Special Education Today

Image via Wikipedia

------- Thanks for subscribing! Jim Gerl

Here we go again.

Last Spring, I wrote about how parents of children with special education needs in Connecticut, as well as their advocates and attorneys, organized to successfully oppose efforts by school districts to switch the Burden of Proof in Special Education Due Process Hearings from the school district, who has the burden now, to the party who initiates the hearing…which is, in almost all cases, the Parents.  That post ended with the following comment:

“Luckily, this latest effort by school districts to alter the Burden of Proof was unsuccessful, but those of us who care about the opportunity for parents to access their rights will likely need to remain vigilant on this issue, as I doubt it’s going anywhere for long.”

Well, it didn’t even take a full year.

This Monday, March 8, 2010, many of us will be back in the Legislative Office Building in Hartford, once again, for a Public Hearing on this same issue.  If the school districts are successful in changing the Burden of Proof in this legislation, they will be be making a process that is already so very difficult for parents that much harder, and upending a State practice that has been in effect for over a decade.

Taking on a school district in a special education Due Process Hearing is an incredibly difficult task, even when parents are represented by experienced counsel, and have the means to hire experts to testify on their behalf!  The parents who fall into that category, however, are by far the minority.

Most parents can’t afford lawyers or experts.

Such parents are already facing an uphill battle, as their school district has special education teachers, school psychologists, occupational therapists, speech pathologists, physical therapists, social workers, regular education teachers, and administrators, all on their payroll, all of whom can testify on the school district’s behalf.  And remember, all of the education records and most of the evidence is within the possession and control of the school district.  Doesn’t it make sense that the Burden of Proof would fall properly on the school district, whose obligation it is to offer a Free and Appropriate Public Education?

The information as to how you can voice your opinion on H.B. 5425 follows, including how to write your legislators if you can’t be present.  The portion of the bill which affects the Burden of Proof in Due Process Hearings is found in section 3.  

The Education Committee will hold a public hearing on Monday, March 8, 2010 at 3: 30 P. M. in Room 1E of the LOB. Please email a PDF copy of your written testimony to chris.calabrese@cga.ct.gov by 10: 00 A. M. on the date of the hearing and include the word “TESTIMONY” in the subject line. Written testimony will be accepted in Room 3100 of the LOB until 12: 00 P. M. on the date of the hearing. Please submit 50 copies. Written testimony submitted after 12: 00 P. M. will not be distributed in hard copy form. Sign-up for the hearing will begin at 12: 00 P. M. in the First Floor Atrium of the LOB, will be conducted by lottery, and will conclude at 1: 00 P. M. The first hour of the hearing is reserved for Elected Officials. Speakers will be limited to 3 minutes of testimony. Unofficial sign-up sheets have no standing with the Committee. All testimony will be available at http://www.cga.ct.gov/ed/.

If you care about the rights of children with disabilities, it would be best if you could be there Monday afternoon to express yourself and let your voice be heard, and join me in opposing Section 3 of H.B. 5425!

Image via Wikipedia

------- Thanks for subscribing! Jim Gerl

Image by Christopher S. Penn via Flickr

------- Thanks for subscribing! Jim Gerl

One of the greatest things I’ve discovered since starting this blog is that there are so many lawyers and law students interested in practicing special education law who are thirsty for knowledge about how to get started.  I had the distinct pleasure of being contacted by Attorney Matthew Stoloff last year as he was about to launch his practice.  He shared with me his intent to focus in this area of the law, and in my communications with him, it became instantly clear to me that Matt would be a welcome addition to the community of Parent’s attorneys.  I am honored to introduce him to you as this month’s guest blogger.

Attorney Stoloff is passionate, smart, and dedicated to the rights of children with disabilities, and I am confident that he has a very bright legal career in front of him.  In particular, I love that he chose Transition Services as the focus of his guest post; it is a subject about which I feel we can’t pay enough attention.

Attorney Stoloff is a disability rights attorney in New Jersey.  His legal interests include special education, disability discrimination matters, and civil rights issues. Feel free to visit his website and blog

The Day After Graduation

by Matthew Stoloff, Esq.

Life is short. At one moment, a child is learning to walk or talk. In the next moment, the child is about to graduate from high school. Because time flies so quickly, graduation occurs much sooner than parents expect.

Unfortunately, many children with disabilities, particularly those with neurological and cognitive impairments, are not ready to graduate this year because they have not mastered basic life skills. Doubly unfortunate is the fact that hundreds, if not tens of thousands, of mentally impaired children have graduated from school without having mastered basic life skills.

What are basic life skills? These are tasks that many of us take for granted: making the bed, dusting the furniture, cooking, cleaning, using the microwave, using the dishwasher, using the washer and dryer. It also means knowing personal hygiene, recognizing signs, developing time management, counting money, going to the grocery store, purchasing goods, and effectively communicating with strangers. In addition to living independently (or semi-independently), basic life skills also include knowledge of how to find and keep a job, as well as interacting with co-workers and customers or clients. Other basic life skills are provided here.

Some of you might be thinking: “Schools have no responsibility to teach children any of these things. Parents should be teaching their children this stuff.”

I agree that parents should teach their children life skills. However, schools have just as much responsibility to teach children life skills. In fact, the Individuals with Disabilities in Education Act (IDEA) not only recognizes the need to teach children with disabilities life skills, but requires it! (If you enjoy reading statutes and regulations, you can start here.)

To be an effective advocate for children with disabilities who are a few years away from entering into adulthood, every parent, school, advocate, and special education attorney should be be familiar with the law and regulations related to transition planning. Equally important to familiarity with the law and regulations is the ability to answer such as questions as:

· What can the child do now?

· What are the child’s interests?

· What should the child be able to do by the time graduation rolls around?

· What are the child’s strengths?

· What are the child’s weaknesses?

· Should we spend any time addressing the child’s weaknesses?

· How can we improve on the child’s strengths?

· How can we help the child learn to live independently or semi-independently?

· How can we help the child make decisions for him- or herself?

· How can we improve the child’s social skills?

· What jobs would be suitable for this child?

· How can we help the child find and keep a job?

No effective transition/life skills program can be developed without knowing the answers to many of these questions. However, once parents and teachers can answer these questions, they can start drafting a “Transition Planning” component into the Individualized Education Plan (”IEP”). To see specific, concrete examples of how the Transition Planning component can be drafted into the IEP, see the IEP Transition Checklist.

There is no “age requirement” to start developing a Transition Planning component in the IEP. It is really dependent upon the individual child. The law says that the Transition Planning component should be drafted when the child is no later than 16 years old. However, it would not be unusual to start the Transition Planning component at a younger age.

To learn more about Transition Planning and how to incorporate a life skills curriculum into an IEP, see Transition Planning for Students; Transition to Adulthood; and Teaching Students Who Are Low-Functioning: Who Are They and What Should We Teach? For specific, concrete lessons and ideas about developing a life skills curriculum and evaluating life skills performance, I highly recommend perusing The Lesson Plan Library hosted at the National Secondary Transition Technical Assistance Center (NSTTAC).

In Parenting Children with Learning Disabilities, parents are encouraged to think beyond school success: do whatever is necessary to help children with disabilities succeed in life…. All kids grow up fast, whether they have a disability or not. The time to think about life after school is now, not later.

It’s never to early to think about what happens the day after graduation.

Whenever I am asked to present to public school educators or special education administrators on the subject of the rights of children with disabilities, I try to remind them that, in every profession, continuing education should be embraced and appreciated.  This is because I have found so many problems when teachers feel threatened by a parent’s request to bring in outside expertise in their child’s disability.

In fact, many of the Connecticut special education disputes in which I’ve been involved have been exacerbated by a special educator becoming defensive when new information is brought to the team.

So, in an ongoing effort to demonstrate that ALL professionals should be open to learning, I thought I’d share a little “eureka” moment I had recently, which will allow me to be a better special education attorney.

Whenever parents bring a lawyer to an IEP Team Meeting, there is a natural tendency on the part of the educators working with the child to become overly effusive about how well the kid is doing.  In the past I’ve written about The Sudden Blossoming of the Represented Child.  While, sadly, this is often done in a way that misrepresents actual progress, I also realize that for many teachers, their training and nature tells them that they should be trying to reassure the parents that everything will be okay.

Still, it can be very frustrating for me to sit in these meetings.  After having been given a laundry list of very serious concerns that the parents have, to have to listen to team member after team member go on and on about how great things are can be tough.  Sometimes, it even involves visuals, like “and here’s this BEAUTIFUL drawing he just did yesterday!” or “he wrote this whole paragraph by himself!”  Other times, it’s just anecdotal, as in “oh, last week he said the cutest thing!”  and “did we tell you about the way he greeted the Principal in the hallway the other day COMPLETELY UNPROMPTED!?”

It gets a little annoying, and the cynic in me can’t help but wonder when they’re going to start waving their lighters in the air as they let me know about the Nobel Prize the child just won.

As I was sitting through just such an IEP Team meeting recently, a really basic question seemed like the only way to cut through.  And it worked.  So, here’s the tip:  when your child’s IEP Team is giving you the pep rally, listen patiently.  Then, when they’re done, just ask this simple question:  “and what are your concerns about him?”

I think you’ll be amazed at the responses you get.  They might say “we don’t have any” (which might prompt a follow-up question on your part of “are you saying you don’t believe he needs an IEP any more?”), but more likely, they’ll just start talking.  And talking.

At which point you should be listening.  And taking notes.

Image by Lawrence R.Y. Li via Flickr

------- Thanks for subscribing! Jim Gerl

Image by DaveBleasdale via Flickr

------- Thanks for subscribing! Jim Gerl

I guess I was due for a rant.

First, I get a vile comment on the blog that likened Asperger’s Disorder to a fad, and further blamed a number of disabilities on poor parenting.  Thankfully, you, my loyal readers, jumped on board and shamed this yahoo with your reasoned replies.  I have yet to learn more about what motivated the comment, nor even what led him or her to be reading my blog.  Let’s just say, it seems to me that this person has issues.

Still, it is always heartbreaking to hear statements that realize your worst fears about what some people think about individuals with disabilities.

Next, I read a letter from a board attorney on a case of mine, documenting the school district’s “concern” that my client, who is placed in a private special education school at public expense, is “not being given the opportunity to interact with peers.”  Translation:  the school district is laying the groundwork to try to stop paying for the private school.

Granted, I was already doing a slow burn over the comment on my blog, but this statement just hits a nerve with me.

The reference made by the school’s lawyer was to the LRE provision of the IDEA, which mandates that, to the maximum extent appropriate, children with disabilities should be educated “with children who are not disabled.”  IEP teams are required to regularly document and justify any removal of students with special needs from the regular education environment.

Inclusion of kids with disabilities in the “mainstream” is one of the main goals of the IDEA, and in fact is at the core of its historical underpinnings.

However, for some students at some points in their life, the IDEA contemplates that a more restrictive environment might be required, as in the case of my client, who is in what is called a “self-contained” program.  This means that all of the students who attend this school have disabilities, and in this case, severe developmental disabilities.  Self-contained programs can exist within the public schools as well, although this one happens to be a private program.

Which gets me back to the comment by opposing counsel, that the school would like to see the child “interact with peers.”  What was meant was “non-disabled peers,” but that is not what was said.  What was said was “the opportunity to interact with peers.”   The child DOES interact with peers; it’s just that he interacts with peers who happen to also have disabilities.  You don’t have to be a Freudian to see the subtext in this omission.

Since when do schoolmates with IEPs not count?  Students with disabilities ARE peers!

The more I stewed over this, the more I came to realize how connected the two comments were:  the nasty (and ignorant) response on my blog, and this reply from someone who should know better.  At the core, they betray what I believe is one of the biggest obstacles to progress in the disability rights movement, which is a basic absence of concern for people who have special needs by most people who have no personal experience with it.

Years ago, I came to the realization that there are two types of people when it comes to special education rights:  those who understand what “there but for the Grace of God go I” means, and those who don’t.

Recently, I was speaking to a group of law students about special education law.  One of the students started to ask why we, as a society, should be spending “all of this money” on kids with disabilities and especially special education litigation, when “many more” students might go without.  I responded that, as far as I am concerned, free football versus a child learning to speak was no contest.  Being a smart law student, he countered with examples of much more important things than football, like books.  Fair point.  So, I explained how most of the cases that become very expensive do so because the school district failed to follow the law to begin with, and then proceeded to give about a half a dozen examples of cases I’ve litigated which could have been resolved initially for a fraction of what it ultimately cost the school system.

What I didn’t say is that I’ve had this exact debate for many years with a number of friends from high school, college, law school, and beyond.

Several of whose children I now represent.

There but for the Grace of God…

Image by Ed Yourdon via Flickr

------- Thanks for subscribing! Jim Gerl

Image via Wikipedia

------- Thanks for subscribing! Jim Gerl

Many of my clients will ask me what to wear to their child’s special education Due Process Hearing.  As a matter of law, it should be entirely irrelevant to the proceedings what the parents of children with disabilities are wearing.  Impartial Hearing Officers are not saying “I found in favor of the school district because I detested the mother’s hand-bag.”

But parents need to understand that these decision-makers are human beings, and as such, they will form opinions and draw conclusions based, in part, on their perceptions, if only on a subconscious level.

For example, if a school district is trying to suggest that the father never follows through on anything, is disorganized and disheveled (part of the “blame game” approach), that argument is harder to reconcile if he appears at the hearings as neatly groomed and well-presented.  Do I think this is fair?  Of course not!

In a perfect world, what a child requires by way of special education services is what maters, regardless of the “present-ability” of his or her parents.

But in the real world, you need to be sure you aren’t sending unintended messages through your attire.  So, what do you wear to your child’s special education Due Process Hearing?  I’ve decided it’s easier to describe what NOT to wear.  So, here are the top three “don’ts”:

1.  Jeans

This is a formal proceeding involving a Hearing Officer or Administrative Law Judge, a court reporter, and sometimes attorneys for one or both sides of the dispute.  Jeans might put you at ease, but they will not send the Impartial Hearing Officer the message that you are taking the process seriously, nor even that you respect him or her.  Ditto for shorts, regardless of the weather.  I would not recommend going too far in the opposite direction either, as in a three-piece-suit.  “Business casual” is a good way to go for men and women.

2.  Your most expensive jewelry

Sigh.  Okay, here is the reality:  if you are in Due Process with your district, chances are you are arguing over additional special education and related services, or even private placement.  Those things will cost your school district money, which is, frankly, probably why they are fighting you over providing them.  You, as the parent, are now asking an Impartial Hearing Officer to order your school district to spend more public funds on your child.  Whether your child requires those services, as a matter of law, has nothing to do with your income, or lack thereof.  That being said, it probably will not go unnoticed if you show up bedazzled.  The Hearing Officer might think “oh, well, these parents can afford it themselves even if I don’t order it, the kid will be okay.”  Or worse “why are these affluent parents trying to bilk much-needed funds from their school district when they obviously don’t need it?!”

Look, I understand that your earrings might be cubics, or the fur coat may be faux, or the BMW you drive into the Hearing parking lot might be a loaner…but for purposes of the Hearing, leave the bling at home.

3.  A chip on your shoulder

By the time a parent has reached the point where they have filed a Due Process Hearing under the IDEA, chances are they have been through the ringer, and then some.  If you are in this position, you probably have a dozen or more outrageous stories to share about how duplicitous, negligent, or even downright mean your school district has been towards you and/or your child.  I get it.  But in a Hearing, the fact-finder is supposed to make an impartial judgment based on the evidence.  They don’t want to hear or see unbridled passion from either side.  They want facts.

Further, one of the standard defense tactics school districts employ is to try to characterize the parents as unreasonably demanding and unable to be pleased.  You play right into that hand when the Hearing Officer sees the scowling face of an irate parent sitting next to her at the very moment that  the school district is describing how much they’ve done to try to please you, to no avail.  Take a deep breath, and remember that you are there, presumably, because you believe the facts and law are on your side.

Trust in the truth, but remember that impressions matter.

Image by Getty Images via Daylife

------- Thanks for subscribing! Jim Gerl

Image by Getty Images via Daylife

------- Thanks for subscribing! Jim Gerl

Image via Wikipedia

------- Thanks for subscribing! Jim Gerl

Image by Joe Gratz via Flickr

------- Thanks for subscribing! Jim Gerl

Image by Getty Images via Daylife

The enthusiasm for charter schools, which was also high during the administrations of Bill Clinton and George W. Bush, reflects the desire of many parents to have choice within the public system. This desire has only been heightened by research showing superior results obtained by charters.

In a performance comparison of Boston charter school students with those not admitted, for example, Harvard University professor Thomas J. Kane found that the students attending charters outperformed their peers at traditional public schools. His research, however, was designed with the recognition that charter students are different along some critical, perhaps immeasurable, dimensions from students attending traditional schools. This is especially true in relation to students with disabilities: Traditional public schools are serving far greater numbers of them than charter schools, particularly those whose disabilities require significant special education services."

The article then goes on to cite a number of studies that show that students with disabilities are under-represented in charter schools. This is disturbing and brings to mind the recent post on these pages about the law review by Professor Mark Weber regarding some issues with charter schools and kids with disabilities. As the political support for charters increases, we need to keep a vigilant eye on how charters are welcoming and educating kids with disabilities.

What has your experience with charters been like?

------- Thanks for subscribing! Jim Gerl

JG: So, I find that to be interesting. The dispute resolution systems, the resolution session is a new thing that came in just in 2004. Do you have any feeling as to how that's working or - -

AP: Oh, I've heard nothing but great things about it. Okay, I've heard for both sides, on the school side, as well as with the parent side, because it's a way to at least come together to have a conversation. And so, I've heard that people really - - what's interesting is that some states already had systems like that set up. So, you may not hear as much from them because it was already in place, but for those that didn't, I believe it's been a real boon and I believe we've seen fewer due process hearings as a result.

JG: Yeah, I think that's true. It's definitely kept down the number of due processing hearings and I think for most of the time, it's the right reason. I had concerns, originally, about confidentiality and about the no lawyer sort of emphasis of it, but again, that's I think just my bias coming out as a lawyer, but I think that sometimes they're there for good reasons and I was afraid that it was going to abused in that way, but I have not heard from around the country - -

AP: I haven't either.

JG: - - and it's interesting because I really thought that was - - you know, that was another one of my bad predictions - - my crystal ball is often a little foggy, you know.

AP: Well, but sometimes we don't know and I think sometimes when people say, well, why are you doing that? And it's because there's a part of me saying, we don't necessarily know all the time, but we can at least try. If it doesn't work, well, we'll fix it. I mean, but let's try some of these things and see if we really can get it to work.

JG: Arbitration was in the last reauthorization - -

AP: Yes.

JG: - - in the House bill and then, it didn't make it through the last conference. Do you think arbitration is a good model? I have some thoughts about it.

AP: I don't know. Well, I have some biases about it. My brother-in-law is into that kind of stuff (laughing) and there's a part of me saying, well, does it really work? I don't know. I really don't know.

JG: Alright because it's interesting.

AP: I probably don't know enough about it to be able to weigh in on that and I don't know. I'm one of these and I know I am the eternal optimist, but I really think that we just really need to work together to do this, but I don’t think we need a third party to necessarily come in and say, you'll do this and you'll do that. I don't know. It's too prescriptive.

JG: Okay.

AP: That's my personal opinion.

------- Thanks for subscribing! Jim Gerl