Tales from the Front – Actual (Illegal) Statements Made by School Personnel

I did a seminar recently. My seminar was on what to expect at an IEP/504 meeting. Here are some of the comments I heard from parents spoken to them by school districts:

“We are at our quota of eligible disabled students already. We can’t have more.”

“Evaluations must be done in the summer time.”

“Your child (with muscular dystrophy) is not allowed to use a wheelchair in school.”

“[A disciplinary action against a child with a disability and IEP] is completely an internal school matter. You don’t need to worry about it.”

[From a case manager] “I’m not sure what to do. What do you want me to do?”

“You want a person assigned to your child (in a manual wheelchair) to ensure they get out of the school during an emergency? We don’t do that.”

“[A child with MD but not in a wheelchair] is not entitled to use the elevator. She must use the stairs.” (Child falls a lot).

“Your child is depressed.” (No, exhausted from fatigue by the middle of the school day.) “She needs to be on anti-depression medication so that her grades improve.”

[Child has received 50s and 60s on math tests, yet child got a “B” on her report card].
———————-

I heard these statements with great dismay. They are not only false, hurtful, and deceitful, they are illegal. The law protects against all of these things, but too often parents don’t know that the schools are wrong.

If you think the school is telling you incorrect things concerning services or accommodations for your disabled child, please contact a special education lawyer or advocate and ask questions.


Stop the Bullying Madness – That Means YOU, Parents!

On January 6, 2011, New Jersey Governor Chris Christie signed into law one of the toughest anti-bullying civil rights laws in the United States.  As with most laws, the creation of the law was the easy part.  The difficult part is the enforcement.  Most states have anti-bullying laws (some, like New Jersey apply to cyberbullying) but the training and implementation of those laws has been sporadic at best; ineffective at worst.

There continue to be events in which kids are committing suicide or having emotional problems because they are being bullied.  The old schoolyard bully who openly picks on a fellow student has gone by the wayside, primarily because such bullies have gotten smarter.  Now they have resorted to anonymous (or what they believe is anonymous) cyberbullying – texting or posting on social media – to intimidate other kids.

– There is the 12 year old Rebecca Sedwick who jumped off a building to her death because of incessant text bullying by her ex-boyfriend’s new girlfriend and a group of girls that Rebecca thought were her friends.  Thankfully the Sheriff arrested two of the girls responsible after they boldly and stupidly remarked about their involvement in the bullying and death of Rebecca. http://www.hlntv.com/article/2013/10/16/rebecca-sedwick-cyber-bullying-arrests

– Joel Morales, a 12 year old boy from Harlem committed suicide after relentless bullying. http://nymag.com/daily/intelligencer/2012/05/harlem-boy-commits-suicide-after-harsh-bullying.html

– In Buffalo, NY, 14-year-old Jamey Rodemeyer committed suicide after being consistently bullied at school.  http://cartersville.patch.com/groups/schools/p/bullying-in-america-reaches-home

There are so many of these incidents that this blog post could go on for pages.  It is disgraceful.

But there are plenty of laws on the books supposedly to prevent this.  Here is a great page (PDF file) that summarizes the various state laws on bullying: http://cyberbullying.org/Bullying-and-Cyberbullying-Laws.pdf

In my opinion, however, it is not laws that will stop bullying.  It is parenting.  Parents of both bullies and victims need to pay attention to their children and their activities and spot the signs of bullying.  In many of these cases, the parents saw some of the signs, but chose to ignore them with the age-old response of “kids will be kids.”  No!  Bullying is not kids being kids.  Bullying is a crime and it is hurtful.

So, parents and school personnel need to learn the signs of bullying, spot them, and do something about it.  Proactive.  I keep seeing commercials that tell kids to speak up about bullying.  Why are we putting the onus on kids who are in the most precarious of positions in the bullying scheme?  Why are we taking the pressure off of parents from being parents?  Parents of victims need to protect their children and, if need be, report it to the authorities and consider removing their child from the school environment if the school will not take action.

But my strongest admonition is for the parents of bullies.  YOU need to take responsibility and parent your kids.  This means discipline; this means controlling your child’s actions; this means teaching your children that bad actions, such as bullying, have bad consequences.  It is not an excuse to say you can’t control your children.  You are the adult; you are the parent.  You accepted that role the second you knew that you were going to have a child.  So you must examine your own actions, because bullies often beget bullies.  And, trust me, if I learn that one of my clients was bullied, I’m not just coming after the child who bullied my client – I’m coming after you, the parents too.

Let’s wake up and stop this bullying madness.  Please.  TODAY!

If anyone has a bullying problem, please contact my office for assistance.  Phone: 856-335-5291; Web: http://schoolkidslawyer.com; Email: info@schoolkidslawyer.com.

Robert C. Thurston, Esq.


Are Special Education Advocates Performing UPL (Unauthorized Practice of Law)?

The answer to the question posed in the title is, typically, lawyerly – it depends.

What is the “practice of law”? “Unauthorized practice of law (UPL)”?

First, let’s discuss what is the “practice of law” and “UPL”.  Virtually every licensed occupation is regulated by the State.  For example, in Pennsylvania, the Bureau of Professional and Occupational Affairs regulates almost every licensed occupation, such as accountants, nurses, barbers, funeral directors, dentists, etc.  However, lawyers are regulated exclusively by the highest court of the state – in Pennsylvania, it is the PA Supreme Court.  This regulation includes the power to define what constitutes the practice of law.  See PA. Constitution Article V, Section 10(c).

That is not as easy as it sounds. Courts don’t face this issue very frequently. Generally, there are three categories of activities / services reserved to those who are admitted to the bar: (1) advising clients as to what the law is to enable them to act and pursue their affairs; (2) preparation of documents that require familiarity with legal principles an ordinary person wouldn’t know (such as preparing a court document); and (3) appearing before a public tribunal, such as a court or administrative hearing.  Put another way, a person who doesn’t have a license to practice law should not tell someone what the law is and advise them to act accordingly, prepare a legal document, or show up in court on behalf of anyone but him/herself.  Doing so would be the unauthorized practice of law, or “UPL”.

A person can get in serious trouble for UPL.  In fact, in most states it is a crime.  In Pennsylvania, for example, it is a misdemeanor of the 3rd degree for a first time offender; misdemeanor of the 1st degree for a repeat offender.  See 42 Pa.C.S. Section 2524(a).  It may also be a violation of a state’s Unfair Trade Practices and Consumer Protection Law, which would subject them to civil (money) penalties.

Special Ed Advocates and UPL

So how does this apply to Special Education Advocates?  Again, it depends.  A description of the typical special education law case timeline is helpful.

Briefly, the first event is that a child is diagnosed with a disability that triggers the right to have special education in school.  The next event is that a team of school personnel, physicians, and the parents decide what should be in the special education program for that child (this is called an Individualized Education Plan or “IEP”).  Sometimes there is disagreement over what should be in the IEP or how the school is implementing it.  What comes next may be a due process complaint and hearing.  This is a semi-formal process where the school and the parents put on a case before a hearing officer (not always even a lawyer).  The hearing officer decides whether the services are appropriate or not.  If either the school or the parent disagrees, they can then appeal that hearing officer decision to a court.

The laws and regulations make it clear that parents are entitled to have “other individuals who have knowledge or special expertise regarding the child, including related services personnel as appropriate” with them at IEP meetings.  See 20 U.S.C. §1414(d)(1)(B) and 34 CFR §300.321(a)(6).

As a result of this language in the laws, a cottage industry of advocates, mostly made up of parents of disabled children themselves who are veterans of the battles with schools over special education, has developed and flourished.

Do not misunderstand me – I think advocates are wonderful and perform great services to parents, especially since most parents of special needs kids are heavily burdened with medical and other expenses making lawyers unaffordable at almost every level.  Well-trained advocates offer objective, yet passionate assistance to parents so that they can make informed decisions without the emotions getting in the way.

However, there are limits to this participation.  The portion of the law quoted above comes under the definition of an “IEP team”.  Matching that with the description above of what is the practice of law, an advocate should stick to helping a parent to prepare for and make it through the IEP meeting in an informed manner.  The advocate should be careful not to suggest a path for a parent based on an interpretation of the law – this is acting like a legal advisor and is likely UPL.  However, an advocate can certainly tell a parent, “the law states that an IEP should include . . .” or that the law requires certain procedures to be followed.

So what CAN’T an advocate do?  This depends a great deal on state law.  While some states permit advocates to act as lawyers in due process hearings, most states still do not.  To be safe, an advocate should not prepare a due process complaint, represent a parent at a due process hearing, or draft an appeal of the hearing officer decision in a court pleading.  These are all the practice of law and if an advocate, not licensed to practice law in that state, provides one of those services, it is UPL.  Of course, there are licensed attorneys who provide advocacy services, so they are entitled to provide any and all of these services.

Why is UPL a bad thing?

The reason why the above-described tasks are UPL may not be so obvious.  Many people might think, “I represented myself in my own divorce case, so why can’t someone help me with my special ed case?”  And therein is the answer – you can represent YOURSELF in any legal proceeding (that is called acting “pro se” or for yourself), but someone else cannot represent you.  Why?  Lawyers are trained to understand, not just the law, but legal procedure.  For example, it is important in a due process complaint to make sure you plead every option available to you; failure to do so might give up a right or two or seven.  In some states, you may have a civil rights case under Section 504 or the ADA, but many advocates don’t know this or even if they do, they don’t know you MUST include those allegations in your due process complaint.

Two other critical examples are the Rules of Evidence and Appellate Procedure.  Most advocates don’t know the rules of how documents or testimony get “into evidence” so that a judge can consider them.  Further, if you have to appeal an administrative decision to court, it is like an appeal and sometimes only the record that is made at the due process hearing is considered by the court and if you don’t get the information in at the due process level, you might have to fight a battle at the appeal level to get it in – and you might lose.  Many well-trained advocates don’t know these rules because they aren’t licensed lawyers.

To conclude, Advocates are a necessary and crucial part of the special education process.  There is no better (and more affordable) help with making sense of this maze of special education law, especially when you are simply trying to get services for your child at school, than a well-trained advocate.  However, remember that they are limited in what they can do and when it comes to advising you on a legal path or preparing your complaints or representing you at a hearing, only licensed attorneys can help you in those situations.


Recommended reading: “Guidelines for Choosing an Advocate” from COPAA.

 

I love teachers! . . . (really, I do!)

There is a bad reputation out there for special education lawyers, advocates and parents of special education kids.  The reputation is that we hate all school teachers and those who work in the schools and we are simply out for vengeance.

I’m going to focus this post on the misrepresentation that I must hate teachers because I’m a special education lawyer.  Absolutely – 180 degrees – the opposite.  I LOVE teachers.  Let me explain why and how we all fit as perfectly aligned spokes in the wheel of special education.

Teachers have thankless jobs.  Often they aren’t paid very well, but are teachers because they love kids and they love education.  Big plus in my opinion.  After all, that is what we all want; people in the field of education who love to teach kids.

Most teachers are also sensitive to the needs of disabled / special education kids.  They understand the challenges that these kids face and try their best to accommodate them so that they, too, receive a good education along with the “neuro-typical” or otherwise non-disabled kids.

Some teachers even go out of their way (bless their hearts) to go above and beyond their job requirements to help these kids.  Some even violate rules or the directions of the administrators in order to assist special ed kids.

So, often, my beef is not with the teachers.  In fact, almost never is my argument with the teachers.  My argument is with the school district who handcuffs the teacher or who misinforms the teacher as to what he/she should do for the special education child.  I have seen the school districts actually incorrectly state the law to teachers.  Whether that is intentional or not, I don’t know.

Granted, there are some teachers that are not altruistic and just want their paycheck.  But like any occupation, there are a few bad apples in every bunch.  Of course the really bad ones make the news, which is unfortunate because the overwhelming majority of teachers are fantastic.  And I love them for that.  It is no different than lawyers and having to deal with the ones that make the news leaving a bad impression on people that all lawyers have heinous or monetary objectives.  Similarly, there are doctors who don’t really care about their patients and may even commit fraud in order to make money.  But these bad apples do NOT represent the bunch.

Where I, as a special education lawyer, fit in to this mix is just to make sure the disabled child (and his/her parents) have a voice and to assure that school districts are meeting the requirements to provide the child with a Free Appropriate Public Education (“FAPE”).  My job, as I see it, is to level the playing field.  Sometimes that simply means legally justifying or backing up what the well-intentioned teacher is already trying to do, but for whatever reason the school administration is not permitting.  Frequently, I work with and speak with teachers (the old line, ‘Some of my best friends are teachers’ ha ha – but it’s true) as a team.  We work together to find solutions for the children.

If you walk away after reading this blog post with ANYTHING, please keep the idea that special education lawyers, advocates and parents do not hate teachers.  We love them.  We love them just as much as the disabled children we are trying to help.

So let’s work together in this area of law.  Do not generate stereotypes that only serve to interfere with cooperation and progress in the field of special education law.  Our children deserve better.


The Law on Independent Educational Evaluations (IEEs)

Evaluations of your disabled child are critical to your child’s success in school and life.  If done properly, they can provide insights into services, therapies and accommodations that your child needs to access a “free appropriate public education” or FAPE.  But if not done properly, it can prevent your child from ever getting a proper education and destroy his/her future.

The PLAAFP

If your child is eligible for an IEP, his/her IEP must accurately reflect a child’s “present levels of academic achievement and functional performance” or PLAAFP.  20 U.S.C. §1414(d)(3); Schaffer v. Weast, 546 U.S. 49, 53, 126 S.Ct. 528, 163 L.Ed.2d 387 (2005) (“Each IEP must include an assessment of the child’s current educational performance, must articulate measurable educational goals, and must specify the nature of the special services that the school will provide.”)  An IEP must address all of the student’s needs, which should be detailed in the PLAAFP part of the IEP.

How to make sure the PLAAFP is accurate

The only way a PLAAFP is accurate (and then the goals are appropriate) in an IEP is to make sure the evaluations of your child are valid and accurate.

The main body of IDEA 2004 enables schools to perform evaluations of children with disabilities.  See 20 U.S.C. §1414.  That section talks about initial evaluations and reevaluations and how they are performed and used by school district personnel in making special education decisions, like IEPs.

What if the school’s evaluations are not accurate or finding what you or your child’s doctor suspect?

If a school’s assessments are not matching what you have observed or your child’s outside medical personnel are documenting, you may need to get independent evaluations of your child.  But that is expensive, especially if your insurance doesn’t cover them.

Perhaps one of the more important sections of IDEA is found in the federal regulations.  34 C.F.R. §300.502 is the regulation for Independent Educational Evaluations or “IEEs”.  Here are the most critical portions:

  • “The parents of a child with a disability have the right under this part to obtain an independent educational evaluation of the child” subject to some rules.
  • “A parent has the right to an independent educational evaluation at public expense if the parent disagrees with an evaluation obtained by the [school] . . . .”
  • “If a parent requests an [IEE] at public expense, the [school] MUST, without unnecessary delay, either (i) File a due process complaint . . . or (ii) Ensure that an [IEE] is provided at public expense unless the [school] demonstrates in a [due process hearing] that the evaluation obtained by the parent did not meet agency criteria.”

The most important parts of this are that (a) the parents have a RIGHT to request an IEE if they disagree with the school’s evaluation; (b) the IEE must be at public [the school district’s] expense; (c) the school district has ONLY two options – to enable the IEE or to challenge it via a due process hearing.  Very simple.

The school district’s delay tactics

But, the school districts want to try to make this more difficult.  How?  They delay, delay, delay in responding to a request for an IEE.  They believe this is defensible because of the clause “without unnecessary delay.”  The school district will argue that a few days, a few weeks, even a few months is not unnecessary delay.  The courts have not really dealt with this issue decisively yet.  I think it is a very fair counterargument by the parents that a few days is OK, but a few weeks or longer is not OK.  After all, the further an IEE is delayed, the further a revised or improved IEP is delayed, and thus the further the child’s FAPE is delayed.

Do NOT allow a school district to linger on your request for an IEE.  If you have valid reasons to request an IEE, keep sending reminders to the school of your request.  If they delay too long, contact a special education lawyer or file a due process complaint on your own on this ground.

If you wish to demand an IEE for your child, download our FREE special education forms packet which includes a letter IEE demand.


Pass the IEP, please!

You remember at the dinner table (perhaps most notably the Thanksgiving Dinner table) when you would ask someone to pass something along?  Maybe it was the stuffing bowl; maybe it was the cranberry sauce; maybe it was the dinner rolls; or maybe it was the fruit cake (OK, I know it wasn’t the fruit cake because no one asked to have that passed, unless it was to pass it along to the waste basket).

The point is, you wanted to make sure everyone at the table had equal and full access to every part of the meal.  Wouldn’t you have felt left out if you didn’t get any mashed potatoes? or Pumpkin Pie?  or [insert your favorite part of the meal here]?  Of course you would.

The same principle applies to your child’s IEP.  You want to make sure each and every teacher and school staff member that may encounter your child has equal and full access to your child’s IEP.

Failure to do so might result in one teacher violating the IEP unknowingly or not knowing how to respond to a certain situation.  For example, if the gym teacher doesn’t know that Tina isn’t supposed to be required to participate in group sports and the gym teacher makes her the pitcher in softball, Tina may have a complete meltdown or other reaction that triggers her disability.  Then Tina may have to miss her remaining classes for the day, all because the gym teacher didn’t even know Tina had an IEP and wouldn’t have assigned her to that task had she known.

As a parent, do not assume the school has circulated your child’s IEP to all of the contact points.  You need to handle this yourself.  Whether that means sending an electronic copy to each contact person by email or even walking a hard copy in to every person, you need to assure that this is done.  You need to consider every potential aspect of your child’s day: special education teachers; general education teachers; “specials” teachers (art, music, gym, computer lab, etc.); school nurse; school guidance counselor; director of special education; vice principal; principal; even the janitor, if that person interacts with your child.  So what if they’ve already received it?  A duplicate is not going to harm them (and an electronic duplicate doesn’t harm the environment).

This is not a silly concept.  If your child is experiencing some aspect of his/her disability, let’s say it is epileptic attacks, and a teacher encounters your child not knowing what is going on, they may make an incorrect and potentially dangerous decision.  A simple thing like providing these personnel with the IEP at least will clue that person into the fact that someone in special education or the medical staff need to be alerted to the situation.

So, much like the salt and pepper on the dinner table, make sure you pass the IEP to everyone at your child’s school to avoid any misunderstandings and help your child succeed in the system – even if they never have need of the IEP (like the salt).


Special Education law is not about revenge

Many clients come to me with vindication on their minds.  They feel they have been wronged and want to inflict pain on whomever did the wrong.  They want revenge.  This is especially true in the field of special education law.  They want to “get back” at the school district that they felt is interfering with their child’s education; or, the school district wants to show the parents their place, which is not to interfere with how they are handling the disabled children in their programs and that, somehow inherently, they know better than the parents.

However, that is not what the law is about.  The following is a longer version of what I tell any client that comes to me with a revengeful goal.

The law, especially the civil law of which special education law is a subpart, is not about revenge or vindication.  If that is the sole goal of pursuing legal assistance, two things are true for me: (a) I won’t take the case; and (b) the client will never feel satisfied.  More on these two results in a minute.

But, first, the response I get to this principle is “Well, what’s the point then?”

The answer to this is very simple: The purpose of civil law (and especially special education law) is to put the wronged person back into the same position they would have been had there been no wrong.

Let’s examine this with a simple hypothetical: Imagine a neighbor was trimming her hedges and she accidentally cut off a limb on a tree in your yard.  You had grown that tree from a sapling.  The tree doesn’t die, but does suffer a bit in growth.  You have to spend a lot of time and effort to protect the tree and make sure it lives.  You are really mad at your neighbor (probably, there is some other cause of that anger and this merely exacerbated it).  You want your neighbor to go to jail.  You come into my office seeking legal help.

Aside from me giving you a shorter version lecture on this topic, what will the law do?

First, the law will NOT put your neighbor in jail.  Jail is only for criminal actions and this is not a crime.  It was an accident, for which the civil law is designed.  We will discuss the nature of the civil wrong – it is trespass (unlawful encroachment onto your property without permission causing a harm).

Second, I will try to ascertain why you are so angry (if it is caused by something other than the tree) and what the true costs (we lawyers call this “damages”) the harm to your tree incurred.  For example, you spent money to protect the tree; the tree survives; and there may be some sentimental value to the tree to you.

Third, I will discuss what is the goal of the case.  What would put you back in the position you were had your neighbor not accidentally cut off your tree limb?  This might be an apology; it might be some money to reimburse you for the costs incurred; or it might be for the neighbor to pay to have a new tree planted in your yard.

But you want to sue and get them back for what they did.

At this point, I will politely thank you for coming to my office and advise you that I don’t take cases for revenge.  Maybe you will say, OK, I don’t want revenge, I just want some repayment here.  Then we have a conversation on how to go about achieving the goal.

Now, this is the most important part of this post.  Achieving the goal is RARELY if EVER reached by litigation, by suing someone.  Adopting a “bully” attitude NEVER achieves the goal.  Remember that old saying your mom used to say, “You catch more flies with honey than with vinegar?”  (We won’t discuss why you want to catch flies in the first instance, but you get the point).

There are many ways to achieve the goal without a big fight.

These principles ARE and SHOULD BE applied in the special education arena.  If your disabled child is not receiving services that provide them with an equal opportunity at a “free appropriate public education” (FAPE), then we need to have a discussion on how to achieve that goal.  Resolution may be as simple as explaining to you your rights as a parent and your child’s rights and how the process works.  It may also be as simple as being an active, yet collaborative, participant in an IEP meeting or an eligibility meeting or in the evaluation process.

Occasionally, clients come to me after working with an advocate.  Some advocates (certainly not all or even most, but some) either provoke the revenge mentality or make it worse with the clients.  While I understand the reasons behind this (often advocates are parents of disabled students who have had to fight their way through the system on behalf of their own child with little knowledge of special education law and with some resistance from the school districts), it does not justify it.  Some advocates misdirect their anger from their own experience towards the client’s school district.  This causes a lot of misperception and sometimes legal inaccuracy about the client’s situation, and consequentially creates a negative atmosphere in which to create a solution.

Representing parents in a special education matter must be handled in a calm, objective atmosphere with the goal of a collaborative solution that truly helps the child.  Bitter fights over minor procedural mistakes do not necessarily help the child.  Certainly, a battle purely on “principle” is not a reasonable strategy because it ignores the needs of the child.

Part of this calm, objective atmosphere is the realization of two key facts: (1) the parents are often panicked or in grave fear for their child’s future; and (2) most school district special education personnel really want to do the best thing for the child.  [Thank you to my colleague Katie Kelly www.katiekellylaw.com for expertly enunciating these two salient issues to me.]

Most people, including those on the school district side, do not go into education (or special education, for that matter) without the bests interests of children in mind.  Extremely few school district personnel are vindictive about a special education situation.  Thus, parents should likewise not be vindictive.  It makes resolution that much harder (and expensive, if you are paying a professional, such as an advocate or attorney).

So, if you arrive in my office or contact me with a special education issue, I will represent your rights zealously and with passion.  I will try to reach the best possible solution to your disabled child’s educational problem.  I will NOT seek revenge or a bitter fight with the school district, but I will fight with fervor if I encounter the rare obstinate administration.

If you keep these thoughts fresh, in the end, you will be much more satisfied with the result and with the legal process.

Now I will sit and wait for the anticipated onslaught of hate mail . . . LOL

 


Playing (and Winning) the School District’s Game of Chicken

[Appeared previously on Special Education Advisor blog]

Probably the most frustrating part of being the parent of a child with a different ability[1] is the response from the very organization you hoped you could trust the most to do right by your child – your school district.  After all, teachers and administrators are trained to adapt the teaching environment to help my child, right? (No.)  I pay my property taxes, so I should be able to control how the schools work, right? (You should, yes, but in reality you don’t.)

So what should I do when the school district won’t do what they are supposed to do for my child?

The answer to this is simple: learn how and why the school district plays a game of chicken with you, the parent, and how to win that game.

The Game of Chicken

You’ve probably witnessed or been in the game of chicken with your school district, but maybe didn’t even know it.  All you know is that your child is suffering and the school doesn’t seem to be doing anything to help.  Your child’s grades may even be failing.  Perhaps, worse, they may be doing harmful things to your child, like physically restraining him/her or locking your child into an isolation room or putting him/her in a classroom with bad behavior kids.  Your child is not a bad behavior child[2] because you have a diagnosis that says otherwise.

The game of chicken may also be occurring at any stage of the game – prior to your child’s diagnosis; before a 504 plan; before an IEP plan; and even after the IEP plan is in place.  Essentially, it appears to you as the parent as they just are doing nothing.  For example, you may be requesting an Independent Educational Evaluation (IEE) for your child, which is your right as a parent[3], but the school says that you have to use their panel of approved evaluators.  The school district is playing chicken to see (a) if you know your rights; and (b) whether you know your rights or not, you’ll fight hard enough to use your own evaluators rather than those the school says you must use.

Defining the Game of Chicken is easy enough: seeing if you, the parent, blink first and give up your fight.

It really has nothing to do with whether you’re right or wrong.  It has to do with whether you are prepared to fight for your child and your child’s rights or if you’ll give in either because you think the school district really has your best interests at heart or you don’t have the stomach or resources to fight to the end.  Usually, the school district wins this Game of Chicken.  Unfortunately, your child loses.

But you don’t have to lose the Game of Chicken.  All you need is some information and will power (sometimes, depending on how stubborn the school district is, you’ll also need a lawyer and some money).

Why a Game of Chicken?

First, let’s discuss why the school district plays this game.  You may have heard some of their excuses – “we don’t have this in the budget right now” or “we don’t have the resources to do this” or “do you know how many children with special needs we have to deal with?”  All of these are extremely lame (and invalid) excuses.  None of them are the REAL reason the school district plays the Game of Chicken.

The real reason the school district does this is . . . wait for it . . . they usually get away with it.  The longer they put off complying with the law, the more money they save the school district or the money can be directed at one of their existing programs, like school sports, etc.  The school district knows that most parents of special needs kids don’t know their legal rights or the requirements placed on the schools.  Thus, the parents don’t know that if they fight hard or long enough, the school district MUST comply or have to pay to send your child to another school district that can accommodate his/her needs.

Let’s go back to our example about the IEE.  You’ve done your research and found some qualified people to do the evaluation, but they aren’t on the school board’s approved list of evaluators.  The school district tells you, no, you have to use our list.  Not only are they wrong, but the school district has to pay for the evaluation by your IEE team, not you.[4]  Most parents will think to themselves, “Well, I want this done right, so I’ll just pay for the IEE out of my own pocket.”  You’ve just spent money you didn’t have to.

The truth is that the school districts must comply with federal and state laws and regulations on these issues and will only do so if really pushed by those who know their rights.  This is one reason that if you aren’t adequately informed and trained on handling special education matters, you need an advocate or lawyer who is on your side.  It will save you time and money while you’re in the game.

How to Win the Game

There are three key tips to winning the Game of Chicken for your child with special needs.  (1) Don’t back down.  (2) Know the rules.  (3) Focus on the goal.  You may think these sound pretty generic and apply to any game or sport and you’d be right.  That’s because they apply to the Game of Chicken just like they would apply to a soccer match.

1.   Don’t Back Down.

Tom Petty sings, “Hey, baby, there ain’t no easy way out . . . Hey, I, will stand my ground . . . and I won’t back down.”[5]  Make this your theme song.

As a 25 year veteran of the courtroom and numerous legal squabbles, I understand that confrontation is not everyone’s cup of tea and that it can be very intimidating.  You can feel that the cards are stacked against you.  And, in some ways, you’re right.  But laws have been enacted to level the deck and put more power on your side.

If you think of classic games of chicken, rule #1 in all of them is not to be the first to back down.  For example, there is the highly dangerous game of chicken people play with cars.[6]  Each person faces their car towards the other person’s car and begins driving towards a head-on collision.  The reality is that both sides know they don’t want to hit head-on and risk serious injury or death.  The key to the game is just to force the other driver to turn away first – in other words, be the chicken who backs down.

The example above shows you just how stupid this Game of Chicken is.  And it is no less stupid when a school district plays it with your child.  Again, a life is at risk – your child’s life and education.

You may be the type of person who doesn’t have the stomach to fight so hard.  But, always remember, this is for your child.  Would you jump in front of a car and push your child to the side of the road to save his/her life?  Of course you would.  So, if you’re willing to risk death to save your child, you need to have the same level of spunk when dealing with the school district.  On the plus side, you are not likely to risk injury or death sitting in a school meeting room.

Also, don’t feel a sense of guilt if you know you aren’t the kind of person who can fight like that.  Not everyone is.  I didn’t realize I was until several years into my legal career when I had to fight like crazy for my client.  After that, I knew I was the kind of person who could put up one hell of a fight, but I also realized that not everyone was cut out for that.

If you are not cut out for the big fight, you should consider hiring a professional – an advocate, an attorney, or an expert in special education.  This will involve some money, but in some cases you can get that money back.[7]  But a professional will know all the tricks in the Game of Chicken and is well-trained in the law and methods of advocacy to help you.  A professional will not back down.

2.  Know The Rules.

Read, read, read.  I realize that at a very stressful time, it is difficult to concentrate enough to read complex laws and information (one article I read had about 30 tips on what to do in IEP meetings).  But the better informed you are, the better you will do in the school district’s Game of Chicken.  You will be a better advocate for your child.

Imagine playing the game of Monopoly, but not knowing the rules.  You can probably guess that you’re supposed to roll the dice and move your piece around the board.  But what then?  Why are all these street names on the board?  Why do they have a dollar figure on them?  Why are there sets of the street names with the same color?  Why is there a jail?  How do I win this game?

You see how difficult it is to play and win the game of Monopoly not knowing the rules.  The same applies to special education and each step in the process without knowing your rights or the rules.  If you don’t know the rules in this Game of Chicken, the school district will win every time and your child will lose.

Knowledge is power and that is no less true here.  If you don’t have the time or ability to learn your rights on your own, hire a professional.  That is their job.

Even if you don’t hire a professional, don’t walk into that meeting without knowing the rules of the game.

3.  Focus on the Goal.

Like all sports and games, there are intermediate goals and ultimate goals.  For example in football, the intermediate goal is to get the football across the goal line or kick it through the uprights to get some points.  The ultimate goal in football is to have the most points when time runs out so you win the game.

The same holds true for the special education process for your child.  There are intermediate goals – get an evaluation; get a diagnosis; get an IEP plan; and have the school execute the IEP plan properly.[8]  The ultimate goal is to get your child a free and appropriate public education (FAPE).[9]

You need to focus on the intermediate goal that your child needs right now (or for the upcoming meeting).  That focus needs to clearly define where you are in the process for your child, what outcome do you need from this step, and how will this step help you in the next step.  Again, reading and knowledge will help you focus.

You also need to avoid distractions.  One distraction may be what I call “shooting the messenger”.  Since our daily contact in our student’s education is his/her teacher(s), you may blame one or more of those teachers.  It is a natural reaction, but it is a distraction.  Often, the teachers are not involved in the Game of Chicken.  Most teachers are well-meaning and truly want the best for your child.  There are always some bad apples in the bunch, but my experience has been mostly positive with the teachers.  It is the administrators and members of the school board that are the problem, because they are the bean counters – the ones who watch the budget and where money is spent in the district, especially for special needs.

So your focus needs to be not only on the goal, but also in who your opponent truly is in the Game of Chicken.   Part of that focus may be to learn who those people are – it could be the school principal, it could be school board members, it could be the school psychologist or therapist, or it could be the superintendent of schools.  It will depend on your individual school district and how it works.

Once you have your focus, you can stare straight into the eyes of your opponent and win the Game of Chicken.  You will be empowered by knowing that the school district will HAVE to blink first, as long as you follow the above 3 tips.

Best of luck to you and to your children!  My wish is that all parents of special needs kids who need some help in education win the Game of Chicken and those kids ultimately win the game of life!

 


[1] I try not to use the prefix “dis” for that word, because it doesn’t accurately reflect the truth about our kids or what is “normal”.

[2] Studies, like the one conducted in England (http://www.dailymail.co.uk/news/article-1079510/Children-broken-homes-times-likely-suffer-mental-troubles-says-Government-study.html), show that children from broken homes are more likely to have mental troubles, including behavioral problems.

[3] Individuals with Disabilities Education Act of 2004, 20 U.S.C. §1415(b)(1).

[4] See “Letter to Alice D. Parker,” Wrightslaw.com reprinted from U.S. Department of Education, Office of Special Education Programs, http://www.wrightslaw.com/info/test.eval.choice.osep.htm.

[5] Tom Petty, “I Won’t Back Down,” © Warner/Chappell Music, Inc., EMI Music Publishing.

[6] DO NOT EVER PLAY THE GAME OF CHICKEN WITH YOUR CAR!  This is only a stunt that is done in movies by professionals.

[7] 20 U.S.C. §1415(i)(3)(B)(i) and Fed.R.Civ.P. Rule 11.

[8] These are just a few goals.  There are more not listed here.

[9] FAPE or “free appropriate public education” refers to several laws that interact with each other, but the most important is Section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. §794.  See http://www2.ed.gov/about/offices/list/ocr/docs/edlite-FAPE504.html for more information.