The special ed system is stacked against us. It’s not your imagination…it’s not an even playing field. Lately I’ve been feeling very deflated. I have written to several people I know in this field to reach out for help, reach out for ideas. Anyone who knows me, you know–I really try to stay positive. “Stay child focused!” “Use the process!” are some of my mantras. But what if the process is stacked against you? How can you expect to make any progress? I hear from parents all the time, “Why does it have to be this way? Why does it have to be so hard?”
I don’t know. I wish I had answers. I’ve been lobbying for specific legislation for years and nothing has improved. So, I thought that I would show you some specific examples of how the system really is stacked against parents. It’s not your imagination. What do I hope to gain? I don’t know. Maybe just more exposure, maybe one politician will read this and take up the cause. Maybe many parents will read this and be motivated to organize and act.
First, let me give some background. The original law/act, IDEA 1975 is now 4o years old and has gone under a few revisions and updates. Some of the main principles of IDEA are parent participation and having a due process. By establishing due process, it basically created a “complaint” system, or as the wording says, an “impartial due process hearing.” Prior to this, if parents had an issue, there was no system in place to take care of it. I’ll get back to that word ‘impartial’ later in this post. But, you would think that with a law guaranteeing these kids an education, and a process in place to handle disputes….it should be ok, right? Wrong!
I’m sure if I spent more time searching for examples, I could cite them for days. But, I just wanted to offer some parents a bit of validation, that you are not going crazy. If it feels like the special education system is stacked against you, it is. And that needs to change. Change starts with us.
Ways the Special Education System is stacked against parents
Money. The whole root of the problem stems from money. IDEA 1975 has never been fully funded, I’ve been ranting about that for years. Schools do not have the resources to give our kids what they need. Why do they fight the parents on it? I don’t know. But they do. Egos play a role too, but by and large it’s about money. And schools also have more money to pay lawyers than the average family, so they have the advantage there.
Money also appears in ways that are not so measurable. Look around the table at any IEP meeting. How many people at the table are being paid to be there? Chances are, for everyone but the parents, this is part of their work day. Parents, on the other hand, have to take time off of work (either unpaid or using vacation time) and often have to pay sitters for other children. Having evening or early morning meetings so that the parent can avoid this are not likely to happen as teachers will not appear during non-work hours as defined by their union contracts. (this is not personal or directed at teachers, merely a statement of fact-it is difficult to get evening/early morning meetings) Particularly middle class and low income families have trouble shouldering this burden because they only have so much time from work they can miss before they risk losing a job. A Due Process hearing can last days or weeks, thus using up a parent’s vacation time for the year.
Lawyers. Most school districts have a District Solicitor or attorney whose sole purpose it is to give advice and legal representation to the school district. Do you have an attorney on retainer? I do not. Nor does the average family. I have had many families seek out legal representation for IEP issues and have been told that it will cost a minimum of $20,000. So, see item #1-Money. That is, if you can even find an attorney that knows special education law. Most do not. And those who do know special education law, well, follow the money. Are you going to work for families who do not have money, or school districts that do have money? Right. It should be noted that IDEA does have a provision that allows parents to recover attorneys’ fees if they prevail at due process. Parents are not allowed, however, to recover any fees paid to experts or expert witnesses, even if they win the DP. So if you need that $5000 IEE or neuropsych to prove your case, and then another $500-$1000 for that evaluator to show up at your DP and testify, that’s all out of your pocket.
But, you have to win, and the system is stacked against parents…more on that coming up.
Deep pockets. My friend Chris who works as an Advocate says it best, “When a school district loses a Due Process hearing, they do not pack up their tents and go home.” And why should they? They have attorneys on retainer…attorneys who work for them anyway, so why not have them file appeals? I once was assisting a parent who won BIG at her Due Process. A very disgusting, completely egregious case. I could not believe it when the district appealed it. But guess what? Mom could not take any more time off work and she was mentally and physically exhausted from the DP. So she caved/settled for much less than what she had been awarded in the original DP in order to avoid the Federal hearing. The district won, as they knew they would. Or, for them, no harm in trying, they have nothing to lose.
School districts carry lots of insurance–that they can pull from when they lose cases and have to do payouts. In many cases, these expenses are covered by insurance companies, not from a school district’s general fund or bank account. They literally have nothing to lose by going to DP with you. Parents on the other hand, in addition to losing their sanity, lose work time, retirement accounts, second-mortgage their homes, put siblings through undue stress and more. For parents, this is their child, their baby. For school district personnel, just another day at work.
No penalties/repercussions for schools and no oversight. Other than ‘doing the right thing,’ there is no incentive for schools to follow IDEA and give kids what they need (and what the schools cannot afford). They may have to pay some comp ed (but that will likely be covered by insurance) but that’s about it. There are a few complaints you can pursue at the state/federal level but they are a slap on the wrist at best. If you cannot afford to give kids what they need per IDEA, and there are no repercussions for not doing it….why should they do it? There’s no incentive to follow IDEA and no repercussions for not doing it. The only real “policemen” for this law….parents! That’s it! States have compliance monitoring (which is a joke, I’ve been a compliance monitor) to make sure that their paperwork is in order, but it does not measure effectiveness of programming. There is no oversight–no one to make sure that schools are following the law. IDEA is a law/act, but there are no arrests, fines, citations, anything…if you break this law. No one oversees it.
Burden of Proof. This is one of the issues that has completely changed the special education climate in my state and many others. First of all, when you go to Due Process, it is a legal hearing. Not like Judge Judy, but sort of. There are expert witnesses and testimony and all that. Burden of proof refers to which party has to have the stronger case, or which party has to prove their case “more” than the other party. There was a very famous case over a decade ago that went to the Supreme Court, and changed Burden of Proof. Or further defined it.
Supreme Court Justice Sandra Day O’Connor wrote: “If parents believe their child’s IEP is inappropriate, they may request an “impartial due process hearing.” §1415(f). The Act is silent, however, as to which party bears the burden of persuasion at such a hearing. We hold that the burden lies, as it typically does, on the party seeking relief.”
What that means is, if the parents file for Due Process, they have to have a stronger case than the school district. What this has done in my area, is to create and strengthen what I call the “Culture of No.” Districts just say no, over and over. And over again. They wear you down until either you give up and go away, or they force you into filing for Due Process. And if you file for Due Process, the burden of proof is on you to have the stronger case. A stronger case often means a knowledgeable attorney and expert witnesses, so again we revisit items #1 and #2…because that is what it will take to win Due Process and beat the Burden of Proof. (About a dozen states have laws in place that place Burden of Proof on school districts due to their “natural advantage” of knowledge and resources in the process. Check your state’s regs. But see, even the SCOTUS justices noted that school districts have a “natural advantage” but it remains the same.)
Impartiality. Ha! What a freakin’ joke! Impartial, right. First, let’s talk about the Impartial Hearing Officers, or IHOs as they are sometimes referred to. PA’s website states: Individuals are chosen based upon their academic achievement, background in special education and law, professional experience and writing abilities. You might very well have a hearing officer who previously worked for school districts, and therefore, bias must be implied or expected. Anyone who works in this field knows, we all know which IHOs are more parent-friendly and which are more district-friendly.
But even better–here are some examples of what is going on in Ohio, as expressed by a friend who is also an Advocate. In Ohio, our IHO’s are trained by the attorneys that represent the districts. Burden of proof is definitely on the parents, schools rarely file due process. Good luck in searching the data base to find a due process that went in the parents favor. Of course who knows how many cases are out there where the families settled before actually getting in front of the IHO. If you don’t have an attorney you have very little chance to win due process. Every “support” for parents is backed (funded/trained) by the Ohio Department of Ed in some way or another.
Imagine that! “Impartial” hearing officers who are trained by attorneys who work for the school districts. Doesn’t sound impartial to me!
Or, even better, listen to this mom and Advocate in South Carolina: “Due process in SC is a joke. There are 8 “impartial” hearing officers. If you file for due process against the school district, The school chooses the hearing officer. Most of them have ties of some sort to education in the state and several of them are very good but two always rule in the school’s favor no matter how blatant the violation.
So the district always chooses one of those two hearing officers to hear the case. Then if you appeal it it goes to a second hearing officer, which is of course chosen by the school district. And they always choose the second guy who will never rule in favor of the parents. So if you want to go to due process in South Carolina you have to be able to fund it until It can get to the district court or to the fourth circuit.”
Districts get to choose the IHO! Doesn’t sound impartial to me.
Judges who do not know Special Education or Disabilities. IDEA has not defined or clarified everything, so like many other areas of law, it gets defined by what is known as ‘case law.’ Cases go before courts and set precedents. In PA, if you lose at DP, you have two choices for appeal–state or federal. Federal is what most people choose and Federal Districts are known for setting precedents. So, let’s just suppose for a moment that you have a good case and you have the resources to have an attorney–that the family has these items on their side. Should be much easier for them, right? Nope! Wrong again! Because look at what case law has decided in some states, as told to me by an Advocate in Florida: “Florida is in the 11th Circuit. Unfortunately, the 11th circuit has interpreted FAPE to mean all schools have to do is create an IEP that provides the student with some benefit. The court has interpreted some benefit to mean allowing special needs students to enroll in school. So, the bar is set as low as it can go down here. While there are many other ways the system is stacked against parents, the low standard of care is the most crushing. Makes it almost impossible to prove the school denied a child FAPE.”
Case law is not always progressive. In fact, in this district it appears that it is undoing some of what was originally intended by IDEA. In other words, if your child lives in the Federal 11th District, as long as their school programming is providing them with ‘some benefits’ you don’t really have a case. At all. Very few lawyers know special education and even fewer judges.
To add to this, nothing is clearly defined. You hear terms like “meaningful benefit” and “appropriate.” But there are no guidelines or baselines to define progress and benefit for the child.
School personnel being trained by attorneys. In my county, on every Election Day, most schools are closed for students but the teachers have an in-service. We have an infamous in-service (say that 10x fast!) where every Election Day, school district attorneys hold workshops to train the school district staff who write the IEPs. They teach them how to write “legally sound” IEPs. In some districts, these same attorneys read most of the IEPs before they are shown to parents, to make sure that they are legally sound. So, if by chance you could overcome all of the above hurdles including Burden of Proof….you already are up against an IEP that has been before an attorney’s eyes and has their approval. School district staff get paid to attend a workshop where they will learn more about Due Process and Case Law, and again, parents have to attend workshops on special education (if they can even find one!) on their own time and at their own expense. And, in some cases, the workshops are put on by people trained by…yep, you guessed it, school district attorneys.
Imagine it–you get to take a day off from your normal daily tasks to attend training. With your colleagues and with pay, of course. Training on IEPs. Must be wonderful! I’m trying to think of the last time I heard of a parent being paid to go to an IEP training. Hmmmm…..(spoiler alert: there aren’t any).
There are several pro-district attorneys in my region who have established themselves as the go-to people and resident experts on IDEA and Special Education Law. School districts and even parent groups hire them to do workshops. Why the bias? Well, there is a philosophy out there, held by many (even some special needs parents), who believe that our public schools should not become de-facto mental health facilities and medical institutions. These folks do not believe that the term “education” encompasses everything, that it only includes basic academics. And they are fighting to change the system in their favor.
I’ve talked to several special ed teachers about their college training. Most agree that their training as far as IEPs and the IEP process, is not at all like the real-life experience. And, they want to keep their jobs–they have bills to pay. So they are forced to side with the schools when in their hearts they really know that the child isn’t receiving what they need.
Due Process doesn’t change anything. How depressing is this? 40 years of IDEA and we haven’t changed outcomes. 25 years of ADA and we have not improved life for people with disabilities (still living in poverty, high unemployment). And now, according to the data below, even if you overcome all of the above obstacles, you prevail at Due Process…you have not increased your own child’s odds at all- rethinking special ed due process.
That attachment is also a very important read, because there are some lobbying groups who are trying to do away with due process. Yes, you read that correctly. They want to implement a more cost effective system, so when things are developed with costs, not kids, in mind….it is usually not too good for our kids.
Prevailing at DP has not been shown to change outcomes. How about that….the very laws and systems that are put into place to help our kids, have done nothing. And, even though it’s a crappy system and all that we have, school superintendents want to replace it with an even worse process.
Other due process/special ed items to consider:
My friend brought up another issue that I felt was worthy of noting–pendency. Pendency or Stay Put means that while the family and the school district are in a DP dispute, the child stays put in their current placement until the situation is resolved. It was designed to protect the child and keep them from bouncing all around placements during the dispute process.
But what if you dislike the current placement? What if you are trying to the get your child into another setting–more restrictive, more supports, less restrictive, due to bullying, due to anxiety….but now for the weeks or months of a DP case, your child has to stay there?! Can you imagine? If your dry cleaner ruined your coat and you were suing them, you certainly wouldn’t return to that dry cleaner again, would you? But if your child’s current placement causes great anxiety or shut down or school refusal, they have to stay there until you win a DP and an appeal. And if you keep your child home, you risk truancy charges. I don’t know if this is an example of the system being stacked against parents, but I felt it is worth mentioning.
“Impartial Due Process” my foot.
What parents can do
What’s a parent to do? Drink, heavily. (kidding!) Honestly, it’s time for a revolution. This is the last civil rights battle to be fought. If we don’t do it, who will? Visit your politicians, write to them, gather in groups so brainstorm and create change. Organize. Form parent groups. Help each other out. Host decent workshops with child-focused training. It starts with us.
**Please note! This is not AT ALL a dig on teachers. I know that most are doing the best that they can with what they have. I can only imagine as a bright-eyed, enthusiastic 20-year-old, you commit to special ed because you want to help disabled children. Then you go deep into student debt, get a Masters and a job….only to realize that you are not given the resources to do that job. How demoralizing! And then, to keep your job, you are held accountable to test scores…and you are not given the resources to teach these kids how to read. Still, I wish that teachers would side with parents whenever possible, because I have heard of hostile behavior from teachers. But most are good and we are on the same team.