Bring Back Some “Old School” Education

There is a common belief among the education community that education theory is evolving.  Ph.D.s and school administrators keep thinking up new ways to ‘improve’ our education system, for example ‘common core’ and ‘standardized testing’.  Problem with that theory is we are graduating more children from the K-12 system now who do not have the basic skill set to get a job, live on their own, or function in the post-secondary education environment.

I have a thought about that: we have abandoned some of the tried-and-true methods that worked in the 50s, 60s, and 70s for the sake of ‘experimenting’ with our children’s education.  My suggestion is to resurrect some of those ‘old school’ methodologies.  Here are some techniques that studies have proven to be effective:

1. Bring back music and the arts into our school systems as mandatory courses

Studies have repeatedly shown that music and art trigger portions of the brain that ‘core subjects’ do not and help the brain process other subjects better, for example math.

One study showed that listening to music reduces distraction when doing schoolwork.

“We seem to have two attention systems: a conscious one that enables us to direct our focus towards things we know we want to concentrate on and an unconscious one that shifts attention towards anything our senses pick up that might be significant. The unconscious one is simpler, more fundamental, and linked to emotional processing rather than higher reasoning. It also operates faster.”

“Music is a very useful tool in such situations. It provides non-invasive noise and pleasurable feelings, to effectively neutralise the unconscious attention system’s ability to distract us.”

Other studies have concluded the same, indicating that our ability to concentrate during studying is enhanced by music.

The same is true with art, but for different reasons.

“Almost as soon as motor skills are developed, children communicate through artistic expression. The arts challenge us with different points of view, compel us to empathize with “others,” and give us the opportunity to reflect on the human condition. Empirical evidence supports these claims: Among adults, arts participation is related to behaviors that contribute to the health of civil society, such as increased civic engagement, greater social tolerance, and reductions in other-regarding behavior. Yet, while we recognize art’s transformative impacts, its place in K-12 education has become increasingly tenuous.”

“We find that a substantial increase in arts educational experiences has remarkable impacts on students’ academic, social, and emotional outcomes.”

2.  Return vocational training to K-12 education

An article in Forbes magazine a few years ago observed:

“Throughout most of U.S. history, American high school students were routinely taught vocational and job-ready skills along with the three Rs: reading, writing and arithmetic.”

“[T]he focus shifted to preparing all students for college, and college prep is still the center of the U.S. high school curriculum.”

“Not everyone is good at math, biology, history and other traditional subjects that characterize college-level work. Not everyone is fascinated by Greek mythology, or enamored with Victorian literature, or enraptured by classical music. Some students are mechanical; others are artistic. Some focus best in a lecture hall or classroom; still others learn best by doing, and would thrive in the studio, workshop or shop floor.”

“The demise of vocational education at the high school level has bred a skills shortage in manufacturing today, and with it a wealth of career opportunities for both under-employed college grads and high school students looking for direct pathways to interesting, lucrative careers.”

The reality for most school-age children is that they will only be exposed to college-centered curriculum in public school and those who don’t have that interest will suffer.  It was exacerbated when President Obama “called for every American to pursue some form of education beyond high school ” during an address to a joint session of Congress in 2009.

However, it is well-established that not every kid should or can afford to go to college.  What is perhaps worse is that the drive for every child to go to college has resulted in student loan debt skyrocketing and nearly impossible to elminate due to a lack of jobs in those sectors.

“Now that the Department of Education has made this data available, it appears that, in fact, the average student loan borrower takes longer than ten years to repay his/her loans.”

“Because more than half of defaults [on student loans] occur outside the [time] window covered by current federal default statistics, overall default rates are much higher than previously thought.”

“These data suggest that whether a degree is completed, and what type of degree is completed, may be more important factors related to the increasing default rate than the amount students borrow.”

The data is pretty clear – jobs that graduates get can’t keep up with repayments of student loans.  This argues in favor of a trade education, where the student debt is likely to be much lower, but job security is much higher.

3.  Teach cursive handwriting

The benefits of learning cursive go way beyond the ability to sign checks.  Article after article touts this curriculum, but schools have abandoned it because it is the “computer age”.  That’s not an excuse.

A New York Times article from 2013 discussed how learning cursive stimulates the brain.

“Putting pen to paper stimulates the brain like nothing else, even in this age of e-mails, texts and tweets.”

“As a result, the physical act of writing in cursive leads to increased comprehension and participation.”

“Regardless of the age we are in or the technological resources at one’s disposal, success is measured by thought formation, and the speed and efficiency in which it is communicated. Because of this, students need a variety of technologies, including cursive handwriting, to succeed.”

William Klemm, Ph.D., Senior Professor of Neuroscience at Texas A&M University, offers numerous biological and psychological benefits of learning cursive.

Still another author provides 10 reasons to learn cursive, not least of which are:

  • Improved neural connections
  • Improved fine motor skills
  • Increased retention
  • Ease of learning – “Cursive is of particular value to children with learning challenges such as dyslexia, dysgraphia, and difficulties with attention.”

Conclusion

While this may not cure all of our education woes, it certainly is worth trying.  We are failing our kids right now.  Why not go back to methods that worked in the past instead of experimenting with the new?  It is my opinion if we accept the basic premises that (a) not every child is cut out for college; (b) that providing alternative skill set training expands the opportunities for our kids; and (c) returning to proven-successful teaching methodologies, such as inclusion of music and the arts and teaching cursive, will improve their academic progress and cognitive abilities, then we are likely to see a brighter future for our children.

 

5 Things Wrong With Public Education Today

Here are my thoughts and observations about what is wrong with our public education system today:

1.  Too much is spent on school administrators and not enough is spent on teachers

2.  Too much is spent on extracurricular activies, particularly sports, and not enough is spent on arts, music, home economics, and trade (auto shop, mechanics, wood shop, etc.) classes

3.  Too much time is spent on preparing students for standardized testing and not enough time is spent on teaching students how to learn independently

4.  Too much is spent on fighting expensive legal battles and not enough is spent on providing special education and related services

5.  Too much is spent on changing curriculum (for example, common core, Pearson) and not enough is spent on allowing teachers to apply their ‘on the ground’ knowledge of their students and subject matter expertise

And here is a bonus one:

BONUS:  Too much is spent on internal fortress building and not enough is spent on involving the community in our education system, such as involving parents and local businesses in the process

Just my opinion.

 

USDOE Finds NJDOE Non-Compliant With IDEA 45 Day Rule

Well, well, well.  Seems that someone is taking notice that the NJDOE has been noncompliant with IDEA’s 45 Day Rule (which we’ve written about extensively in the past):

On May 6, 2019, the US Department of Education’s Office of Special Education and Rehabilitative Services (“OSERS”) issued a notice of noncompliance to the NJDOE Commissioner of Education that it is in violation of IDEA’s 45 Day Rule and requires some fixes to the program.

Here is the USDOE’s letter: 190506osers

This will add some fuel to our Class Action case.

Stay tuned!

 

10 Tips For Hiring A Special Education Lawyer

When parents disagree with their child’s school about special education or services the student with a disability is receiving, they might consider hiring a lawyer.  This may be the first time they’ve ever needed or interacted with an attorney, so they may be overwhelmed and unsure how to decide whether to employ his/her services.

I’ve tried to simplify the process in the following 10 tips for hiring a special education lawyer:

1. Don’t tell your whole story during the first meeting or phone call.

Most special education lawyers have a pretty good idea why you are calling them and have dealt with situations like yours.  Don’t expect legal advice because he/she needs to learn your case and an initial meeting is usually not thorough enough to do that.  Plus, lawyers like to do legal research before they give advice or opinions.  We often want to make sure we know the current law on an issue.  All this goes hand-in-hand with . . .

2. Remember that time = $$$$.

Abraham Lincoln famously said, “A lawyer’s time and advice are his stock in trade.” In other words, that is how lawyers get paid.  Our knowledge and expertise in legal matters is the value we bring to the table.  The fact that you are calling a lawyer indicates you can’t do it without help from someone who understands the legal system.  Plus, lawyers have cases other than yours and they will give equal priority to theirs as they will to yours.

3. Shop Around.

I recommend you talk to 2 or 3 lawyers before hiring one of them.  Not every lawyer is the same.  Ask yourself what you want your lawyer to be – aggressive? inexpensive? passionate? reasonable? Are you going to take the lead in helping your child or do you want the lawyer to take charge?  Most importantly, not every lawyer bills fees the same way.  It’s always good to compare among choices.

One of the ways to compare is to . . .

4. Research the lawyer.

You’re probably not sure how to do that.  There are websites that rate lawyers – Avvo; LinkedIn; Facebook; Yelp – but don’t put a ton of stock in those because lawyers’ friends may be posting the reviews.  Look at the lawyer’s credentials – where they went to law school; how long have they been admitted to the bar; how long has he/she been doing special education legal work; what is his/her reputation in the community or with peers; etc.  Much of this information you can get on websites, but ask your friends.

Or when talking to a lawyer you’re thinking of hiring . . .

5. Ask about other special education cases he/she has handled.

Lawyers won’t (and shouldn’t) name names of other clients, but they can describe generally other special education cases they’ve handled and what types of disabilities their other clients’ children had.  Ask if they won the case or if it settled; ask what the main issue / problem was; ask how hard the battle with the school district was; ask the highest court they’ve taken a case to; and ask if they have ever dealt with a case similar to yours.

And because special education law is becoming more about litigation (lawsuits), ask . . .

6. Does the lawyer know about both special education law and litigation?

School districts are fighting harder than ever in special education disputes.  In fact, recently a colleague (who is a trial attorney, but not a special education lawyer) commented that he was shocked at how difficult the school district’s attorney was in a case before referring it to me.  Yes, it is going to be a hard fight and you need a lawyer who understands legal procedure, evidence, examining witnesses, legal precedent, and how to argue persuasively – on top of knowing special education law.

7. Do you like him/her?

This sounds petty, but it’s not.  You need to feel comfortable with your lawyer; not as a friend, but as someone who understands you and what you want for your child.  This is a business relationship and just like you want to get along with your plumber, your mechanic, your doctor . . . you want to make sure this relationship is solid.

To make sure that this business relationship goes well . . .

8. Get a contract.

In legal terms, this is a fee agreement.  Don’t be afraid to negotiate.  Do you walk into a car dealership and just say, “OK, I’ll pay that price for this car with nothing customized to my needs”???  Of course not (or at least you shouldn’t).  You also shouldn’t just accept what the lawyer says for the agreement.  A fee agreement (also called a retainer agreement) is your contract with your lawyer.  You want to make sure that (a) the services are what you want, no more, no less; (b) you understand how fees will be charged and how much; (c) in special education cases, you may be able to recover those fees and if you do, how will they be reimbursed to you; (d) how long the contract shall last; (e) what happens if you fire the lawyer or change lawyers; and (f) what happens if you break the contract.  Expect the best, but plan for the worst.

9. Don’t ask the lawyer to work for free.

First, go re-read #2 above.  You may have a great case, but you are asking a lawyer to use part of his/her workday to help you with your case.  Just like an electrician who charges for the time he/she is at your house to fix the wiring, the lawyer needs to be paid for the time spent working on your case.  If you were charged with a crime and needed a criminal defense lawyer, you’d probably find the money to pay him/her to represent you.  The same should apply for a special education lawyer who is representing you and your child with a disability.  Lawyers have bills, need food, clothes, and some pay college tuition – like you.  If you have a job, you expect your employer to pay you.  You are your lawyer’s employer.

10. Your lawyer should be passionate about special education.

Notice I didn’t end that sentence with “law”.  Your lawyer should understand that the ultimate goal is to help with your child’s education.  Are they passionate about helping kids with disabilities?  Does he/she have a child with a disability? Ask how and why the attorney got into special education law.

You want to hire a lawyer who is passionate about special education so he/she will be passionate and understanding about your case and your child.  That way, you can work as a team to help your child.

I hope these tips help the daunting task of hiring a special education lawyer.

 

The Appropriate Use of Assistive Technology for Students – Antonia Guccione, MA, MS [Guest Blog Post]

Discerning how, when, and why students should access Assistive Technology to support learning involves many levels of decision making.  It all starts with the IEP, the student’s present levels of performance, his educational needs, and the impact those needs have on learning. Thank goodness there is help! The Wisconsin Assistive Technology Initiative provides a series of tools for educators and parents. The WATI Assistive Technology Consideration Guide is a great place to start if you suspect that there are tools that are necessary to support a student’s learning.

For example, if a student has an issue with writing, it can seriously impact that student’s ability to function in the classroom and do grade level work. For our purposes, we will assume an upper elementary age male child and begin our assessment and decision making there.  He may not be able to express thoughts, opinions, or ideas on paper.  How will he form complete sentences and/or organized paragraphs?  How can Assistive Technology help him?

Discerning how, when, and why students should access Assistive Technology to support learning involves many levels of decision making.  It all starts with the IEP, the student’s present levels of performance, his educational needs, and the impact those needs have on learning. Thank goodness there is help! The Wisconsin Assistive Technology Initiative provides a series of tools for educators and parents. The WATI Assistive Technology Consideration Guide is a great place to start if you suspect that there are tools that are necessary to support a student’s learning.

http://www.wati.org/wp-content/uploads/2017/10/WATI-Assessment.pdf [PDF file]

THE WATI

Enter the WATI Assistive Technology Consideration Guide. First, the team must agree on the impact of this issue.  While many are possible, let’s assume that the major impact for this student is his ability to do grade level work in the classroom and express his thoughts on paper in an organized paragraph.  The question becomes whether there is currently assistive technology- either devices, tools, hardware, or software that might help address this need?

Referring to the Assistive Technology Continuum, there are Low Tech, Mid Tech, and High-Tech tools to consider. Have any been tried?  Is there data to support the trials?  Possible Low-Tech tools include specialized pens, raised paper, highlighters, post -its, and slanted surfaces. Mid Tech Tools include tape recorders, spell checkers and dictionaries.  High Tech tools include word prediction software, word banks, and word processors.

Finally, would the use of these assistive technology tools support the student in performing this skill more easily in the least restrictive environment? If the answer is yes, it is time to consult with the IEP team and document this need, its impact, and interventions that might be helpful.

https://adayinourshoes.co m/wp-content/uploads/2015/09/WATI-Assessing-Students-Needs-for-Assistive-Technology.pdf [PDF file]

Based on lack of progress on IEP goals, the Committee on Special Education must consider a student’s need for assistive technology devices and/or services, as well as possible modifications and accommodations.  If a student needs such devices and/or services, the appropriate sections of the IEP must specify the:

  • nature of the assistive technology to be provided; 
  • services the student needs to use the assistive technology device; 
  • frequency, and duration of such services; 
  • location where the assistive technology devices and/or services will be provided; and 
  • whether such a device is required to be used in the student’s home or another setting in order for the student to receive a free appropriate public education.

http://www.p12.nysed.gov/specialed/publications/iepguidance/present.htm

GOALS

Goals must be written accordingly, and I recommend using the concept of a SMART Goal.  A specific goal which is measurable, attainable, realistic, and timely has a greater chance of being accomplished than a general goal.

https://east.madison.k12.wi.us/files/east/Smart%20Goals%20Information%20CC%2011_0.pdf [PDF file]

Here is an example of an objective taken directly from an AT-Resource Guide for written communication which utilizes Assistive Technology:

Goal: Jon will use an electronic graphic organizer to write an opening topic, a closing, and three supporting detail sentences to construct a five-sentence paragraph, by the end of the first semester.

Objective: Given five sentences in an electronic graphic organizer, Jon will identify and arrange the opening topic, the closing, and three supporting detail sentences to create a paragraph, by the end of the first six weeks of school.

https://www.ocali.org/up_doc/AT_Resource_Guide_6.pdf [PDF file]

IN THE IEP

Another resource which offers support to parents in understanding what Assistive Technology is and how to get it into a student’s IEP is noted below:

https://adayinourshoes.com/assistive-technology/

Once the tools have been obtained, how does one manage the Assistive Technology?  Who trains the teachers and parents? Who trains the student?  But that is a whole other discussion!

Even if the present levels of performance indicate a student who can participate in a discussion, that doesn’t mean he can write about it. A basic understanding of texts and current events is not the issue. However, ask him to summarize that information in a paragraph and the sky falls down.  On the IEP, present levels of performance are recorded, and appropriate sources of data have been discussed and administered.  These have included both formal and informal assessments, with work samples, and data charts to show progress or lack of progress over time. Are there modifications and accommodations that have been incorporated? Have these interventions resulted in significant progress or is this student still having difficulty responding to a writing prompt.

FINAL NOTES

In conclusion, Assistive Technology provides many tools to support learning and can result in a positive outcome.  It is a timely process, but one worth pursuing. Better to know what works sooner rather than later.  Assess the student’s needs, document the impact on learning, and then choose the appropriate tool to support learning in the least restrictive environment.  Keep accurate data to demonstrate progress.

If you suspect your child could benefit from assistive technology, reach out to the professionals involved in his education.  In addition, access the sites documented in this article.  I’ve only presented one need, and that is for writing. I haven’t even touched on communication, mobility, motor aspects of writing, reading, learning and studying, math, recreation, or activities of daily living, vision, hearing, and language processing. Understand that the array of Assistive Technology Tools is vast.  Following a process to obtain these tools may be involved, but it can result in access to tools that can help this child for life. 


Antonia Guccione, MA; MS

Antonia is a consultant, educator, and author with over forty years’ experience working with students of all ages, strengths, and needs.

Which Teaching Style is “Best”? – Antonia Guccione, MA, MS [Guest Blog Post]

In the districts in which I taught as a Special Educator as well as in the districts where my own children attended school, parents would always advocate for certain teachers; “the good ones” —the ones whom everyone respected and the ones who always got good results.  It’s hard to say whether there is a correlation between a student’s learning style and certain teachers. Is there one type of teacher that does well with all students?  Probably not, but if you are in the business of trying to find the best “fit” for your child, there are some things to consider.

Teacher’s Individual Style

First think about the teacher’s individual style. In the book Classroom Discipline and Management, Clifford Edwards discusses three primary teaching styles. Everyone would like to be or have the Democratic Teacher.  Children develop a sense of belonging and have a stake in the classroom. Firm guidance is being provided with each step and children are involved in making decisions.  In addition, children are taking responsibility for their own work and are involved in cooperative learning experiences where each can explore, discover, and choose his or her own way.  All the while, the teacher is firm, yet kind. This is the ideal. The results are positive; children develop a sense of belonging and have a stake in the classroom.

However, there are teachers who favor more of an autocratic style.  They tend to force their will on students rather than motivate them.  There may be little warmth or humor in interactions and these teachers refuse to tolerate any deviation from rules.  In the worst case, they exact punishment for those who refuse to conform.  Is it necessary sometimes to be firm?  Of course.  Are there consequences for improper behavior? Yes, definitely. Teachers must use their judgement as each situation differs. However, a daily diet of this autocratic style may result in students who are hostile to demands, commands, and reprimands. 

Then there are teachers who are too permissive and promote a classroom atmosphere which is chaotic and not conducive to either teaching or learning. They underestimate the importance of rules and do not follow through on consequences.   Sometimes a child needs some room or a special set of circumstances.  Again, teachers must use their judgment.  On an ongoing basis though, students may feel empowered to challenge rules and expectations at every turn.

The Child’s Individual Learning Style

When thinking about the best fit for your child, another variable to consider is his or her individual learning style.  You, as parents, know your child best. By the time children have completed third grade you are probably familiar with their style, be it visual, auditory, kinesthetic, or geared to reading and writing.   You know what kinds of assignments appeal to them and which ones are problematic. 

https://teach.com/what/teachers-know/learning-styles/ .

In addition, the theory of multiple intelligences can often be helpful in understanding the needs of your child. There are seven basic styles.  Which does your child favor?

  • Linguistic intelligence (“word smart”)
  • Logical-mathematical intelligence (“number/reasoning smart”)
  • Spatial intelligence (“picture smart”)
  • Bodily-Kinesthetic intelligence (“body smart”)
  • Musical intelligence (“music smart”)
  • Interpersonal intelligence (“people smart”)
  • Intrapersonal intelligence (“self-smart”)
  • Naturalist intelligence (“nature smart”)

Teaching Environment

Classroom management is a topic onto itself. Behavior does not happen in a vacuum. Many a student has been coaxed into learning by an engaging lesson which peaks his or her curiosity. Teachers need to excel at their craft.  According to James Stronge, effective teachers excel in the following: 

  • Professional knowledge.
  • Instructional planning.
  • Instructional delivery.
  • Assessment
  • Learning environment.
  • Professionalism.

It is a teacher’s primary responsibility to devise engaging lessons in line with standards and assessments as well as a student’s learning style.

In the end, I think good teachers will devise a combination of the three basic types that are in the literature.  While the ideal may be the democratic teacher, sometimes a more permissive attitude is needed; other times some firmness is required. 

Action Items

If you find that your child is thriving, reach out and thank that teacher! However, if you find that your child is developing coping behaviors in school which are not to your liking, dig below the surface and investigate the teaching style, the classroom atmosphere, and the curriculum and assignments being presented.  Think about your child’s type of intelligence and learning style. Consult with the professionals to engage their help if necessary. Somewhere in there is a solution to promote an atmosphere conducive to teaching and learning and a happy and engaged child. 

Edwards, Clifford H,  Classroom Discipline and Management,.  John Wiley & Sons, Hoboken, N.J.  2000.

Stronge, James H, Qualities of Effective Teachers,  Alexandria, Va., ASCD, 2002.

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.

 

Public Schools Have Made Your Child the Enemy and You, the Taxpayer, Are Funding Their Battle – Part II (A Case Study)

An Open Letter to the Williamson County (TN) School Board and Williamson County (TN) Commission from a Concerned Parent . . .

[Reprinted with permission.  Names withheld to protect the identity of the child.]

 

Dear County Commissioners and School Board Members,

I am writing regarding a resolution that both the Williamson County School Board and the County Commission are being asked to approve. The resolution includes amending the 2017-2018 general purchase school budget so that $575,000 can be used for legal fees for special education due process cases The resolution is attached. I am asking the School Board and the County Commission to ask two important questions before voting on this resolution:

1) How many special education due process cases is this $575,000 in legal fees being used for?

2) What was the total amount of money that these parents were asking Williamson County Schools to pay in their due process claim(s)?

If the $575,000 in legal fees surpasses the amount that Williamson County Schools was asked to pay the parents in the first place, as a taxpayer, I encourage you to ask district leaders additional questions.

I am a parent of one of the current special education due process cases against Williamson County Schools and because of this know information that you may not be aware of. Over the years of raising four children there have been times where one of them was struggling but wasn’t ready to talk about it. In some of those instances I remember encouraging them to share with me and telling them that I can’t help what I don’t know. I too believe that people who are elected to serve the community can’t help what they don’t know and it is with that in mind that I write to you today.

In the last five years Williamson County Schools used $570,000 of the taxpayer’s money to pay The Law Office of Melinda Jacobs to fight special education due process cases. As a taxpayer, I am alarmed at the amount of money I see Williamson County Schools spending in our one small claim. I believe that Williamson County Schools is easily on their way to spend more in legal fees with The Law Office of Melinda Jacobs and their expert witnesses to fight our claim prior to the first day of trial than the amount of money I am asking to be reimbursed. My claim is only for the special education services I paid for and not a penny more. Here are just a few of many examples that make me concerned about how tax dollars are being spent.

There is a large amount of taxpayer money being spent on unnecessary depositions. The Law Office of Melinda Jacobs is spending more days doing depositions than the total number of days allotted for our entire trial. They are deposing at least 21 of our people and are flying to New York, California and Missouri to depose providers that only spent a few hours with my child. Some of the people they are deposing didn’t even provide services during the time period of this due process claim so are irrelevant to the case.

There is a large amount of taxpayer money being spent on unnecessary expert witnesses. Williamson County Schools hired two expert witnesses which will likely cost the taxpayers tens of thousands of dollars. They hired David Rostetter to observe my son in his private school in April of 2018 even though our case is for the 2015/2016 and 2016/2017 school years. If Mike Looney and Carol Hendlmyer expect you to approve this they should have to explain to you how an observation in April of 2018 is relevant and necessary especially when there were already reports from a Williamson County School psychologist and a Williamson County School special education teacher who observed my child in this private school when developing the 2015/2016 IEP.

I encourage you to ask Mike Looney and Carol Hendlmyer how much money Williamson County Schools have paid their expert David Rostetter in the past and how much they anticipate paying him in our case and compare that figure alone to the amount of our claim. I think you will find it alarming. In addition, you might want to ask if there are any concerns with David Rostetter’s ability to conduct an observation being that he has been legally blind since the age of 12.

There is a large amount of taxpayer money being spent on other unnecessary attorney fees. Williamson County Schools paid for THREE attorneys from The Law Office of Melinda Jacobs as well as several school employees to go to a mediation for our case when they had zero intentions of settling the case that day. Did the taxpayers really need to pay for three lawyers and several Williamson County School employees that day when they already knew that they were not going to even attempt to settle the case

In addition, I would encourage the School Board or the County Commission to speak to Melinda Jacobs or another attorney special education attorney about the merits of the special education due process cases before approving this money.

In closing, over the last five years Williamson County Schools used $570,000 of taxpayer’s money (126 pages of invoices) to pay The Law Office of Melinda Jacobs to fight special education due process cases. More money may have been paid to other law firms as well. Now, they are asking you, us, for $575,000 more.

Last month Williamson County taxpayers, 8,155 of them, voted for a sales tax increase to fund Williamson County Schools. I would have to think that a large number of them would not have voted the way they did if they were aware of the amount of money that is being wasted on special education due process legal fees. Mike Looney and Carol Hendlmyer have not been good stewards of taxpayer dollars in regards to these legal fees and your oversight is needed to avoid the mistakes that other districts have made. Take a look at the actions of another Tennessee county in the Deal v Hamilton County TN Bd of Ed (6th Cir 2004) where the district spent $2.3 million to fight and lose a special education due process case that they could have settled for $150,000:

http://www.chattanoogan.com/2005/3/14/63675/Atlanta-Law-Firm-Charges-To-County.aspx

At one point, Melinda Jacobs, the attorney Williamson County Schools is using against us, worked for The Weatherly Law Firm who was the law firm for the school district in this case. David Rostetter, the expert witness Williamson County Schools is using against us was one of the expert witnesses in this case and was paid $74,632.47 for his testimony. Melinda Jacobs who has practiced in Knoxville since 1999 opened up a second location here in Franklin on August 15, 2016.

How much more of Williamson County taxpayer’s money is she expecting to make this second location worth her while? Would her other clients pay to put her up in expensive hotels like the Franklin Marriott as Williamson County Schools does? Again, your oversight is needed.

Who is on the IEP Team?

Perhaps one of the most confusing parts of special education law for parents (and some schools) is who is on the IEP team.  There are both “mandatory” members of the IEP team as well as “permissive” members.  IDEA makes this very clear.

Mandatory Members of the IEP Team

There are five (5) mandatory members of the IEP team set forth in IDEA.  They are (in order as the statute lists them):

  1. The parent(s);
  2. At least one regular education teacher who interacts with the child in a general education setting;
  3. At least one special education teacher or provider who interacts with the child;
  4. A representative of the school district (“local educational agency”) who meets certain requirements (see below); and
  5. “an individual who can interpret the instructional implications of evaluation results” (who may be also #2-4).

20 U.S.C. §1414(d)(1)(B); 34 C.F.R. §300.321(a).

Before moving on to the permissive members, let me clarify some things about the mandatory members.  The word “and” is underlined above, because that means ALL five are required.  If Congress meant that only 3 or 4 of those persons were necessary, they would have used the term “or”.  Remember Conjunction Junction from School Kids Rock?

The Parent(s)

At least one parent must be present at an IEP meeting. If there are two parents, both are not required to be there – one can act for both.  But, notice the parent(s) are listed first.

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) . 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) (emphasis added.)

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) ; 34 C.F.R. §300.501(b)(1).

The LEA Representative

The representative of the school district can’t be just anyone.  Often the school will send a case manager or principal or other administration staff member as the representative, but such person might not meet the requirements of IDEA.

The LEA representative must be:

  • qualified to provide, or supervise the provision of, specially designed instruction to meet the unique needs of children with disabilities;
  • knowledgeable about the general education curriculum; and
  • knowledgeable about the availability of resources of the local educational agency (school district).

20 U.S.C. §1414(d)(1)(B)(iv); 34 C.F.R. §300.321(a)(4).

In other words, this person must have supervisory capabilities over special education curriculum and services, know the general education curriculum, and know the services available as well as placement options within the district.  If the person the school district sends to the IEP meeting is constantly having to check with someone else about whether the school district can provide such services, the wrong person is in the meeting.

The Evaluation Interpreter

While the fifth mandatory member is only stated as “an individual who can interpret the instructional implications of evaluation results”, IDEA is no more specific and doesn’t define who this is.

Typically, this person is the school psychologist because that person’s role is to translate evaluation reports into special education and services to be provided to meet the needs of the child.  Most parents don’t know how to interpret evaluation reports.  Heck, even some highly skilled teachers don’t know how either.

Make sure someone is in the meeting who can put testing results into actions and services for your child.

Permissive Members of the IEP Team

IDEA allows other persons to be on the IEP Team.  Specifically,

  • “at the discretion of the parent or the agency, other individuals who have knowledge or special expertise regarding the child, including related services personnel as appropriate”
  • “whenever appropriate, the child with a disability.”

These are “permissive” members because they are not required to be there and are only there if the other IEP team members think it is appropriate or necessary.

The first of these options has been interpreted to include “education advocates” for parents; social workers or therapists contracted by the school district; or, anyone else who might have valuable input into the formation of an IEP.  There is no restriction on the number of these individuals so long as they have the requisite knowledge about the child or services and it doesn’t bog down development of the IEP.

The second option is at the discretion of the parent(s).  Whether you bring your child to an IEP meeting is up to you and most agree that the child should only attend if (a) he/she is emotionally capable of hearing about areas where the boy or girl is struggling; and (b) he/she has valuable input to offer, such as when or where he/she is having difficulties (e.g. “I struggle in math class because of the classroom noise.”)

Is it a properly assembled IEP meeting?

The most important lesson of this article is for both parents and school districts to understand when an IEP meeting is properly constituted.  As stated above, all of the mandatory members must be present [especially the parent(s)].  Without all of the mandatory members present, the proposed IEP may either be improperly designed (because not all of the necessary input was received) or not implemented (because the district does not have the necessary resources) or both.  If there are no permissive members, the meeting can still go forward.

Parents have the motivation to make sure that an IEP meeting is properly assembled so their child receives a FAPE.  School districts have the motivation to ensure that the IEP cannot be challenged on these grounds.  All of this is intended to benefit the child with a disability.

So, if the law is followed on the IEP team, it is a win-win-win.