes, in the 1970s, which is only about 40 years ago, it finally became apparent to our legislators that children with disabilities were being trodden on.
The worst trampling was being done by educators themselves, the very same people who professed to love children and who professed to know the value of education. This is clear because if educators had willingly welcomed children with disabilities into their classrooms, Congress wouldn’t have had to intervene.
So, since educators couldn’t be trusted to educate disabled children and the courts couldn’t be trusted to order schools to educate disabled children, the legislators wrote laws to make sure that the schoolhouse doors were kept open for children whose only sin was that they were more difficult to educate than their peers. At that time, schools some how rationalized that it was better to bar the doors to children with disabilities than to take the extra time and effort that it would take to teach them to read, write, get along with peers and learn self-help skills that would enable them to live productive lives.
As a result of this, Public Law 94-142, called the Education for All Handicapped Children Act of 1975, was enacted. Fifteen years later, when the law was reauthorized in 1990, it was renamed the Individuals with Disabilities Education Act (IDEA). Later it was reauthorized again in 2004 and renamed the Individuals with Disabilities Education Improvement Act.
At this point, just having laws saying that children with disabilities were entitled to an education was not enough. The Supreme Court had to weigh in also, which it did with Board of Education v. Rowley. In that case, which was decided in 1982, the same year I graduated from high school, the U. S. Supreme Court issued the first decision in a special education case. The decision includes an account of the evolution of special education law.
The battle continues: More recently, in Indiana, in Evans v. Tuttle, 613 N.E.2d 854, a case decided in 1993, the state Indiana Department of Education actually appealed a trial court decision that held that the State could not deny disabled children over the age of 18 a free and appropriate public education, even though no one disputed it was required by federal law to be provided.
So, in other words, the state was so vehemently opposed to providing special education services to individuals above age 18, even though the federal law clearly required it, the state was willing to file an appeal on this issue, in federal court, which they obviously and rightly lost. This is an example of your tax dollars at work.
Today, someone who enslaved another against his will or who barred a black child from the schoolhouse door simply because he was black would be loathed by our society and would be criminally prosecuted.
But someone who tries to bar a child with a disability or someone who tries to give a shoddy education to a child with a disability often can get away with it.
But this isn’t permanent, as long as we don’t give up the fight.
The point of all of this: It took years and years of struggle and bloodshed before the ability to enslave others was no longer seen as a birthright but as something that was morally, ethically and socially abhorrent.
Yes, just like in the historic civil rights fights such as anti-slavery, suffrage for women, etc., our lawmakers actually had to force people to do the right thing.
Don’t become discouraged in fighting the Good Fight for children with special needs.
Decades from now, I predict that folks will say things like:
“Are you serious? You had to SUE to keep the schools from expelling kids with emotional disabilities from school? Where were they supposed to go? What were they supposed to do? Who benefited from their being excluded from school?”
“You had to sue to keep a school from physically restraining a child on the floor for 5 and a half hours out of his six-hour school day? The school readily admitted at hearing that they did this – and they stated with a straight face that they thought that was acceptable and necessary?”
They’ll ask: “No way. You had to SUE to get your schools to attempt to teach a child with dyslexia to be able to read, using scientifically based methods of instruction that were already proven to work but which weren’t used by public schools until decades after the research on them became widely available?”
They’ll ask: “Really? You had to SUE to get public schools to offer ABA programs to young children with autism when decades of research showed that it was the only scientifically proven method to work for many children with autism to make them indistinguishable from their peers?”
They’ll ask: “You actually had to fight for those things?”
So, even though the fight to enforce these rights is discouraging, disheartening and definitely not the path of least resistance, this is the path to effecting change in our society and winning the war, just as the civil rights activists did to get slavery abolished, women the right to vote, and disabled children the right to attend school.
Don’t give up – your efforts are important. In fact, without a continued, concerted fight, change cannot and will not occur.
Take heart in the knowledge that the fights you fight now, even though you do not win, get us one day closer to the time when our society will say, “Really? You mean you had to fight for that? Seems like a no-brainer to me.”
How to Choose an Attorney for Your Child’s Special Education Case
Sometimes having a child with a disability means that you will need to hire someone to assist you to get the educational services your child needs and deserves in order to receive his or her Free Appropriate Public Education (FAPE).
Attorneys can help assess whether you have a good case, what the issues would be in your case and how to best go about getting what your child needs.
Attorneys can represent you in court and in due process hearings. They are held accountable to follow strict rules of legal procedure and ethics in the states where the attorney is licensed.
Although attorneys can never guarantee a particular outcome or result, an experienced attorney should be able to give you a range of possible outcomes and help you weigh the advantages and disadvantages of your case.
Some attorneys who represent families with children who have disabilities may be in private practice or they may practice in a public service agency. Examples of such agencies are each state’s Protection and Advocacy agency, Legal Aid, Legal Clinic, or other similar organizations.
How to find a potential attorney: ask other parents and advocates in your local area about attorneys they have used. The Council of Parent Attorneys and Advocates, Inc. (COPAA) also has an attorney locator available on its Web site at http://www.copaa.org/find/index.php.
Unfortunately, most states have a shortage of knowledgeable attorneys to represent families in special education cases, so finding an attorney who is suitable can be difficult because there may be only one to six in the entire state who focus on this area of practice. Likely you will have to look outside your town or county to find someone who regularly practices in this area of law.
Choosing which attorney will best suit your needs is difficult at times. Attorney styles, demeanor and personalities vary just as parents' styles do. It’s important to try to choose an attorney who is the most compatible with your personality and objectives.
Important things to consider in choosing an attorney:
The attorney's special education expertise and knowledge
The laws in special education cases can be complex. Although the training lawyers receive prepares them to deal effectively with legal complexities, law schools commonly do not teach specifically in regard to special education law.
Ask your attorney how many years he or she has been practicing in this area of law, how many cases he or she has handled in the past, how many due process hearings he or she has been to and whether he or she practices only in this area of law or primarily in other areas of law.
Do not be afraid to ask an attorney these questions. YOU are the client and the attorney works for you. Because you are the one making the hiring decision, you have a right to this information.
Special education lawyers often are parents of children with disabilities. They also might have gravitated toward this area of practice through a desire to make a difference, feel called to it by God or because they have a friend, neighbor or family member with a disability.
Don’t be shy about talking money
You have a right to know and fully understand what their rates are and how they will bill you for professional services. Most attorneys will not begin work without an agreement or contract. That contract should clearly spell out the attorney’s and client’s obligations.
Understanding your role as parents and clients
Parents play a vital role in every special education case. In fact, they are the decision makers. Lawyers cannot make decisions for you. They can give you legal advice and tell you what to expect. But you, as parent of the student, are responsible for making the decisions. You must decide whether to accept or reject an IEP, whether to settle your conflict with the school informally and what the terms of a settlement will be, and other such decisions. An attorney can give you advice and opinions based on that attorney's training and experience, but ultimately you make the final decisions about your child's case and programming.
If you have a REALLY good sense of humor, these quotes taken from real discussions, hearings and written evidence will amuse you.
Taken from an email written from a teacher in Clay Community Schools on May 15, 2003, to the school psychologist about a child with clearly diagnosed SEVERE ADHD by several qualified medical professionals:
“STUDENT (name changed to protect the innocent) is a strange case. We all feel that his biggest problem is that his mom and dad are looking for any excuse to explain STUDENT’S bad behavior. I do believe that he is somewhat ADHD; however, we have had much more severe cases – (name omitted), for example. STUDENT doesn’t get along with any other student – he picks and complains and antagonizes one and all. I can also say that no one likes him. Not because it is the popular thing to do, but they really don’t like him. His academic levels are low because he has had the crutch of “it’s his disability” used so often that he no longer really tries. He and his parents expect everyone else to do his work and not hold him accountable because it is “his disability”. He won’t start working in class on assignments unless he is specifically told to do so, and he wants to try the excuse “I’m thinking’ when the exercise clearly doesn’t even take any thinking. I don’t know how to counteract a life of parents telling him that there is something majorily (sic) wrong with him. They have tried every test, counseling, medicine that is out there. I can’t imagine how he is to deal with constantly being told that there is something terribly wrong. We have found that if we tell him “that’s it, you act like that or do that again, and you’re outta here,” then he can control his behavior. However, theline (sic) must be drawn in the sand for him to see that he has reached the limit of what we’ll tolerate. The parents and the behavioral plan said we were to do three warnings, but we found that one worked as well as three. We’ll all be interested to get the results of his testing.”
An advocate was having a discussion with an administrator at a case conference. After much discussion about the student’s need for more one on one academic instruction (independent evaluator was at meeting and making very clear case for same), the school decided not to offer more one on one instruction, anyway.
Advocate: OK. So I need to be clear that I understand the school’s position with regard to increased one on one instruction. The school’s position is that additional one on one instruction is not warranted, is that right?
Team chair: That is correct.
Advocate: OK. Will you be certain to send the required written notice to the parent?
Team chair: (blank stare, pregnant pause): What are you talking about?
Advocate: Well, whenever a parent asks a school to change their child’s program in some way, and the school refused to do so, IDEA requires that the parent be provided with written notice.
Team Chair: Well, we’re not refusing to do anything.
Advocate: The parent requested additional one on one instruction. The school’s position is that this is not needed and will not be provided. Therefore, you are refusing to change the child’s program as requested by the parent.
Team chair (now getting very annoyed and huffy): Ms. Advocate, I’ve already told you once: We are not refusing anything. We simply feel that the additional instruction is not needed.
Advocate (now tired of arguing with team chair): Uh, OK.
Written team meeting agenda for a child’s three-year reevaluation meeting:
Total time allotted to meeting 30 minutes
Introductions: 3 minutes
Setting ground rules for how meeting will be conducted: 3 minutes
Eval 1: 3 minutes
Eval 2: 3 minutes
Eval 3: 3 minutes
Eval 4: 3 minutes
Eval 5: 3 minutes
Parent questions: 3 minutes
Develop IEP: 3 minutes
Summarize meeting: 3 minutes
Note from special education director to staff members, found in student file. Important: Time of year is summer:
“When Mrs. Advocate comes in to review student’s records, one of you will have to sit with her to be sure she doesn’t take anything. Also, I would prefer that she use a room that is not air conditioned.”
An advocate asked the school to provide written notice to a parent requesting a service that was refused:
Advocate: OK. Will you be certain to send the required written notice to the parent?
Team Chair: We don’t do that here.
Advocate: Well, you have to. It’s required by law.
Team chair (very angry by now): Mrs. Advocate, the law is all well and good, but you need to understand the day to day realities of how schools operate.
This scenario occurred in a case in Northern Indiana:
The child had severe behavior problems and was eligible for special education and related services under the area of Emotional Disability.
Several of the documents in evidence and several of the witnesses had testified that when the child became stressed out at school, he would either flap his arms in the air or roll on the floor.
During a break, while the attorney for the parent was out of the room. the next witness, a school employee, came in to testify, and he was obviously nervous.
The parent reported to her attorney after the attorney returned to the room that the school's attorney, who works for one of the largest, most respected firms in Indiana, had said to the nervous witness: "Well, perhaps if you flap your arms in the air and roll on the floor, you'll feel better."
Needless to say, the parent of the child was very upset that the school's attorney felt it was OK to make fun of her child with disabilities.
Transcript at 96 From Kathryn M. v. Hyde Park Central SD (NY)
Chair of IEP team: “. . . I had discussed how K. was coming to school fairly consistently with the exception of being out every other day . . .“
The following is an email from a special education director in a large metropolitan school district in the Indianapolis area, dated 04-20-04, who apparently thinks the laws are all well and good but that they don’t apply to this particular district:
“Mrs. Mother (name changed to protect the innocent), your request for all of you (sic) child’s school records were (sic) passed to me. Many of the things that you requested such as deficiency notes, and correspondence from parents to mane a few are not kept and put in a child’s cumulative record file. I would imagine that you can get such things as the attendance records, schedules and the grades from our website. If you would contact (NAME OF SCHOOL OMMITTED) they can give you more in-depth directions as to how to access these. Regarding the evaluation report, IEP etc., those would have been given to you at the case conference. You are welcome to make an appointment to come in and review your child’s file in our office if you would like but unless if (sic) we are in a due process situation, we do not make copies of the records.”
The following is contained in an email dated January 12, 2005, from a principal to a parent’s advocate.
First, the advocate wrote: “The (NAME OMITTED FAMILY) want (STUDENT’S NAME OMITTED) back in the home school. What do we need to do to get him there?”
The principal responded, “When is this supposed to happen? I need to give my two weeks notice. Ha ha.”
The following is contained in an email written between two school employees and dated March 23, 2004. It was found in the student’s file by an advocate working with the parents who went to view the student’s file:
- Find out how old is the doctor’s written script which states that pull-ups are detrimental and that using a toileting schedule is not appropriate. If it is over six months old, the parents should be requested to get an updated script.
- Invite the doctor to come to the case conference. Taylor would probably have to pay him since Taylor would be doing the inviting.
- Convene the conference and develop goals for teaching toileting skills. In this way, you can then show a hearing officer (if it comes to that) that the school has addressed this in his IEP.
- If the parents continue to refuse to have him wear pull-ups and/or follow a schedule, then the school should make it very clear to the parent that this is a health and safety issue for, not only Brandon, but for the other children as well. If the parents continue to refuse, let them know that this may be a child abuse or child neglect and that you will be reporting this to Welfare.
- Make sure that you are establishing a written record.
The following is a long-time parent advocate’s account of what she witnessed at a recent case conference in Hancock County:
Yesterday I attended an IEP with a family at XXX Middle School. We did tape the meeting, but I wish we had videotaped it too! (THE DIRECTOR) attended the meeting...His only comment the entire time was, "I am sorry I am late." However, the highlight was that the Assistant Principal asked when he walked in what kind of a meeting is this? He kept falling asleep during the meeting. After the meeting the parents and I walked out of the school building, and the Dad's first comment was "Who was that guy?" The three of us broke out in laughter. (Tho' it should have been tears!).
In Beaumont, Texas, in a hearing in 2008, the doctorate-level special education director’s testimony who first said she didn’t understand her own statement made just minutes before, when asked to elaborate on her own statement, then kept changing her mind about where a document would be found to support her statement. Finally, after the director contradicted herself and changed her testimony multiple times about whether a document existed supporting her statements in the hearing, the director’s counsel stipulated that no such document existed:
BY MS. PHILPOT:
Q. Was a plan devised for the in-home program?
Q. What was the plan?
A. The current placement had a plan. They lived in residential.
Q. And there was no other than that, no other plan other than what already existed when they were in the residential placement; right?
A. Right. That was meeting their needs.
Q. The residential placement was meeting their needs?
A. At that time.
Q. At what time?
A. At that point in the ARD Committee.
Q. What point of what ARD Committee?
A. Okay. I don't understand the question.
Q. You said Bayes was meeting their needs at that point. What point? Give me a date.
A. July '07.
Q. July '07 Bayes was meeting their needs. When you say "they," you mean THE STUDENT, right?
A. Okay. I don't have -- I'm not understanding. I really am not.
Q. Well, I'm just asking you to interpret your own statement. I'm not asking you to do anything complicated. What does that statement mean?
A. Okay. I don't understand. I really don't. I don't know what I'm --
MS. PHILPOT: I think the witness is being evasive. She said it. I'm just asking her to elaborate.
HEARING OFFICER McELVANEY: Well, --
MS. CHAPPELL: I think we're being argumentative here.
HEARING OFFICER McELVANEY: Well, I know but we're not getting any information. I don't know the questions are -- let's kind of step back. Was there an in-home plan at Mom's house ever developed at or before the ARD in '07?
THE WITNESS: Like the in-home training?
HEARING OFFICER McELVANEY: Right.
THE WITNESS: Yes.
HEARING OFFICER McELVANEY: Okay. When was that developed?
THE WITNESS: Through the ARDs, the different ARDs. Like so many hours of in-home training; is that what you're asking me?
HEARING OFFICER McELVANEY: Yeah. I think that's what I'm hearing here, is a question about what specific in-home plan was in place. "When we bring THE STUDENT home, this is what we're going to do, and this is how we're going to do it."
THE WITNESS: And some IEP goals to work on?
HEARING OFFICER McELVANEY: Right.
THE WITNESS: Yes, ma'am. That was in place.
HEARING OFFICER McELVANEY: At Mom's house, for use at Mom's house?
THE WITNESS: Yes.
BY MS. PHILPOT:
Q. So where would we find that?
A. In one of Ms. Carter's reports.
Q. That was in September of '07; right, that she did her in-home training?
A. And she did parent training. That's in the ARD deliberations.
Q. You said it was in one of Ms. Carter's reports. Which one are you referring to?
A. Okay. Also it's in -- it's in the deliberations.
Q. The answer is a date. You said it was in one of her reports. Specify which particular report by giving us a date.
A. Okay. I would like to change my answer to deliberations. It's in the deliberations from the previous ARD.
Q. So it's your testimony that the ARD deliberations contain the in-home plan?
A. Some, uh-huh.
Q. And we wouldn't find it any other place. It would be in the deliberations; yes or no?
Q. We would ask you to look and see if you see that in those documents, since you're probably very intimate with them.
HEARING OFFICER McELVANEY: The 07/02/07 ARD?
THE WITNESS: And '06.
MS. PHILPOT: There's two '06 and one '07.
BY MS. PHILPOT:
Q. And that would be the only place we'd find it; right? If it existed, it would be right there in one of those documents?
A. I'm not sure.
Q. You're the director of the program suggesting that there be this radical change of placement and you don't even know where it is.
MS. CHAPPELL: I object. Asked and answered. She said --
HEARING OFFICER McELVANEY: I'm going to overrule because I heard that there was a plan for Mom and the child in the home but now we're hearing -- that doesn't exist, does it, a four-corner document that is the in-home goals and objectives when THE STUDENT comes to his mom's house? That document does not exist.
THE WITNESS: Yes, it does.
HEARING OFFICER McELVANEY: Where is it?
THE WITNESS: It's Ms. Carter's report. She has some goals on there, and I don't know if it's in the exhibits.
HEARING OFFICER McELVANEY: And that was done in September of '07?
THE WITNESS: No, past ARDs.
HEARING OFFICER McELVANEY: Then we need to see it if it exists. Could you find it?
MS. PHILPOT: It's okay if you want to help her find it.
MS. CHAPPELL: Oh, I don't know that that's in here. Are you talking about something that you would get from Ms. Carter? I guess I can ask her questions about it on cross but I don't know that there's anything in here.
Live testimony from a special education employee of Beaumont ISD (not the same special education director this time) during a special education hearing in Beaumont, Texas, in 2008, in regard to the trail-blazing proposal by the school that its custodian serve as the “backup personnel plan” for a student who had severe autism, severe behaviors, had to be physically restrained frequently and who had been in a 24-hour residential facility for the prior five years:
Q. That's fine. Now, you mentioned that there was a former aide who was a custodian. Do you recall that person?
A. Yes, I do.
Q. Okay. What was that person's name?
Q. And how long has she been at the Oaks?
A. Prior to her leaving in May 2007, at least two years, three years.
Q. You said she left in May 2007?
A. Yeah, she had back surgery.
Q. Okay. So when the ARD occurred in July of 2007, she was no longer even employed by --
A. She was still employed but she was not actively on duty.
Q. Okay. So if she just had back surgery, she would not be a good backup plan for --
MS. CHAPPELL: We object. Calling for conclusion.
HEARING OFFICER McELVANEY: Overruled. You can finish your question and then you can answer.
BY MS. PHILPOT:
Q. She was still technically employed but you said she had left in May of 2007 due to back surgery.
Q. Now, does your facility let people who are recovering from back surgery serve as backup emergency plans for students who have severe maladaptive behaviors?
A. This is an unusual case.
Q. That's a yes or no question.
A. Okay. No, then. The answer would be no.
Q. So in fact, it would have been impossible for this person who you described to have served as the backup for XXXXX based on her departure in May and the ARD happening in July?
A. I'm sorry, but I have to clarify this for myself because I don't understand why this questioning would involve and why this was even brought up.
HEARING OFFICER McELVANEY: Well, no, you don't get to ask that. You don't get to ask that. The attorney for the district opened the door on this, so we just need to find out. The bottom line is we've had testimony that a custodian would be the backup plan at the Oaks, and both sides are trying to explain to me what is meant by that statement. The district got you to say that there was a custodian who had training, et cetera. Now we've learned that that person, however, was not available at the Oaks for XXXXX. Is that --
THE WITNESS: And I think I stated that when we were discussing it, that she was no longer there.
HEARING OFFICER McELVANEY: You did. We didn't take the quantum leap to assume that it was during the time period that xxxxx was being discussed at the ARD. So this is why Ms. Philpot is asking you questions, to follow it up, which she can do that.
BY MS. PHILPOT:
Q. During the ARD, you participated in that ARD by phone; right?
A. Yes, I did.
Q. Did you mention that XXXXXX was no longer at the Oaks, that she had left two months prior to the ARD?
In Vidor Independent School District, during an ARD for a student with autism the assistant principal shared with the committee: "I don't believe in all that autistic stuff."
From a South Texas ISD was written: "I kicked him so he would not hurt himself" in a written report by a teacher on her behavioral intervention techniques.
"Mexican girls don't grow that tall" when asked about why there was an all-white volleyball team in a Texas district that is 88% Hispanic.
When asked why a playground was inaccessible to wheelchairs, a school official said: "It was built that way."
In a hearing held in Valparaiso, Indiana, in 2007, the student’s health teacher was asked if he knew what agoraphobia was. He said, "Phobia is fear. Ag. Hm. Is it fear of agricultural products?" Another teacher, who obviously was inservice trained just as thoroughly as the health teacher, answered: "Is it fear of water?"
In Bloomington, Indiana, a teacher opined in 2007 that he was qualified to do one-on-one ABA therapy with a student with autism because he had attended a part-day workshop the day before his testimony.
Written By Melanie Watson, a parent advocate in Northern Texas.
If IEP team members were asked “How many IEP meetings does it take to change a light bulb,” this is what I imagine they might say:
Parent - “The light bulb is not the only thing that’s burned out.”
General Education Teacher - “No one said I was going to have to teach changing light bulbs.” Case Manager - “If you hadn’t wanted so many hours of service in that room, maybe the light bulb wouldn’t have burned out.”
Transition Coordinator - “I think they cover that in life skills.”
Special Education Teacher - “We don’t need a light bulb, it’s not like they’re reading or writing.”
Special Education Director - “We’ll have to just keep changing his placement until we find a room that has a light bulb.”
Resource Teacher - “The side benefit is that we’ll have to bring them up from the basement.”
Teaching Assistant - “We don’t really need a new light bulb, there’s enough light coming off the television.”
School District Attorney - “The regulations don’t require light in the timeout room.”
Dean of Discipline- “Is there supposed to be a light in the time-out room?”
Assistive Technology Team - “First, we have to determine that the light bulb’s really burned out and then we can trial a flashlight.”
School Nurse - “I don’t know how many it will take to change the light bulb, but all the special ed children will have to go home until we do.”
Secretary at the meeting - “OK then, how many minutes of light are we allotting in the IEP?”
Special Education Director - “We are willing to provide nightlights and maybe open the door a crack; we feel this is more than educationally appropriate and all Rowley requires.”
Teacher - (Sobbing) “What do you people expect from us anyway!”
Parent - “I don’t understand why you’re being so difficult, it’s not like we’re asking for a chandelier.”
School Psychologist - “The children are just lazy. If they really wanted to learn, they’d study by candlelight like Abraham Lincoln – and look how successful he was.”
Janitorial Custodian - “I’d like to help you, but I’m not a part of the IEP team.”
Dean of Discipline - "I'm just here to make sure we write it as 'change the light bulb.' The minute anyone uses the word, 'screw' this meeting is over."
Special Education Attorney - “The light bulb is the least important thing that needs to be changed in that classroom.”
Melanie Watson , advocate- Can I please view the District's lightbulb purchase history?
"Democracy must be something more than two wolves and a sheep voting on what to have for dinner."
-- James Bovard, Civil Libertarian (1994)
“Injustice anywhere is a threat to justice everywhere.”
-- Martin Luther King Jr.
"Here in America we are descended in blood and in spirit from revolutionists and rebels - men and women who dare to dissent from accepted doctrine. As their heirs, may we never confuse honest dissent with disloyal subversion. "
-- Dwight D. Eisenhower
“The people with very hard problems are understood by God. He knows what wretched machines they are trying to drive. Some day he will fling them away and give those people new ones; then they may astonish everyone, for they learned their driving in a hard school. Some of the last will be first and some of the first will be last.”
-- C.S. Lewis, “Mere Christianity”
"First they ignore you, then they laugh at you, then they fight you, then you win."
“When the government fears the people, there is liberty. When the people fear the government, there is tyranny.”
– Thomas Jefferson
”Our challenge is not to educate the children we used to have or want to have, but to educate the children who come to the schoolhouse door."
-- H. G. Wells
“Dogs don’t bark at parked cars.”
-- Lynne Cheney, wife of Dick Cheney.
"The definition of insanity is doing the same thing over and over and expecting different results."
-- Albert Einstein
"No man in the wrong can stand up against a fellow that’s in the right and keeps on a-comin’ ”
--was the motto of Texas Ranger Bill McDonald (1852-1918). It later became a motto for the Texas Rangers themselves.
"The purpose of education is not to endow students with diplomas, but to equip them with the substantive knowledge and skills they need to succeed in life. A high school diploma is not an education, any more than a birth certificate is a baby."
-- Presiding Justice Ignazio J. Ruvolo, O’Connell, et al. v. Superior Court of Alameda County, 47 Cal. Rptr.3d 147, 167 (Cal. App. 2006). (Appellate court required trial court to vacate its preliminary injunction against the California State Board of Education, preventing the State Board from denying diplomas to members of the 2006 graduating class who had not passed both portions of the California High School Exit Exam but were otherwise eligible to graduate.)
"There is no more powerful advocate than a parent armed with information and options."
-- Rod Paige, Secretary of Education
"Morality cannot be legislated, but behavior can be regulated. Judicial decrees may not change the heart, but they can restrain the heartless."
-- Dr. Martin Luther King Jr.
"I believe that unarmed truth and unconditional love will have the final word in reality. That is why right, temporarily defeated, is stronger than evil triumphant."
-- Dr. Martin Luther King Jr.
"When you are wrestling with a gorilla, you don’t stop when you are tired; you stop when the gorilla is tired."
-- Robert Strauss
"The only thing necessary for evil to triumph is for (good) people to do nothing."
-- Edmund Burke
"Nothing in the world can take the place of persistence. Talent will not; nothing is more common than unsuccessful men with talent. Genius will not; unrewarded genius is almost a proverb. Education will not; the world of full of educated derelicts. Persistence and determination alone are omnipotent."
-- Calvin Coolidge
"I've learned that people will forget what you said, people will forget what you did, but people will never forget how you made them feel."
-- Maya Angelou
"Speak up for those who cannot speak for themselves, for the rights of all who are destitute."
-- Proverbs 31:8
"The highest result of education is tolerance."
-- Helen Keller
“A child miseducated is a child lost.”
-- John F. Kennedy
“Never wrestle with a pig; you both get dirty, and the pig likes it.”
“Think wrongly, if you please, but in all cases think for yourself.”
-- Doris Lessing
“Let us think of education as the means of developing our greatest abilities, because in each of us, there is a private hope and dream which, fulfilled, can be translated into benefit for everyone and greater strength for our nation.”
--John F. Kennedy
The only people who don’t make mistakes are the ones who aren’t doing anything.
“The great enemy of the truth is very often not the lie – deliberate, contrived and dishonest – but the myth – persistent, persuasive and unrealistic.”
-- John F. Kennedy
“Power tends to corrupt and absolute power corrupts absolutely.”
-- Lord Acton to Bishop Creighton, 1887
“Cautious, careful people always casting about to preserve their reputation or social standards never can bring about reform. Those who are really in earnest are willing to be anything or nothing in the world’s estimation, and publicly and privately, in season and out, avow their sympathies with despised ideas and their advocates, and bear the consequences.”
-- Susan B. Anthony, American civil rights leader, 1820-1906
“Children cannot lobby and cannot vote. We must speak for them.”
-- Marian Wright Edelman, children’s advocate
"Regardless of how good of a swim instructor you are, you can't teach a person to swim in the parking lot of a swimming pool."
-- Norman Kunc
“Fact is often stranger than fiction because most writers of fiction try to make their stories plausible.”
-- Judge Richard A. Posner, Kijonka v. Seitzinger, et al., 363 F.3d 645, 646 (7th Cir. 2004).
“He who fights monsters should look into it that he himself does not become a monster. When you gaze long into the Abyss, the Abyss also gazes into you.”
-- Friedrich Nietzche
“There can be no equal justice where the kind of trial a man gets depends on the amount of money he has.”
-- U.S. Supreme Court
By Robert Crabtree
Kotin, Crabtree & Strong, LLP
One Bowdoin Sq.
Boston, MA 02114
Because the stakes are so high, it is difficult for parents of children with special educational needs to advocate calmly and objectively for the educational and related services their children need.
Here are some common mistakes that undermine parents' ability to obtain appropriate services:
- Viewing the special education process as the moral equivalent of war, fighting that war with a "scorched earth" approach, and letting personal animosity toward administrators and/or teachers distort one's judgment about what is best for the child and what is realistic to accept;
- The opposite mistake: trusting administrators and teachers too uncritically; assuming that if they are "nice" they are also competent and interested in serving the child's best interest; not questioning slow, or nonexistent progress as long as the child, parent and teacher have a cordial relationship;
- Taking an "all or nothing" approach: waiting too long before getting good independent advice, then insisting on instant delivery of needed services rather than steady progress toward the right program;
- Failing to understand that the special education process sometimes requires that the parent educate the child's special education team about the child's disabilities and needs (the school system may not be willfully refusing to meet the child's needs; they may simply not understand those needs);
- Not trying a program or added services, even on a temporary basis, when they are offered by the school system -- holding out for an alternative program only to have a hearing officer decide the untried program might have worked;
- Attempting to "micro-manage" the details of a child's life in school; even if parents don't feel things are going well, their efforts to control the child's day usually backfire when the hearing officer concludes that the parents were over-protective and didn't let the school professionals do their job;
- Focusing on minor, nonprejudicial procedural missteps by the school (e.g., the parent who already knows her rights who says, "Aha! Gotcha! School district forgot to give me the rights brochure!") instead of focusing on the substantial issues in the case;
- Not consenting to school evaluations;
- Choosing the wrong independent evaluators: e.g., "hired guns" who only say what the parents want them to say, and have a reputation for doing so; those who will not follow through by observing programs, attending team meetings, etc.; those who do not have training or experience to evaluate a child like yours;
- Not providing copies of independent evaluations to the school, or not providing them in a timely way;
- Not responding in a timely way to proposed IEPs;
- Not documenting issues with the school; not sending letters to confirm agreements with the school or to record important conversations with school personnel.
- Seeing the school system as a monolith ("All those teachers are incompetent [or wonderful!]"); failing to look carefully at alternatives within the system for this year and at next year's teacher possibilities.
Mistakes School Systems Make
Just as parents can make mistakes, so can school systems.
Anything a school system does that undermines parents' trust creates a climate that is costly in dollars, time, peace of mind, and the quality and success of services given to the child.
Here are the most significant school system mistakes, according to persons at every level of the system:
- Refusing to let parents or parents' experts see programs, either within or outside of the school system. When school systems tightly restrict the parents' access to their own programs, the parents wonder what they are hiding and assume the worst; when they refuse to clear the way for parents to see an outside program, the parents will assume that the grass is greener over there;
- Failing or refusing to communicate and actively coordinate with outside experts working with the child, such as the child's therapist or a tutor;
- Ignoring reports from independent evaluators; failing to speak to those evaluators to clarify ambiguous information or recommendations; failing to add the evaluator's recommendations to the IEP when reasonable;
- Failing to respond to parents in writing or at a meeting when a problem arises;
- Taking a patronizing and/or antagonistic and/or insulting attitude toward parents; personalizing issues between school and parents; attempting to blame parents for their children's educational failures rather than looking for solutions (school system professionals need to treat parents with respect even if those parents are insulting and belligerent themselves);
- Sweating the small stuff (e.g., spending twenty minutes at a team meeting arguing about whether the meeting can be tape-recorded);
- Failing to observe procedural timelines and notice requirements (e.g., scheduling timely meetings, getting evaluations to the parents before the team meeting, notifying the parents who will attend the meeting, providing clear written explanations of parent rights);
- Writing careless and sloppy IEPs. Parents, evaluators, and hearing officers all look first at the extent to which the written IEP reflects a thorough and logically coherent view of the child, the goals and objectives for that child's program, and a clear and understandable description of what will be provided, how, by whom, and when; and how the child's program will be evaluated;
- Failing to implement an IEP and, worse, trying to cover up that failure;
- Failing to modify an IEP that is not working and waiting, instead, for the program - and the child - to collapse;
- Failing to provide additional or different services as a way to avoid having to make more restrictive (and expensive) outside placements;
- Failing to call in expert consultants from outside the school system with good reputations among both school and parent communities who can help develop or monitor a program for a child with unusual needs;
- Losing contact with families who have placed their child unilaterally. Some school systems forget or ignore their continuing responsibility to evaluate, review, and propose IEPs for children when they are attending outside placements at their parents' expense;
- Botching the required procedures around suspension or expulsion of students with identified or suspected special education needs (e.g., failing to convene the team, failing to make a manifestation determination, failing to re-examine the IEP to see if services are appropriate and have actually been provided, failure to provide FAPE to suspended or expelled students with special education needs;
- Failing to ensure that non-special education administrators - particularly building principals - are fully informed about and are following the required special education policies and procedures.
Folks often get work-related emails and letters from me in the evenings, weekends, even holidays, and they ask, “Don’t you ever rest?” Sure, I do.
But I love what I do so much that it truly doesn’t FEEL like work. It’s a calling, not a job. I couldn’t possibly treat it as a 9-5 job because it’s not.
I love representing families who have children with disabilities and strongly suspect I’ll be doing this till the day I die, long after many of my peers have retired from jobs that they merely tolerated in exchange for a paycheck.
I am often asked how I got into this area of law. My short answer is "It’s a God thing. I’m not smart enough to have figured all this out for myself."
The longer version is that I was called by forces more powerful than myself to this area of practice via a series of events.
By way of background, I was a journalist for 13 years prior to my practice of law.
I had been practicing law for only about a month when I got a call from Don Murphy, an attorney for the Indiana Public Defender Council. He and the Indiana Protection & Advocacy Service’s Milo Gray and Gary Ricks were looking to recruit new attorneys into special education practice to represent parents, as there were too few attorneys doing that in Indiana.
They were offering a free Continuing Legal Education (CLE) course on special education law and wanted to know if I was interested.
Being an attorney in private practice, just getting started, my calendar wasn’t exactly jammed full of commitments. I would have been open to just about any day that they proposed, and I agreed to attend the workshop.
(Notably, since that time, no one has ever called me and tried to recruit me to a specific area of law nor called to offer me free CLE hours.)
About a week later (before I had actually attended the CLE course), I got a call from a parent of a child with autism who was going to go to a special education due process hearing and said she wanted me to represent her family.
I told her that not only was I a new attorney but that I knew absolutely nothing about special education law. Not realizing that there was a shortage of attorneys representing parents in this area of law, I advised her to find someone who already knew about special education law. She said, “No. You’re exactly what I want.” I thought she was off her rocker if she thought it would be wise to hire someone as clueless as me, but she later explained. Then it all made sense.
The background: She had called an attorney in New York whose practice is devoted solely to representing children with autism. She had tried to get him to take her case. At first, he said no. He was already too busy, and no way was he coming to Indiana for her case.
She can be tenacious, and she kept working on him, and he finally told her to go find a brand-new attorney (one he could direct without resistance) and that he would be the brains of the case, and the new attorney would be local counsel.
So, she called the bar association and got the names of six brand-new attorneys. Mine was one of the names.
When she talked to the other five, they all said without hesitation that they would take her case, not mentioning what she already knew, that they were new to the practice of law entirely and didn’t have any experience in special education law in particular.
She appreciated the fact that I was honest with her about not only being a new attorney but also not knowing anything about special education law.
So, on the first morning of hearing, the child’s “team” gathered in a circle and said a prayer for a good outcome. The mother also gave me a wrapped gift that she said I couldn’t open until after the hearing was done.
We went to the first day of hearing.
Although I had done all I could to be “ready” for this hearing, I was so ignorant of my lack of knowledge that I didn’t even realize at the time how ignorant I was.
The first day of hearing, I put on my opening argument and the parent as my first witness. Then we broke for lunch.
When we came back from lunch, the school’s attorney said he wanted to settle the case and agreed to give the mom the Applied Behavior Analysis (ABA) program that she had assembled for her child, would pay for the team already employed by the mom, reimburse her for past expenses of the program and pay the parent’s attorney fees.
It’s important to note that, even though I’ve now had several years of experience in this area of law, since that time I haven’t had even one case ABA case settle in the middle of a due process hearing with the school agreeing to give the child an ABA program, which costs about $60,000 a year.
I think God knew that I would need that sort of good outcome to want to do another case. If we had gone all the way through the hearing and lost, I’d probably still be doing other areas of law today.
I cannot express in words the sheer and absolute JOY that I felt that day – using the law to do some real good for a child with autism.
Honestly, I cannot remember a happier day in my entire life before or since then – and I’ve had a lot of happy days. I have likened it to the elation a football player must feel in winning the Super Bowl.
When I got home, I unloaded the hearing materials from my car and found the gift that the parent had given me but had asked me not to open until later.
I opened it. Inside was a plaque that I still have in my office to this day. It said:
One Hundred Years from now
It will not matter
what kind of car I drove,
What kind of house I lived in,
how much money was in my bank account
nor what my clothes looked like.
But the world may be a better place because
I was important in the life of a child.
(excerpt from "Within My Power" by Forest Witcraft).
After doing that case and realizing that there was no attorney in Indiana whose practice was devoted to representing children with disabilities, I decided to actively pursue special education law as my primary area of practice.
Over time, the other areas of law that I did fell away, as my time commitment to representing children with disabilities increased.
Today my practice is devoted solely to this area of law, and I’ve recruited a couple of other wonderful, talented Indiana attorneys to this area of law to represent parents as well. The need out there is huge, and I cannot do it all by myself.
As you can see, the series of events that occurred here could not have been devised by me but by Someone with a master plan for my life – and for others as well.
That’s the story of how I became a parent-side special education attorney.
It hasn’t always been easy or the path of least resistance. I know that there are people out there who wish I weren’t practicing law at all, who wish I would simply “go away” or wish I were still doing divorces and bankruptcies.
However, I know in my heart that I was called to this area of law by God, and I accept that there will be conflicts with others as a result.
I am reminded of this quote:
"Cautious, careful people always casting about to preserve their reputation or social standards never can bring about reform. Those who are really in earnest are willing to be anything or nothing in the world's estimation, and publicly and privately, in season and out, avow their sympathies with despised ideas and their advocates, and bear the consequences."
-- Susan B. Anthony, American civil rights leader, 1820-1906
With God’s help, I’m ready, willing and able to do all in my power to improve the position of families who have children with disabilities by helping to enforce their state and federal civil rights, even when that mission is at times unpopular with certain individuals and entities.
-- Dorene Philpot
Popular vs. Effective
Not a Popularity ContestA long-time Indiana parent advocate wrote this story in 2004, when asked about the results of being an ardent advocate for kids:
“I generally tell parents that if they are the subject of discussion in their local school, then they most likely are doing a good job advocating for a special needs child.
At some point, we all must make a decision as to whether we want to be popular or effective. It is difficult to be both, particularly when we advocate for such controversial issues. While everyone wants to be liked, taking action so that your child becomes an independent, self-sufficient, tax-paying citizen seems to me to be much more important.
When my daughter graduated from high school, I requested all her records, which, by the way were maintained in the safe at the high school. (When I asked the superintendent why my daughter's records were the only ones being kept in the high school safe, he replied, "Mrs. X, I can only speculate.")
When I reviewed the records, I discovered that every elementary school teacher kept a spiral notebook, where they were required, each day, to write down exactly what had occurred with my daughter. If either my husband or I went to school, they wrote down (from their perspective, of course) every word that we said. Since they had no idea I would ever see their notes, they were brutally honest about how they felt, not only about me, but about my innocent child. At one point, one of teachers speculated as to whether my daughter's connective tissue disorder was merely a figment of my imagination. She did not believe my daughter was "sick", even though she had watched my daughter dislocate her thumb while washing her hands at school on several occasions.
On another occasion, I had volunteered to help with the Valentine's Day party at school, only to be told that the teacher had quite enough help, thank you anyway. I came to the party and brought cookies. The teacher's notes that day stated, "I told Mrs. Howey that we did not need her help for the party. She came anyway and brought cookies. I DON'T KNOW WHY SHE WAS HERE."
The teacher was so paranoid, she couldn't understand why I came to the party and BROUGHT COOKIES, for heaven's sake. I'm sure she probably didn't eat any, thinking I had poisoned them.
The moral of this story is, once you have a "reputation" for being an effective advocate for your child, you can be as nice and pleasant as you want; you will still most likely be regarded as the "enemy". It doesn't matter how nice you are to the school staff and administration and it doesn't matter how nice the teachers are to your face. My daughter's third grade teacher was the "nicest" to me to my face. She appeared to be most understanding about my daughter's disability. Yet, she wrote the nastiest things in her notebook, not only about me but also about my daughter. At one point, when my daughter was complaining of pain and asking for pain medication (which was in her IEP), she wrote that she just told her to "be tough" and did not allow her to go to the office for her medication. At another point she wrote that I was rude because I never thanked her for "agreeing" to be my daughter's teacher. Funny. I didn't know teachers had the power to choose the kids that they wanted to teach, or more important, reject kids that they did not want in their class.
Moral of the too-long story: If you are the talk of the school -- and perhaps the town – and if the talk is negative, you are much more powerful than you ever imagined. If you had no power, those in power would not hesitate to chastise you to your face.
When I look at my daughter today -- who incidentally will graduate from nursing school on Saturday -- being "unpopular" was worth every name I was ever called. My goal in life is not to be liked, but to be effective.
Top 10 List for JudgesTop Ten Things a Judge in Delinquency or Criminal Court Can Do Under the Individuals with Disabilities Education Act (IDEA) Regarding Young People with Education-Related Disabilities Who are Facing Charges
Professor of Law
UDC David A. Clarke School of Law
1. Determine the child's special education status.
Determine if the child is in school, if the child has previously been identified as needing special education, and if the child had an Individualized Education Program (IEP) in the last educational placement. This information may be critical for determining whether the school system has an obligation to educate and serve a student aged 18-21 in an adult correctional facility. 20 U.S.C. 1412 (a)(1)(B)(ii), 34 C.F.R. 300.311 (a).
2. Find a way to get the child evaluated for special education eligibility. Insist that the parent have the child evaluated; or tell a probation officer to push for the evaluation; or refer the child yourself to school system personnel for comprehensive current evaluations. See, e.g., 34 C.F.R. 300.532 regarding evaluation procedures and your local school regulations regarding referral for special education by a judicial officer. Upon request, school system personnel must assess the child, without charge, in all areas of suspected disability. Thus, by pushing special education evaluation, a court can ensure that -- without charge to the parent or to the court -- comprehensive evaluations have been completed. Left to their own systems and means, delinquency and criminal courts often fail to obtain any evaluation of a child. When the court does obtain its own evaluation (regarding a child in adult criminal court), the evaluation is likely to be a forensic screening regarding competency or amenability to rehabilitation or perhaps a clinical psychological evaluation addressing the child's cognitive level (IQ) and basic diagnoses. Through the special education process, the parent and the child are entitled, as noted above, to evaluations relevant to any area of suspected disability. In addition to a complete psychoeducational, speech/language, hearing, and vision testing, the child may also have, for example, a clinical psychological, an occupational and physical therapy evaluation, a neurological and/or psycho-neurological, an evaluation of adaptive functioning and nonverbal intelligence, and a complete vocational evaluation.
3. Ensure that someone acquires and organizes for the court the child's educational records. Particularly for disposition (in delinquency cases), for sentencing (in criminal cases), and for transfer (between delinquency and criminal court), the judge should see the child's educational history. See, 34 C.F.R. 300.560 et seq. Typically, one will discern a failure by 2 school system personnel over a period of many years, beginning in early elementary school, to identify the child as eligible for special education services and a failure to provide the child with required special education services. The court should insist that an advocate for the child or an expert appointed by the court prepare a chart to provide for the court a summary of the child's school history. (Reviewing clearly-documented evidence that educators responsible for the child failed for a period of years -- in violation of federal, state, and local law -- to provide comprehensive services to the child, how can one conclude that a child is not amenable to services?)
4. Appoint an educational expert to advise the court. Locate an educational psychologist or other professional with expertise in psychoeducational matters (i.e., education-related disabilities and special education evaluations and services). An expert can review the child's educational history (including current and past evaluations), review the child's current and past IEP's (or the lack thereof), evaluate the child's current educational placement and services (or the lack thereof), and help the court and the parties to find appropriate and comprehensive services for the child.
5. Push the parent (or a child who is 18 or older) to find and hire a special education lawyer. One may have trouble initially finding attorneys who know and practice special education law and, in particular, finding attorneys willing to represent (regarding special education) parents of young people who have cases in the delinquency or criminal court. With some persistence, however, one can find and develop these connections, particularly as lawyers learn that attorneys' fees are available at market rate for parents who prevail in special education matters against the school district. 34 C.F.R. 300.513.
6. Understand what "special education", "free appropriate public education" (FAPE), "related services", and "transition services" are. Read the list of definitions provided to you (along with this Top Ten list). The services available through the school system to a child with education-related disabilities are comprehensive and meaningful. Provided and supervised properly, these services can help the child become stable, safe, and productive. Thus, the court should view these services as an alternative to incarceration and to punitive handling of the child through the criminal or delinquency system. The court can make attendance or residence at a special education placement and participation in special education services a condition of probation or pre-trial release.
7. Insist that the child have a current, appropriate Individualized Education Program (IEP) and a current notice of placement. Order that school system personnel (or personnel from another public agency responsible for providing educational services to students in adult correctional facilities) develop an IEP for the child. See 20 U.S.C. 1414 (d)(6), 34 C.F.R. 300.311 (b) and (c) (relating to the development of IEP's for children with disabilities in adult prisons) and 20 U.S.C. 1412 (a)(11)(c) (allowing the state to designate a public agency, other than the school system, to provide educational services for 3 children with disabilities in adult prisons). Order representatives from appropriate linking agencies -- i.e., agencies that provide certain transition services -- to be present at the development of the IEP. See e.g., 34 C.F.R. 300.344 (b) (regarding transition services participants); but see, 34 C.F.R. 300.311 (b)(2) (limiting the obligation to provide transition services). Insist that school system personnel (or personnel from another public agency responsible for providing educational services to students in adult correctional facilities) issue a notice of placement that specifies the child's current special education school placement.
8. Use the bully pulpit and the court's authority creatively to ensure that the child gets needed services (special education services, related services, and transition services). The special education law (i.e., the IDEA) does require that a party exhaust administrative remedies prior to obtaining relief from a court; nonetheless, a judge in a delinquency or criminal case (or a transfer hearing) can insist that parents, probation officers, and others responsible for the child take necessary actions. Moreover, if school system personnel fail to provide an IEP and special education, related services, and transition services, they are -- in effect -- likely interfering with the child's ability to comply with the court's order to attend school. A non-party who interferes with a party's ability to comply with a court's order (and with statutory requirements like mandatory school attendance) may be in civil contempt and/or subject to the court's authority under its own rules to enforce compliance with its orders. Simply summoning in school system authorities to answer the court's questions about the absence of special education, related, and transition services for a child may be sufficient to get people moving to serve the child. Remember two key concepts from case law regarding special education remedies when school system personnel fail to provide free and appropriate special education services: (1) placement of the child by the parent in private facilities at public expense; (2) compensatory education services to make up for time and education lost by the child. By obtaining these remedies through the special education administrative hearing process and using them strategically in relation to the child's criminal matter, an advocate for the child can increase dramatically the potential for identifying and securing, for sentencing purposes, legitimate and practical alternatives to incarceration. Courts should be aware of these possibilities and encourage such outcomes. (See #10, below.)
Judges also can convene inter-agency meetings, bringing officials and administrators together to discuss collaboration between agencies (including pooling money) to coordinate services for children under the IDEA and to avoid the ordinary tendency to push children with disabilities out of school, onto the streets, and into the delinquency system.
9. Ensure that a child resides in the least restrictive environment that is consistent with both community safety and with educating the child. As noted above, comprehensive special education, related, and transition services can 4 substitute for harsh treatment of a child in a delinquency or criminal incarceration setting. If a judge determines that a child requires a placement that is not community-based, however, special education law may provide a residential treatment alternative that, as a practical matter, secures the community's protection from the child while ensuring that the child receives special education, related, and transition services. If a child with educationrelated disabilities needs twenty-four-hour supervision to ensure educational progress, school system personnel must provide that level of care. Thus, a court in a delinquency or criminal matter should insist that school system personnel initiate and complete this residential placement process prior to the court's disposition or sentencing date. To facilitate the child's ultimate placement, the court -- prior to disposition or sentencing -- can issue orders for the child to be released temporarily for the purpose of attending interviews at potential placements. (Placement in a residential treatment center is less restrictive than a hospital or, of course, a prison.)
10. Recognize that, by ensuring that the child receives education and treatment, you have advanced an outcome that ultimately is best not only for the child and the child's family, but also for the court and for the community.
Ensuring that a young person has opportunities to become competent and productive and to fulfill legitimate aspirations is the best outcome for everyone involved. Education reduces recidivism. Over the years, courts have allowed school system authorities to shift responsibility for maintaining and training children with serious behavioral problems from the school system to the courts and to the juvenile delinquency system. More recently, that shift has been increasingly to the adult criminal system. The court can require thatschool system personnel resume responsibility for the child, thus shifting much of the burden back. Whenever appropriate, the court -- in its discretion -- can maintain supervision of the child and of the education/treatment process by making attendance and participation in the special education placement a condition of probation. Unlike disposition or sentencing orders, special education programs (IEP's) are a product of a team of people that includes the parent and the child, expert evaluators, teachers and school system administrators. That team can modify and adjust the IEP at any time to increase its efficacy. IEP's can -- and often do -- contain extensive behavior management programs; individual, group, and family counseling; small teacher:student ratios (including one-on-one, when appropriate); recreational and therapeutic recreational activities, mentoring, tutoring, job coaching, and other services that are, in reality, not available in incarceration settings.