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

 


What Everyone Should Know About Special Education Funding

There has been a rush to judgment lately, by those without disabled children and those without children at all, that the increase in costs for special education is the fault of the parents of disabled children demanding too many services for their children.  Aside from the natural anger towards the attitude that disabled children don’t deserve an equal opportunity at education, I believe that there is a lot of misinformation and confusion on how special education is actually funded and what causes the costs to exceed school budgets.  Hopefully this brief blog post will clear up the misunderstanding and expose the realities about special education funding.

Where do schools get the funds for special education?

While there is some variation from state to state, most states get some of their funding through state and/or property taxes.  However, that is not the source of the majority of funding.  Believe it or not, a majority of the funding comes from the federal government (good ol’ Uncle Sam) through the U.S. Department of Education.  From the mandate of IDEA (Individuals with Disabilities Education Act) and other federal legislation, the federal government must provide funding to states that set up programs for special education of disabled students.

So, even though some of your local taxes do go to help local disabled children, it is a very small part because those taxes are actually part of the general education fund.  Only a portion of that is broken away for special education (if any at all).

And, yes, I agree, it is still “your tax money” that goes to the IRS that ultimately funds special education and the USDOE, but that is where we get to whether the money is wisely distributed, spent or not.

How are state funds distributed for special education?

The federal laws that fund special education on the state level require that states set up special education programming in the schools.  If the states comply, they get funds.  If they don’t, they don’t get funds.  Thus, there is a HUGE motivation for states to set up such educational programs and (to my knowledge) all of them have complied (even D.C., the US Virgin Islands, Puerto Rico, etc.)

It gets tricky on how the states distribute that money once received from the feds.  Some states distribute it evenly across their school districts, regardless of whether there are even special needs students in those districts.  Some states distribute the money based on population models.  Some states distribute it based on economic models, where the lower income districts get more money.  None of these methods accurately track the proportion of disabled students in each district.

Pennsylvania recently passed legislation which will distribute these funds proportionately based on the number of special education students in each district.  In other words, the funds will be “tied” to the special needs kids in each district.  This is a much more accurate and targeted use of those funds and should be modeled by other states.

How do schools spend the special education funds?

Once the states distribute the funds to the school districts, it gets even trickier on how those funds are spent.  Theoretically, those funds should only be spent on special education services and equipment.  They are targeted to support the special education kids in those schools.  Unfortunately, this is not always how it works in reality.

Some schools and school districts have been caught taking special education funds and putting them into the general education fund.  Big deal, you ask?  Well, think of it this way.  The schools that do this spend the money on extracurricular activities (for example, new football uniforms or equipment) when they should be paying for teaching aides, occupational therapy, physical disability modifications, etc.  Essentially, special ed kids are missing out on their education so the cheerleaders can have new pom poms.

Now, I don’t mean to sound crass and I do appreciate extracurricular activities, but take a closer look at that word – extracurricular.  Emphasize the “extra” part.  That means it is something beyond the basic curriculum.  Perhaps those activities should be privately funded, but certainly should not come out of the special education funds that have been hijacked into the general education fund.

Still, there is a far worse culprit for how special education funds are wasted.

Why is special education always causing the schools to go over budget?

AHA!  The answer to this is definitely NOT parents of disabled children seeking services for their kids.  In fact, if schools appropriately provided services to disabled children without unreasonable hesitation, the federal funds for special education might never be used up in a given academic year.  WHOA, TJ, this is not what we’ve been told.  I repeat, AHA!

Unfortunately, school districts have developed a mentality that is counter-intuitive to educating disabled children.  They view the request for special services to be an annoyance and meddling in their budgets.  They do everything they can do create a negative PR campaign about how special education is destroying their budgets and they can’t afford all these special services.

BALONEY! (or Bologna, as its properly spelled)

School district administrators, who rarely understand the federal mandate to provide an equal education opportunity to disabled children (i.e. THE LAW), make every effort to block special education services.  They hire attorneys who bill at astronomical hourly rates to fight these special education services.   These attorneys are not only making a mint off of representing school districts, they are providing training on how to fight special education battles.

Take a guess the source of funds to pay the school district attorneys?  Yep, that’s right, the federal special education funds.  And if that runs out, they take from the general education funds.  Thus, logically . . . wait for it . . . YOUR TAX DOLLARS pay for the school districts and their attorneys to fight against providing special education to disabled children.  YOUR TAX DOLLARS are making school district attorneys very wealthy.  VERY wealthy indeed.

Is that really how you want your tax dollars spent?  Wouldn’t it be smarter to spend the money on actual special education and not have any more tax hikes or complaints that special education is causing school budgets to explode?

I think so.  What do you think?


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.