I wrote the below article in March of 2016. Today, in an online call with a few dozen advocates, attorneys and a Policy Director for a US Senator, this issue came up again.

As he (the policy director) was talking, I kept thinking, “Wait, I’ve heard this before. I’ve written about this before.”

A hand holding an iPad displaying information on how to find a special education advocate.

So, as soon as our call ended, I looked it up, and sure enough, there it is. I got it out, dusted it off, and added today’s new information.

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Today’s information is this:. This movement is still underway through two lobbying groups. Both groups are associated with school superintendents and administrators.

If IDEA moves to a reauthorization any time soon, parents IEP rights are at risk. There is movement underway to change or eliminate two things.

  • IEP Due Process as we know it
  • Significantly weaken a parent’s rights in the IEP process.

One of these, the second one, includes details like “Once a school attempts to contact a parent three times, they can move forward with the IEP as they wrote it if they have not heard back from the parent.”

Three times? Right. And what if we have a nefarious actor who knowingly calls an old phone number? Or when they know the parent is at work?

This isn’t just to invite the parent to the IEP meeting. This is to move forward with an IEP that the school wrote. After three times, it could go into effect.

I will look for current proposals. The one from last time is included near the bottom of the post.

These are the types of things that happen when we’re busy. We are busier than non special needs parents; I’ll argue that one until my last breath. We have more doctor and specialist appointments and more school meetings.

We need more grace, not less, when it comes to returning phone calls.

Please stay engaged. Please commit to learning how to advocate and lobby at the government level, not just at IEP meetings. I have lots of information on this site and in my training about it.

Or, you can find other resources online. Connect with others in your local community and visit your legislators. Because that was one of the biggest takeaways from today–that a small group of parents visiting their legislators really is impactful.

Begin article from 2016:

Here is the original headline. I changed it today.

due process disappear
What’s old is new again. What goes around comes around. Or whatever you want to call it.

“I am not in favor of the ESEA provisions that allow for expanded use of restraints and seclusion for children with disabilities. As it is….”

I was interrupted. “Mrs. Lightner, you have to understand that the Senator also hears from constituents like the Superintendents’ Association, and they are saying that they need expanded use of restraints and seclusion.”

Woman in White Long Sleeve Shirt Using Silver Laptop Computer

It was my first visit to Senator Toomey’s office by myself (not with a lobbying/advocacy group). I knew what to expect from the visit, but you never know what they are going to say. Most staffers (in my experience) just nod, take notes, and tell you what “their boss” is doing that is relative to your concerns.

But Toomey’s people were actually pushing back. And on restraints and seclusion! That was in 2013.

Now they (the Superintendents’ Association) are up to it again in 2016. And we know they have an ally in Toomey and many other Senators. (2024 Note: Senator Toomey is no longer our Junior Senator, Senator Fetterman is.)

So what are they up to this time?

It’s the re-authorization of IDEA. And they are proposing that we do away with Due Process. Yes, Due Process as we know it, could disappear.

Do away with due process
This is the original graphic that I had accompanying the original article. I decided to leave it, even though it makes me cringe.

Look, I hate Due Process. It is a system that is stacked against parents. It is in desperate need of reforms. But this solution is not one that I am supporting at this time, and here’s why.

First, here is the proposal that was developed by the Superintendents’ Association: rethinking special education due process

They make some compelling arguments. Specifically, your outcome at due process is not an indication of the child’s overall outcome.

I mean, if you go through all that….prevail at due process….and that does not necessarily mean that you are improving outcomes of kids?? That’s huge.

But, can we trust their data? We all know that there are, ahem, some occasions when a school district is very adept at collecting data that will point to the outcome that they want.

When I see corroborating data from a group like COPAA or the Arc, I’m more inclined to believe. Or when a wider sample is done.

Second, I loathe, loathe LOATHE their argument that Due Process is bankrupting districts. This is absolutely something that the districts have brought on themselves. I have watched many times as a district spent more to deny a service than it would cost to provide the service.

That is something we definitely need to study, because I can assure you that it occurs more often than taxpayers know.

Due process is bankrupting more parents than districts, I can assure you.

What also needs to be said is that, in many cases, the attorneys for the school districts are driving this.

I heard from a local law office that represents families:

School boards and superintendents, 99% of the time, are not aware of the fact that the district’s attorneys are advising administrators to refuse mediation or facilitated IEPs. I have experienced this twice this week…..up until the point they (school district’s attorneys) were consulted, it had been proceeding amicably. Both districts turned down requests for mediation upon the recommendation of counsel.

The attorneys aren’t recommending non-adversarial remedies to districts like mediation, because they aren’t able to participate (in PA) and there is no money in it for them. Due Process, on the other hand, guarantees many, MANY billable hours for the lawyers.

Attorney who asked to remain anonymous.

Also, I’ve seen it; you’ve seen it; we’ve all seen it—the long, costly, and expensive song and dance they do to avoid giving a child what they need. If they would devote even half of those resources to just giving kids what they need. Instead of developing these complicated schemes and reports to show why the child doesn’t need it, we’d all be better off.

As an example, I once worked with a family, and the charter school spent over a year of time—employees’ time, my time—denying a kid a $1500 transition program. They brought in the school psychologist, guidance counselors, you name it—all these people doing observations and reports to “prove” that the child did not need this program.

The parents did not have the money to pay for it themselves. In the end, after a full day of mediation and countless payroll hours, a year later, she got into that program. That charter school easily made that program cost 2x-3x what it should have, and the data was there all along—she needed this.

Throughout the whole year, our data never changed.

So can this really happen? Could Due Process go away?

Short answer, yes. Right now, we have a Republican majority Congress, and Republicans are backing this. (2024 note: Remember, I wrote this several years ago, it changes often!) I’m not making this up; that is what I was told on The Hill by staffers—that this is Republican-driven effort.

That being said,  since ESEA/ESSA was just approved for re-authorization in recent months, I don’t expect the re-authorization of IDEA to happen any time in the immediate future.

But that doesn’t mean that closed-door discussions are not already happening, because they are. But with a huge election (President, 88% of House seats, many Senate seats) coming up, the whole SCOTUS thing… I think that there are plenty of distractions and that IDEA will not be a priority for our legislators. I could be wrong, though.

What would it mean if it passed?

I have another friend who is a special education attorney. She shared two of her thoughts with me on this:

“We could just hold our nose through the educator’s determination and then get to federal court” and “The idea I like is making all states require parent consent for changes so the onus is on the district to file and then giving them the burden.”

Yes, those are two really good considerations. However, taking everyone to Federal Court will just make it even more expensive than before. And I would expect a lot of parents to cave and not want to go to Federal Court. The term itself is scary.

Federal courts are not everywhere; you likely have to travel to your closest big city. It will be more time off work. More time that the child is doing without. More stress. And as I stated in my â€ś8 Ways” post referenced above, not all federal judges are very familiar with special education law.

And, parental consent for all changes to the IEP. Interesting idea. I don’t understand why it is needed if school districts are using PWNs the way they are intended.

If my crystal ball was working, I would predict 3 things:

  1. It would take FOREVER to get a kid an initial evaluation, and even now I meet families who have been asking for them for YEARS.
  2. Initial IEPs will be very light.
  3. More abuse of RTI system.

Lastly, this new “system” was developed by the Superintendents’ Association. And it had costs, not kids, in mind when it was being developed. That’s rarely a good thing for our kids.

At some point, I’d like to think that Superintendents would realize that maximizing an education in order to make that child a productive member of society benefits their community, not just costs.

But, schools usually are reactive, not proactive. This is no different.

I also have a friend who is a school superintendent.

This person said: Both the AASA and the NSBA are pushing for mandatory mediation and lessening of protections for students with disabilities. Superintendents as a group have lost their focus on what is important. Instead of trying to lessen protections they should be focused on ensuring the success and achievement of every student. If they would focus on what really matters, maybe education would be in a better place.

That same person told me that they have been in on some of the discussions of this new proposal and that the talks about our families “weren’t pretty.”

So, it’s a shame that our own superintendents are against us too. I don’t necessarily have high expectations, but hearing it first-hand still stings.

What can parents do?

Stay connected. Keep your ear to the ground (or to Facebook). No seriously, sign up for my email list. Sign up for COPAA’s. Stay connected with your special education friends. 

Learn how to become a citizen lobbyist, so that when the time comes, you’re ready.

Elections are coming….VOTE! Take a few minutes, read your candidates’ web pages and see where they stand on the issues. What I use as my litmus test is school choice–I have found that if a politician is for school choice, they usually are not an ally.

I am in the camp who believes that school choice leads us down a path where our public schools will become a wasteland of the very poor and the disabled.

And pace ourselves–the re-authorization of ESEA took 5-7 years, so long I forget how long it was.

I would expect IDEA to take a few years. So it won’t just be one phone call or one email, we have to be in it for the long haul.

I keep saying it over and over….but we need to speak up and have our voices heard. So when the re-authorization of IDEA is being discussed, we have to speak up.

Can I count on you to be a foot soldier in this? Can your child?

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