Why Schools Shouldn’t Reject Your Child’s Diagnosis

Recently, I have heard (far too many) stories from parents that the schools are taking away services from their child and/or denying providing services because the school does not believe the child’s diagnosis.  This is wrong and illegal on so many levels, but I will adress the three (3) most important reasons why schools should never deny or reject a child’s diagnosis.

1. Only licensed physicians (medical doctors, doctors of osteopathy, and/or nurse practitioners depending on your state law) may provide a diagnosis and most IEP team members from the school district are NOT licensed physicians (school psychologists are not licensed physicians).

As an example, in New Jersey (and most states have similar laws to my knowledge) a person must have a license to “practice medicine or surgery”.  N.J.S.A. 45:9-6.  Diagnosis is practicing medicine.  N.J.S.A. 45:9-5.1.

If one of the school staff suggests or takes the position that your child doesn’t have a diagnosis that has been confirmed by a physician, ask such person if he/she holds a physician’s license in your state.

2. Many diagnoses are “hidden” disorders or neurological problems, but should not be denied simply because you can’t “see” them.

If a child has Down Syndrome or Cerebral Palsy or Muscular Dystrophy or is an amputee, the disability is likely obvious.  (I prefer not to automatically assume it is.)  However, many disorders like Autism, ADHD, Generalized Anxiety Disorder, Dyslexia, Cystic Fibrosis, Sensory or Auditory Processing Disorder, Krohn’s Disease, Depression, and others are what I call “hidden” disorders because they are often not obvious just observing a child.  This is another reason that only licensed physicians who understand what tests need to be performed in order to make the proper diagnosis should do so.  I’ve heard teachers and school administrators (people who should know better) say, “But [he/she] looks normal!”  What an awful comment about a child with a disability.

Frankly, I can’t understand why school personnel even question this.  For example, I have diabetes – a neurological disease.  Looking at me, you would not know this.  I do long charity bicycle rides of 70+ miles.  Most people would say, “He seems fine.”  While that may be the outward appearance, does it mean that I don’t have diabetes or that the disease does not affect me? It is wrong to deny that.

The huge problem with this is that when services are denied because the school does not observe the disorder, the child’s disorder may have devastating effects.  Children with Autism may have meltdowns; children with ADHD may be distracted in classes; children with Auditory Processing Disorder may become disoriented or frightened; children with Krohn’s Disease may become exhausted; etc.  Once this occurs, access to education is impeded.  This is exactly what IDEA, 504, ADA, and other laws are designed to prevent.

3. Schools may respond that they don’t witness how the disability impacts the education, but they also don’t see the aftermath when the child arrives home.

While it is true that under IDEA and 504, there are two parts to the question: (a) does the child have a diagnosis that fits them within an eligibility category? and (b) does the child need special education and related services or accommodations because of the disability?  20 U.S.C. 1401(3)(A); 29 U.S.C. 794.

However, children have amazing capacity to overcome their disabilities.  In colloqual terms, they can “hold it together” during school hours, but then come home and “let it all out”.  Children know home is their “safe space” and if anxiety, frustration, fear, depression, anger, or similar emotions build up during the school day because the disability is not being recognized by the school, the parents must bear the brunt of those released emotions in the home.

In fact, the U.S. Department of Education issued a guidance letter that states “IDEA and the regulations clearly establish that the determination about whether a child is a child with a disability is not limited to information about the child’s academic performance.”  USDOE Guidance, Letter to Clarke (2007).  That means behavior should also be considered – whether in school or in the home, because remember a parent is a critical member of the IEP team.  20 U.S.C. 1414(d)(1)(B)(i).

Conclusion

Schools should not reject a child’s diagnosis made by a licensed physician because (1) it is unlikely that an IEP team member is a physician; (2) just because they can’t “see” the disability doesn’t mean it’s not there; and (3) they need to consider all effects of the disability, including behaviors at home triggered by the failure to address the issues at school.

If a school rescinds services to your child under an IEP or takes away the IEP because they don’t believe your child has a disability, contact a special education lawyer ASAP.

 

Why Special Education Due Process Cases Are NOT Full-Blown Lawsuits

School board attorneys have managed to turn special education due process hearings into all-out, scorched Earth lawsuits, as if it was Microsoft vs. IBM.  In fact, they have convinced administrative hearing officers and judges that this is the way it should be.

But Due Process cases are not supposed to be full-blown litigation.  Here are 5 reasons why:

1. Timing.  Most civil lawsuits take more than a year to go to trial; in some states they can take up to 5 years before they go to trial.  This is why IDEA law requires cases to take no more than 75 days from complaint to decision20 U.S.C. §1415(f) (30 days resolution period + 45 days for hearing officer to issue a decision); see also 34 C.F.R. §300.515.  If a special education problem lingers too long, a child is missing out on his/her education.  Can you imagine if a case lasted 5 years?  The child would go from 3rd grade to 8th grade with no help.  Congress never intended this to happen.

2. Discovery. Civil litigation follows the Rules of Civil Procedure, which include discovery (getting documents, asking questions through interrogatories or depositions, and inspections of places).  By contrast, “discovery” in Due Process cases is informal.  In fact, the  hearing is the opportunity to get discovery, not before.  See 20 U.S.C. §1415(h); 34 C.F.R. §300.512.

3. Relief.  If you file a civil suit against someone in a court of law, you are seeking money.  Microsoft wants $10 billion from IBM.  In a special education case, you want your student with a disability to get a Free Appropriate Public Education.  In other words, you want the school to start teaching and being fair to your child.  See 20 U.S.C. §1415(i)(2)(C)(iii) (“shall grant such relief as the court determines is appropriate”); 34 C.F.R. §300.516(c)(3).  [Most courts have interpreted this provision to include an administrative hearing officer.]

4. Executive Branch. Civil lawsuits are conducted in courts of law – that means, the judicial branch of government.  See, e.g., Article III, U.S. Constitution.  Due process cases are conducted by an administrative hearing officer appointed by your state’s Department of Education.  20 U.S.C. §1415(f)(3)(A); 34 C.F.R. §300.511(c).  They are executive branch officers; not a court of law.

5. Fairness.  When two parties battle it out in a civil lawsuit, we presume there is a balance of power between them.  Justice is determined by the evidence.  In special education cases, Congress acknowledged that the parents are at a legal disadvantage20 U.S.C. §1400(d)(1)(b) (“The purposes of IDEA are . . . to ensure that the rights of children with disabilities and parents of such children are protected”); 34 C.F.R. §300.1(b).  Most parents are not lawyers, don’t have any legal training, nor have the financial resources like school districts and state governments.  IDEA attempts to level the playing field.

Conclusion

If the lawyer for the school district involved in your special education dispute is trying to turn your case into Microsoft vs. IBM, fight back against their tactics and let the hearing officer know that due process  hearings are not supposed to be all-out litigation war.

If you need the assistance of an attorney who will push back against these school district counsel tactics, then contact SchoolKidsLawyer.com.

 

Relentless – A Michigan Man

I’m going to tell you something about myself, but first I’m going to tell you a story.  You’ll wonder for a paragraph or two where this is going, but stick with me.  You will learn why this post is on my special education law blog.

What is a “Michigan Man”?

There are many articles and blog posts and other sources that try to explain this undefinable quality.   In “What Does It Mean To Be a ‘Michigan Man’?”, author John U. Bacon (a frequent writer about things Michigan, including the football team), admitted that “ultimately, to define it, I have to resort to Supreme Court Justice Potter Stewart’s description of pornography: ‘I know it when I see it.’”

He’s right.  And you have to be a Michigan Man to understand why he’s right.  First, you need a deep association with the University of Michigan (no, not that silly green and white agriculture college in East Lansing, but the Maize and Blue Wolverines of Ann Arbor).  [Note: I hate when after telling people where I graduated, they say “Oh, yeh, Michigan State.” Grrrrr.]

Not this!

Second, you need a passion about doing good work.  That passion requires hard work, sound ethics, and a focus unmatched by competitors.  This quality could be no better demonstrated than in the Amazon Show “All or Nothing: The Michigan Wolverines”.  [Outstanding television if you haven’t seen it yet.]

You strive to be a champion in everything you do, but you are not arrogant or presumptuous in that effort.  Perhaps, most importantly, you must be RELENTLESS.  Opponents always want to take you down and if you let your guard down for a moment, they will defeat you.  [Much like Michigan’s loss to Division II Appalachian State in 2007.]

You must be relentless to be a Michigan Man.

What Has This Got To Do With My Law Practice?

I am a very proud 1984 graduate from the University of Michigan’s College of Literature, Science & the Arts.  I received a Bachelor of Arts degree with a double major and a double minor.  I guess even in my undergraduate studies I was eager.

I don’t pretend to satisfy all of the qualities of a Michigan Man, but I will admit that is my goal.  That is where the practice of law, especially in the area of special education, comes into play.

I am relentless – in my search for justice; in representation of my clients; and in enforcing special education legal rights.

To my clients: Know that I will be relentless on behalf of you and your child with a disability.  If a school district is not meeting the requirements of the law, I will fight to change that so they come into compliance.

To my adversaries: Know that I will be relentless against your tactics.  I have been in litigation for nearly all of my 30 years of practice.  I have witnessed every strategy and method by opponents to try to get clients to back down.  [Some lawyers call this a “Scorched Earth” approach, because the lawyer will try anything – including burning everything – in order to get a favorable result.]  It won’t work with me.  I won’t give up.

Why?

Because I’m relentless.  Because I strive to be a Michigan Man.

 

 

Put Communications Between Teachers and Parents in the IEP

A new tactic being used by schools against parents of children with disabilities is to require / funnel all communications with the school through one person, usually the case manager.  We’ve seen numerous questions by parents if this is illegal or whether parents can request two-way communication be listed as an accommodation in the IEP.

Yes it is, yes it can and it should be.

But you won’t find the requirement in IDEA.  You’ll find it in ESSA.  Read on.

Not in IDEA

IDEA does not have a requirement or regulation that says that there should be ongoing communication between teachers and parents of children with disabilities.  Probably because Congress felt that such communication was basic common sense and they wouldn’t need to actually write it into a law.

What IS in IDEA is the following:

IDEA guarantees parents and their child with a disability numerous legal rights identified as “Procedural Safeguards”.  See 20 U.S.C. §1415; 34 C.F.R. §§300.500-520.  The U.S. Supreme Court has held that it is not only the child with the disability that has legal rights under IDEA, but the parents are also entitled to assert legal rights on their own behalf under IDEA.  Winkelman v. Parma City School Dist., 550 U.S. 516, 127 S.Ct. 1994, 1996 (2007).

One of the key Procedural Safeguards is “an opportunity for the parents of a child with a disability . . . to participate in meetings with respect to the identification, evaluation, and educational placement of the child.”  20 U.S.C. §1415(b)(1); 34 C.F.R. §300.501(b)(1) (emphasis added.)  The parents of a child with a disability are mandatory members of the IEP Team.  20 U.S.C. §1414(d)(1)(B)(i); 34 C.F.R. §300.321(a)(1).  Indeed, “the concerns of the parents for enhancing the education of their child” is critical in developing the child’s IEP.  20 U.S.C. §1414(d)(3)(A)(ii); 34 C.F.R. §300.324(a)(1)(ii); see also Honig v. Doe, 484 U.S. 305 (1988); Schaffer v. Weast, 546 U.S. 49, 53, 126 S.Ct. 528, 163 L.Ed.2d 387 (2005) (Parents play “a significant role” in the development of each child’s IEP.)

Parental participation in an IEP meeting is so vital, it is set forth twice in the IDEA regulations.  34 C.F.R. §§300.322(a), (c) and (d) (emphasis added); 34 C.F.R. §300.501(b)(1).

But that is all concerning parental participation in the development of an IEP.  These provisions don’t discuss the daily, ongoing communication with the school.

Now, we look at ESSA . . .

ESSA

In 2017, Congress passed and President Trump signed the Every Student Succeeds Act, 20 U.S.C. §6301 et seq. (2017) (“ESSA”).  This was an amendment of the prior No Child Left Behind Act (“NCLB”).

The ESSA guarantees parents of a child with a disability to participate “in regular, two-way, and meaningful communication involving student academic learning and other school activities” and “play an integral role in assisting their child’s learning.” To accomplish that goal, parents are “encouraged to be actively involved in their child’s education at school . . . [and carry] out of other activities, such as those described in section 1116.” 20 U.S.C. §7801(39) (emphasis added.)

The activities referenced in “section 1116” state that parents may engage in to participate in their child’s education include, inter alia, ongoing communications between teachers and parents and classroom observation. 20 U.S.C. §6318(d) (emphasis added.)

Put Two-Way Ongoing Communication in Your Child’s IEP

Thus, since Congress deemed this so important that they wrote it into law, it is important enough to make it part of your child’s IEP.  Show them the law quoted above.  (Maybe even print out this article and bring it to the IEP meeting.)  Tell them that you want this accommodation written into the IEP, especially if the school is trying to deny this right of access.

I’m quite sure that even teachers would welcome such ongoing dialogue.  The key is not to abuse this right – don’t contact the teachers several times every day.  Be reasonable as teachers have other students and their parents to meet this obligation.  But, if you do so reasonably, there is no legal basis for a school to block such regular and common sense communication.

It’s no longer just common sense – it’s now the law.

 

Bullying and the Gebser Letter

You probably know what bullying is. You may not know what a Gebser Letter is or what it does. Sit down, grab your cup of coffee and read on.

The Effects of Bullying

First things first. It is now widely accepted as fact that children with disabilities are more likely to be bullied than their neurotypical and able-bodied peers.  About 20% more likely, to be precise.  A study was performed by Chad Rose of the University of Missouri College of Education and Nicholas Gage of the University of Florida examining 6,500 students from K-12 during the years 2011-13.  Although the study did not include online bullying (which has now become more pervasive through social media), it found that students with disabilities were bullied more than other kids particularly in grades 3 through high school graduation.

More about the study can be found in this excellent article “Disabled children more likely to be bullied during school years, study says” by HealthDay News.  There is even more helpful information on the statistics on bullying and harassment of students with disabilities at the National Bullying Prevention Center’s website.

It is also now widely accepted that bullying negatively affects a student’s ability to learn.  It directly impacts that student’s education.  The U.S. Department of Education’s official blog published an article called “Keeping Students With Disabilities Safe from Bullying” that highlighted a 2013 Guidance Letter on bullying.  A year later, the USDOE’s Office of Civil Rights issued an even stronger Guidance on how schools should handle bullying.

What is a Gebser Letter?

In 1998, the U.S. Supreme Court issued its opinion in a case titled Gebser v. Lago Vista Independent School District, 524 U.S. 274 (1998), in which Justice Sandra Day O’Connor wrote the opinion for a divided court.  The Court decided that under Title IX, you cannot sue a school district for damages for bullying or harassment unless you have notified a school official who has the ability to take corrective measures on the district’s behalf of the misconduct and the school district is “deliberately indifferent” to the notice.

Out of that case came the very simple concept of preparing a letter – a so-called Gebser Letter – to provide the proper notice to the school.  The only question was whether the school then acts with deliberate indifference to the conduct.

This case emphasizes our constant mantra in special education law – If it ain’t in writing, it never happened. Document everything!

We strongly urge you to consult with a lawyer on the proper format and language of a Gebser Letter and/or if your child has a disability and is the victim of bullying.  We have provided a form Gebser Letter in our packet of special education legal forms, which are FREE to download, but remember that these forms do not constitute legal advice and are not a replacement for consultation with a lawyer in your state.  But the letter could get the ball rolling for your child and you.

Free Special Ed Legal Forms on SchoolKidsLawyer.com.

You can also have a 30 minute consultation with us for $100 to discuss your child’s case.

 

Public Schools Have Made Your Child the Enemy and You, the Taxpayer, Are Funding Their Battle

You pay federal taxes.  You have schools in your town.  Those schools have special education programs.  If you’re reading this blog, you’re probably a parent of a child with special needs.

Well, guess what?  If you have a dispute with your school about your child’s IEP or otherwise not meeting your child’s special education needs, YOU are paying for the school to fight against you and your child.

Guess what else? Even if you don’t have a child with special needs or don’t even have a child in the school district, YOU are still paying to have the school fight against the child with a disability and his/her family.

Yes, you heard that right.  YOU are paying to fight against children with disabilities in your community – maybe your own child.

Let me explain this in greater detail and why the system should change.

Federal Funding For Schools

The federal law known as the Individuals with Disabilities Education Act, 20 U.S.C. §§1400 et seq. or “IDEA” protects students with disabilities and guarantees they receive an appopriate education from their local schools.  This is accomplished and enforced through a federal funding mechanism within IDEA.  If a state receives federal funding for its schools, it must provide special education and related services to children with disabilities in its public schools.  20 U.S.C. § 1412.

In other words, some of the federal taxes you pay goes to fund special education and related services for students with disabilities.  You probably don’t object to ensuring a wheelchair-bound child can access the school via ramps or a child with diabetes having access to the school nurse to administer insulin shots.  You also likely don’t object to a chid with a learning disability receiving extra help in the classroom so they can achieve with their non-disabled peers.

YOU don’t object . . . but the schools are.

Where Does the Funding Go?

Those federal funds for special education – your tax dollars – are supposed to be used to assess if children have disabilities and evaluate their needs, prepare Individualized Education Programs or “IEPs” with special education adn related services to meet those needs, and decide the best location to provide those services for the child.  20 U.S.C. §1414.  Just as non-disabled children can get their education at their local public school for free, the goal of IDEA is to provide the same for children with disabilities, called a Free Appropriate Public Education or “FAPE”.  20 U.S.C. §1401(9).

Still sounds pretty reasonable, right?

How Does A School Make Sure It Provides a FAPE?

Schools are supposed to ensure a child with a disability provides a FAPE via two main mechanisms: (1) assembling an IEP team; and (2) ensuring that the rights of the child are protected and the parents are active participants in enforcement of those rights.  Tax dollars pay for schools to assemble an IEP team, which consists of the child’s parents (and the child if appropriate) and several key school personnel, to discuss how best to provide FAPE for the child with a disability.  20 U.S.C. §1414(d)(1).  States and schools must also put procedures in place to secure the legal rights of the child with a disability and his/her parents.  20 U.S.C. §1415.

This is where the system usually breaks down.  Because the parents and the school staff don’t alawys agree on how the IEP is developed or what services are provided to the child with a disability.  Thereby, a dispute arises.

How IDEA Addresses Special Education Disputes – The Problem

IDEA provides mechanisms to address these special education disputes between parents and schools.  If a school wants to do something with which the parents don’t agree or if the school doesn’t want to do something the parents have suggested, the school can issue a Prior Written Notice or “PWN”.  20 U.S.C. §1415(b)(3) and (c)(1).  Parents can review their child’s education records kept by the school as a check on whether the school is providing a FAPE.  20 U.S.C. §1415(b)(1).

There are other “Procedural Safeguards” in IDEA, but none that causes as many problem as a party’s right to file a complaint challenging the “identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child” a/k/a a “Due Process Complaint.”  20 U.S.C. §1415(b)(6) and (f).

Why is this a problem?  Well, anytime lawyers get involved, there’s a problem, right? [He says half-jokingly, half-seriously.]  Each party to a Due Process case has “the right to be accompanied and advised by counsel.”  20 U.S.C. §1415(h)(1).

Still not a bad thing until you realize who is paying the school district’s lawyer’s bill.  The answer is . . . you probably guessed it . . . YOU ARE!

Paying For The School District’s Lawyer

That’s correct.  Whether attorney’s fees are paid directly by the school district’s Board of Education or through insurance (which is purchased using school budget money), the source of the money paid to the lawyers fight against your child with a disability is tax dollars.  YOUR tax dollars.

Schools are misdirecting funds intended to provide education to children with disabilities by spending it on legal bills or insurance to fight special education cases.

So what does that mean?  It means YOU, the taxpayer, are paying for the attorney sitting across the table from you and representing the school district.  The harder the school district lawyer fights, the more YOU are paying him/her.  The school district never has the incentive to resolve the dispute because they’re not truly paying the bill.

Now, I don’t know if you have ever been in a lawsuit before, but if you have, you know what a financial burden it is to pay a lawyer.  You have the incentive to get it over as quickly as possible because, in all likelihood, you are not Bank of America (or Citibank or Goldman Sachs or some other big bank).  But if you didn’t have to pay for your lawyer, you’d fight to the ends of the Earth, right?  That’s how the school district views it.

Not What IDEA Was Designed To Do

IDEA was not set up to favor the school districts.  In fact, IDEA was designed by Congress to “level the playing field” so that parents had a stronger role in the education of their child with a disability.  Specifically, Congress stated: “The purposes of [IDEA] are to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; to ensure that the rights of children with disabilities and parents of such children are protected; and to assist States, localities, educational service agencies, and Federal agencies to provide for the education of all children with disabilities” among other goals.  20 U.S.C. §1400(d)(1).

IDEA was meant to improve collaboration and cooperation between schools and parents to help children with disabilities receive better education.  Certainly, Congress did not intend for states and schools to use federal funds to wage bitter lawsuit wars against parents and their children with disabilities.

But that is what it has become.  Ask any of my colleagues at COPAA.

So What Can You Do About It? – TAKE ACTION!

If you are like me and fed up with this system of injustice and abuse of taxpayer money, you can take action.  What school districts and their attorneys don’t want you to know is that because the source of funds paying the lawyer fees is public tax money, they MUST disclose such payments to the public who are paying those taxes.

In other words, if you live in a school district that is waging a special education war against a child with a disability, you have the RIGHT to know how much the school is paying its lawyers.

How do you find this out?  You make a Freedom of Information Act or “FOIA” request (or your state’s version of FOIA; for example, in New Jersey it is called the Open Public Records Act or OPRA).

Each state has a website for FOIA requests (I’ve listed a few below as examples) and usually a form to fill out.  On the form ask to see “All fees and costs paid to lawyers by XYZ Schooll District for special education disputes or legal disputes under IDEA for the last 5 years” or something similar.  Prepare for a fight, but you have the lawful right to that information as long as you live in XYZ School District.

New Jersey OPRA Records Request Website and Form

Florida Public Records Act Website and Forms

Texas Open Records Requests Website and Forms

Pennsylvania Open Records Request Website and Forms

For those not listed here, Google “[Your state] FOIA request” and look for an official state website URL.

Go get ’em!

Websites for Parents of Twice Exceptional (2e) Kids

 

 

 

 

 

 

 

What is your worst special education experience with a school district?

In the Comments describe your worst experience advocating for a child with a disability with your school district.  Did they fail to adequately find or evaluate a disability?  Did they design a poor IEP?  Did they fail to take your suggestions for the IEP?  Are you unhappy with the placement or classroom for your child?  Did the school district not provide the services they agreed to in the IEP? Is your child with a disability being bullied and the school district is not doing anything about it?  Something else?

Please stick to FACTS and not just namecalling.  Also, include your city, state, and name of the school district so that others can be aware.  If you don’t feel comfortable publishing that with your name, you can either post anonymously or only include your state.  We’d love to hear from you.

If you need a special ed lawyer to help you, visit the Council of Parent Attorneys and Advocates at www.copaa.org and start your search there.  If you are in NJ or PA, we at SchoolKidsLawyer.com can assist you.

 

Why Common Core is Evil

Soapbox time. Many of you don’t know what Common Core is or don’t care (because you don’t have children in K-12 any longer), but I’m here to tell you the evils of Common Core throughout our society. And it’s not as obvious as you would think.
 
Common Core was established to sound good and is not based on sound teaching principles. It was started in response to the No Child Left Behind Act (NCLB), which established minimum standards for schools to meet in order to show that they were successful in teaching students. Failure to show success meant loss of federal funding for those school districts. Sounds great, right? Accountability is good, right? But here is where the wheels fell off the wagon.
 
The way states and school districts began to measure and try to exhibit success was through standardized testing. If a school district could provide data that the students were doing well on these tests, they would satisfy the NCLB requirements. So, through Common Core, they could teach what was necessary to do well on the testing. Hence the start of ‘teaching to the test’.
 
Long before there was Common Core and standardized testing, there was teaching how to learn. Kids were taught how to learn things in their own way and how to think (and I’m not talking about kids who require special education, because that is an entirely different analysis). For example, memorizing the ‘times table’ – to this day I can quickly tell you what any single digit number x any single digit number equals because of such memorization. Very few kids in school (or recent graduates for that matter) can do that.
 
Here is another example: when my youngest child was learning division in math, he asked for my help. So I began by drawing the long division symbol (you know, the right parenthesis with the horizontal line on the top). My son says, “What is that?” I said, “It’s the division symbol, for long division.” He says, “I’ve never seen that.” I asked him, “Aren’t they using this to teach you division?” and I showed him an example of how it worked. He said, “No.” I thought to myself, WHAT? How on Earth are they teaching division? Again, Common Core destroys a very basic (and for decades successful) method of teaching math.
 
“So what?” you say. Who cares? Well, I’ll tell you, beyond the fact that our kids aren’t learning how to learn.
 
Imagine now you’re at your job (or you are the business owner) and an employee doesn’t know how to make sure a customer is paying the correct amount? Or they don’t know how to do simple accounting / bookkeeping? Or whether the sale is profitable? Or how to solve a problem? Or how to speak to a customer with proper grammar? Or how to write a report? etc. etc.
 
You now have a profound negative impact of Common Core on our economy – both in a micro and a macro sense. We are graduating an entire generation of people dependent upon computers and calculators, instead of thinkers and problem-solvers. And life is not a series of standardized tests. Indeed, life is a series of unexpected tests with varying problems that require independent, critical thought to solve.
 
Common Core is evil to the core. And regardless of the good intentions of those who came up with the concept, the implementation of it is atrocious and harmful to our kids.

Beast of Burden

You may look at the title and think you’ve accidentally wandered onto a blog about pack animals.  No, don’t worry, you’re in the right spot.  I’m not talking about actual beasts of burden, but rather the beast of the burden of proof in special education disputes and how to overcome the beast that it is (or how school districts and hearing officers interpret it to be).

IDEA does not say who bears the burden of proof (“BOP”) in special education disputes between parents and school districts.  However, BOP is a critical legal issue in litigation.  In simplest terms, the BOP means who has to prove their case and how strong the proof needs to be.  Most people are familiar that in criminal cases, the prosecution has to prove the guilt of the alleged defendant “beyond a reasonable doubt.”  In civil cases, the standard of proof is not that high and is typically “by a preponderance of evidence.”

In 2005, the U.S. Supreme Court decided the case of Schaffer v. Weast.  That case says that when a parent challenges an IEP, the parent has the burden to prove that the IEP is not appropriate for the child with a disability in the special ed context.  So, this means the parent must put on a strong case to convince the administrative hearing officer that the IEP is either poorly designed or improperly implemented for the child.  This is a difficult proof.

As a result of the Schaffer v. Weast case, most people in the special education legal arena assume that the parents always have the BOP, probably because it is usually the parents challenging an IEP.  But the BOP is not always on the parents and recently this has become a very important issue.  One example is when parents demand an Independent Educational Evaluation (“IEE”) of the child with a disability at the public school’s expense after rejecting the school’s evaluation, the school has two options: (1) pay for the IEE or (2) file a Due Process case.  If the school files for Due Process to defeat an IEE, the school district bears the BOP.

Another example is placement of a child with a disability and here is the recent critical trend.  A school district always bears the BOP that it is in compliance with IDEA.  A Prior Written Notice (“PWN”) is required whenever a school proposes to change the placement of a child with a disability.  20 U.S.C. §1415(b)(3).  A PWN must include at least a description of the proposed change in placement by the school district, an explanation of why the school proposes to change the placement and the basis for such explanation, and a statement that the parents of a child with a disability have the right to challenge such action. 20 U.S.C. §1400(c)(1).

Now, if parents seek to change placement of the child with a disability (usually from the public school to a private school that the parents believe is more appropriate), the parents are always entitled to pay for such private placement out of their own pocket.  If the parents want the school district to pay for the private placement, they will have to file for Due Process and prove that the public school did not provide a Free Appropriate Public Education (“FAPE”) to the child and that the private school is more appropriate.  34 C.F.R. §300.148(c); see also Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 129 S.Ct. 2484, 2493, 2496, 174 L.Ed.2d 168 (2009).

Here comes the tricky part to which I want you to pay close attention.  Let’s say the parents have done that.  They’ve taken on the school district and met their BOP that the school did not provide FAPE to their child with a disability and that placement in the private school is appropriate, so the administrative hearing officer or judge has said the public school has to pay for the private school.  Let’s assume that a week after the parents have won that case, the school calls another IEP meeting and wants to change placement of the child back to the public school.  Do the parents now have to bear that beast of burden of proving once again that the school does not provide FAPE and the child should remain at the private school?  Is that fair?

Well, I argue it is not.  And in my brief recently filed in the 9th Circuit case of J.M. v. Department of Education, State of Hawaii, Case No. 16-17327, I argue that the parents in that exact scenario should not again have the BOP immediately after they have won the private placement case.  Cross your fingers that this becomes good law for parents who are fighting this same tactic by school districts across the country.

If you have questions about burden of proof in special education cases or need any assistance with your child with a disability, please contact us via our website schoolkidslawyer.com or via email at info@schoolkidslawyer.com.