Wrightslaw: From Emotions to Advocacy
The Special Education Survival Guide by Pam Wright & Pete Wright
The Special Education Survival Guide by Pam Wright & Pete Wright
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Most phone calls to attorneys are triggered by a school crisis. The school may have advised the parent that they:
Parents of children with disabilities feel confused, guilty, frightened, frustrated, and helpless. When confronted with a crisis at school, the parents normal response is usually a big mistake.
cause parents to over-react or under-react. After you read this article,
youll have a different perspective on school problems. Youll
have a long-range plan. Youll be less likely to shoot yourself
in the foot!
The Last Straw
Every crisis is triggered by a precipitating event or last straw. Parents usually remember their last straw because it was emotionally significant. Perhaps the crisis forced the parent to face the reality of the childs problems. Instead of improving, the childs problems got worse.
At the onset of a crisis, parents feel overwhelmed. They dont know what to do. Time is running out. This creates a sense of urgency, and a crisis is born.
Feelings of Betrayal
the childs school career, most parents trust the advice and recommendations
they receive from school staff.
Expense and Control
The battles parents fight with their school districts are similar to the battles they fight with their managed care insurance plans. Good special education services are intensive, individualized and expensive. Like insurance companies, school districts try to limit access to costly services.
staff believe they are the experts in educating children.
School personnel may be threatened by strong, articulate parents who
are actively advocating for their children. How do schools deal with
perceived threats? Some schools try to limit parents ability to
advocate for their children. (For more on this subject, read articles
about school culture on this site.)
The Prevention Model of Special Education Advocacy
To Prevent Litigation, Prepare for Litigation
As a parent, your goals are to prevent problems when possible and to minimize the seriousness of the problems you cant prevent. The Prevention Model of Special Education Advocacy is based on the prepare for litigation approach to civil litigation.
The prepare for litigation approach is how attorneys prepare all types of civil litigation - medical malpractice, personal injury, divorce with equitable distribution, child custody, and breach of contract cases. When civil cases are prepared for trial, many settle. If you anticipate and prepare for problems with your school district, you are less likely to have a serious dispute.
In special education disputes, complicated legal issues are intensified by strong emotions on both sides. Anger, fear, betrayal and guilt (as in divorce) are coupled with battles between expert witnesses (as in medical malpractice cases).
Keys to Success: Preparation, Preparation, More Preparation!
Most parents do not need an attorney. The key to resolving special disputes is preparation, preparation and more preparation!
After an initial consultation in a personal injury case, the plaintiffs attorney does not make a financial settlement demand on the defendants insurance carrier, claims agent or attorney. Before taking any offensive action, plaintiffs counsel determines the facts and laws of liability and researches negligence and damages. After the case is fully prepared, the attorney fires the first shot across the opponents bow. Depending on appropriate tactics and strategies, this shot may be a settlement proposal letter to the insurance carrier or a lawsuit that is filed.
These are the normal steps in civil litigation, including special education litigation. The best way to settle a case and ensure a fair settlement is to prepare for trial. When these steps are followed, trials occur less often. If a trial is necessary, you have given yourself and your child the best chance for success.
In litigation, the outcome of a case is not based solely on the facts and the law. Assume that you witnessed an automobile accident. Assume that a television crew was on the spot and filmed the accident. Assume there were no personal injuries, no pain and suffering. Assume that property damage to the vehicle was exactly $25,000.00. What is settlement value of the case?
With these facts, including the television crew, the plaintiff will recover the full $25,000 four times out of five. But the plaintiff will not win five times out of five. The outcome of a litigated civil case is based on three variables:
Do you remember the litigation between Rodney King and the Los Angeles Police Department?
Rodney Kings cases included a criminal trial in state court about the police officers use of excessive force, a civil rights case in federal court regarding the violation of Kings civil rights, and a civil personal injury case against the City of Los Angeles and individual police officers. The key facts in all three cases were captured by a video camera. Despite this graphic evidence, the outcomes in Kings cases were very different.
First VariableQuality of the Attorneys
Is the school board attorney a skilled civil litigator who understands special education law and tests and measurements, has good cross-examination skills, and makes powerful opening and closing statements? Is this also true for the parents attorney?
If the quality of the attorneys is equal, this variable will be less important. The playing field remains reasonably level. If the degree of attorney expertise is unequal, there may be a weighing of up to one-third in favor of the more skilled attorney.
Second VariableLaw and Facts
In Rodney Kings cases, the facts captured on videotape remained the same. Although the legal issues in the first and second trials were similar, the trials had very different outcomes.
Facts are important. The law is important. Standing alone, neither will win a case. In litigation, both parties usually believe that the facts and the law are on their side. If the law and facts are on your side, this may give you an edge of up to one-third.
In Rodney Kings cases, both juries viewed the same videotape and heard essentially the same evidence. The first jury supported the police officers. The second jury supported Rodney King. What explains these different outcomes?
Third VariableIndividual Who Determines Outcome
Hidden factors are often more significant in outcome prediction than the law and the facts. Its not unusual for a judge, jury member, or hearing officer to unconsciously identify with or against a plaintiff, defendant, or attorney. An individuals mannerisms, personality, dress, and/or appearance may remind the Hearing Officer or judge of a mother, father, brother, sibling, spouse, or friend.
Sometimes, this association is negative. What will happen if you remind a Hearing Officer or judge of the person who successfully sued them? What will happen if the Hearing Officer or judge thinks that he or she has better things to do than hear a stupid case brought by whiney parents? What happens if your Hearing Officer or judge views his or her role as a gatekeeper and protector of public tax dollars?
The association may be positive. What will happen if the Hearing Officer or judge has a child, grandchild, niece, nephew or godchild with a disability, a child who is very similar to your child? What will happen if the Hearing Officer or judge understands your struggles, empathizes with you, and believes you are right?
Settlement Value and the Hazards of Litigation Rule
Lets re-examine our hypothetical $25,000 property damage case. I asked, What is settlement value of the case? In most jurisdictions, the plaintiff would win this case four times out of five, and recover the full $25,000. But at trial, the plaintiff will not win five times out of five. Why not? Because of the interplay between the three variables.
Settlement includes a concept called the Hazards of Litigation Rule. Cases that should be won are lost. Cases that should be lost are won. This is the hazard of litigation. In our property damage case, you should assume that the odds of losing because of these three variables are one out of five, i.e., 20%. This means that the quantifiable hazard of litigation is one-fifth of the normal verdict amount of $25,000, or $5,000. When you subtract this hazard of $5,000 from the normal verdict, you have settlement value of $20,000. (Other economic factors not discussed here include costs of discovery, witness fees, and legal fees.)
Your Goal: To Prevail Without Casualties
How is this relevant to your dispute with the school? Parents should not initiate a battle to secure appropriate special education services until you have a good chance of prevailing and can prevail without damaging your child.
Many parents say, But look at the damage they are doing to my child. This must stop immediately! I reply, To start a fight when you have no ammunition, your guns are unloaded, you have not assessed their weapons and location, and you dont know where the high ground is, is more damaging in the end.
Initiating a suicide charge up the enemys hill is foolhardy. Yet this is the course many parents take when they try to advocate for services. In most cases, children are stronger and more resilient than parents realize. If children know we believe in them, they can endure short-term pain to realize long-term benefit.
Managing a Crisis
hits! What should you do? For the first few days, DO NOTHING!
Your Long-range Planning
Use your energy to prepare. Focus on short-term solutions and long-range planning. Do your long-range planning first.
Begin a Program of Self-Study
You need to learn about the law, the nature of your childs disability, how your child learns, and how your child should be taught. Your program of self study includes several steps.
Join Special Education Organizations
special education organizations for a period of at least one year. These
organizations are excellent sources of information for parents of children
with all handicaps.
Learning Disabilities Association of America (LDAA), 4156 Library
Road, Pittsburgh, PA 15234. (412) 341-1515.
International Dyslexia Association (IDA),
8600 LaSalle Road, Suite 32, Chester Building, Baltimore MD 21286. (410)
296-0232. (Formerly the Orton Dyslexia Society, named after Dr. Samuel
Orton who helped develop the Orton-Gillingham multi-sensory method that
was used to remediate Pete Wright during the 1950s.)
and Adults with ADD/ADHD (ChADD), 8181 Professional Place, Suite
201, Landover, MD 20785. (301) 306-7070.
ARC (formerly the Association for Retarded Citizens), 500 E. Border
St., Suite 300, Arlington, TX 76010. (817) 261-6003.
Association for Persons with Severe Handicaps (TASH), 29 W. Susquehanna
Ave., Suite 210, Baltimore, MD 21204. (410) 828-8274.
United Cerebral Palsy Association, 1660 L Street, NW, Suite 700, Washington, DC 20036. (800) 872-5827. Web: http://www.ucpa.org/
Association for Down Syndrome (NADS), P.O. Box 4542, Oak Brook,
IL 60522-4542. (708) 325-9112.
Society of America, 7910 Woodmont Ave, Suite 300, Bethesda, MD 20814-3015.
(800) 3 AUTISM or (301) 657-0881.
The Tourette Syndrome Association, 4240 Bell Boulevard, Bayside, New York 11361-2820. (718) 224-2999. Web: http://tsa.mgh.harvard.edu/
Graham Bell Association, 3417 Volta Place, N.W., Washington, DC
20007-2778. (202) 337-5220 (Voice/TTY).
After you join organizations, you will receive their state and national newsletters. Information from these newsletters will put you on the cutting edge of new educational, scientific and legal developments in the field of special education. The cost of your membership will be repaid many times as you plan for your childs future.
Learn About Your Legal Rights and Responsibilities
You need to learn about your legal rights and responsibilities. Using a highlighter, read and re-read the Individuals with Disabilities Education Act (IDEA). Attach sticky notes on those pages that relate to your childs situation.
Wrightslaw: Special Education Law (ISBN: 1-892320-03-7) is a legal reference book that contains the full text of the Individuals with Disabilities Education Act, IDEA regulations, Section 504 of the Rehabilitation Act, the Family Educational Rights and Privacy Act (FERPA), and decisions in special education cases from the U. S. Supreme Court. More info To order
education regulations are included in Wrightslaw:
Special Education Law.
Investigate the web sites maintained by your state and local school district. Several states publish their state special education regulations on the Internet. Some states now publish the results of due process hearings on their sites.
Use the Internet for Legal Research
dozens of good sites for legal research. Versus
Law charges a small monthly fee for full-text access to all
appellate state and federal decisions, including supreme court decisions.
Define Your Legal Issue Correctly
define their legal issue correctly. For example, parents
often contact us because the school isnt providing accommodations
and modifications and the child is failing.
Modifications and accommodations are not acceptable substitutes for teaching basic skills. Most special education disputes fall into one of four categories.
the child has red flags and educational problems that suggest
a disability, the school hasnt found the child eligible for special
Failure to Provide an Appropriate Education
Children who are eligible for special education services should have IEPs that are individualized to meet their unique needs. Unfortunately, many districts offer one size fits all programs that dont meet childrens diverse needs. If the child isnt benefiting from the program, the child isnt receiving an appropriate education.
Failure to Follow the IEP
Although the child has an IEP that includes a commitment to provide services, the school isnt following the IEP. In many cases, the parents dont know the child isnt receiving services unless other problems emerge.
schools have adopted zero tolerance policies. With zero-tolerance
policies, the punishment generally doesnt fit the crime.
Learn About Special Education
accurate information about your childs disability, how your child
learns, and how your child needs to be taught. With the Internet, you
can find answers to many of your questions.
is a short list of sites we recommend. (NOTE: The Internet is expanding,
and web addresses change often. These addresses were accurate when this
article was published).
ERIC Clearinghouse on Disabilities and Gifted Education, National Library of Education (NLE), at http://ericec.org/
Families for Early Autism Treatment at http://www.feat.org/
Federal Resource Center for Special Education at http://www.dssc.org/
LD Online contains hundreds of articles about disabilities, remediation, IEPs, legal rights and responsibilities, and links to other resources. Spend a few hours at this award winning site at http://www.ldonline.org
National Information Center for Handicapped Youth (NICHY). NICHY is an excellent resource, offering dozens of free publications that you can order or download from their website at http://www.nichcy.org/
National Parent Network on Disabilities at http://www.npnd.org
Parent Advocacy Coalition for Educational Rights (PACER) at http://www.pacer.org
School Psychology Resources Online is an excellent site with links to hundreds of resources. http://www.schoolpsychology.net
Schwab Foundation for Learning at http://www.schwablearning.org/
Request Advocacy Information From Your State
Special Education Division of your State Department of Education. Ask
for a copy of your state special education laws, regulations, and guidelines.
Request all material that they publish about special education, IEPs,
and Section 504 programs.
TIP: The Individuals with Disabilities Education Act (IDEA) is a federal law. Although each state develops its corresponding statute, regulations, and guidelines, state law cannot conflict with the United States Code (U.S.C.) or the Code of Federal Regulations (C.F.R.)
Each state has an independently operated and funded Protection and Advocacy Office. The Protection and Advocacy Office is not affiliated with the state Department of Education. Contact the national P & A Office to get information about your state branch. Request their publications about special education, IEPs, and parent rights and responsibilities.
Contact your state Parent Training Information Center
To find the Parent Training and Information Center nearest you, use our Directory of Parent Training and Information Centers.
Request Your Childs Records
a complete copy of your childs cumulative and confidential files
from the school and from the administrative office where the special
education department is located.
Request a copy of your childs records from all agencies and individuals that may have information about your child.
Consult with a Private Sector Expert
Schedule a consultation with a psychologist or educational diagnostician in the private sector. Provide your consultant with a copy of your childs file and test history. Ask your consultant to teach you about the significance of your childs test scores, using the Bell Curve.
consultant is willing, tape the session so you can review it later.
After the consultation, review your childs test data using the
To measure your childs educational progress or lack of progress (regression), youll need to learn about the educational and psychological tests administered to children, and about standard scores, percentile ranks, and grade and age equivalent scores. Using a highlighter, read and re-read our article, Understanding Tests and Measurements for the Parent and Advocate.
You need to understand the different scoring methods that are used in tests and evaluations (i.e., age and grade equivalents, standard scores, percentile ranks).
equivalent scores (GE): information about your childs skills,
when compared to other children in the same grade.
When you use statistics, you can measure educational progress and regression (lack of progress). Most special educators havent studied statistics. In most cases, the individual who interprets your childs test scores will be the school psychologist, not the special educator who actually provides special education services. The average school psychologist evaluates more than 100 children a year. The school psychologists knowledge about your child may be quite limited.
After you master statistics, you will be in a stronger position in your dealings with the school. When you take these steps in your long-range planning, your preparation will eliminate or minimize many problems. If a crisis or emergency does hit, youll be prepared.
Learn to Use Tactics & Strategy
To resolve problems successfully, parents need to understand how schools work and how school culture affects decision-making. You must turn lemons into lemonade which means learning how to turn a negative event into a positive opportunity to secure better services for your child. (For ideas about how to use tactics and strategy to get better services, read The Art of Writing Letters.)
Control Your Emotions
keep your emotions under control!
Your Short-Term Relief
Now, its time to look at short-term relief. Put your childs self-esteem at the top of your list. When children with disabilities struggle and fail, many decide that they are losers. Your child must feels your love and concern, even though some behavior is unacceptable. During a school crisis, family stress is high. Many families consult with a psychologist, psychiatrist, or clinical social worker in the private sector. Your goals are to reduce stress, improve communication, and provide support to the family.
Mend Your Childs Self Concept
Here is an exercise you can use to begin mending your childs self concept. The Public Broadcasting System in Washington D.C. (WETA) produces F. A. T. City Workshop, a video by Rick Lavoie. Most public libraries have this video. You can also order from WETA at http://www.ldonline.org/ Watch the F.A.T. City video with your child. Talk about what you learn. Many parents and kids say that after this experience, tension dropped and healing began.
Get a Comprehensive Private Sector Evaluation
Get a comprehensive evaluation of your child from an independent expert in the private sector. The purpose of the comprehensive evaluation is to identify your childs problems and develop a comprehensive plan to address these problems. Before you can make good decisions about your childs special education program, you need accurate diagnostic information about the childs disability, strengths and weaknesses.
Expect to pay for this evaluation. Many parents ask the school to pay for an independent educational evaluation. If the school pays for the evaluation, expect the evaluation to support the schools position. The comprehensive evaluation should be done by an independent expert in the private sector. View this as an investment in your childs future. A comprehensive evaluation will give you a roadmap for the future.
Examine Your Personal Beliefs
Examine your beliefs about your child and your childs disability. Do you feel sorry for your child? Do you feel guilt about your childs problems? As you try to protect your child from painful experiences, have you become over-protective?
Will pity, guilt, and over-protectiveness help your child become an emotionally healthy adults? Children with disabilities learn differently. Because they learn differently, they must be taught differently. When they are taught correctly, they can and do learn.
Conditions that are disabilities in large classes often have powerful, corresponding abilities. Many distractible children are creative. Some children can hyperfocus and perseverate on tasks. If the child learns to channel these qualities, these traits can be great assets.
Your Journey from Emotions to Advocacy
On your journey from emotions to advocacy, you will learn about your childs disability, educational and remediation techniques, how to measure educational progress, IEPs, and how to artfully advocate.
not alone. Other parents have traveled down this road. They walked down
the same paths.
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