Wrightslaw: From Emotions To Advocacy - The Special Education Survival Guide

The Parent's Phone Call is Usually Triggered by a Crisis
by Pete Wright, Esq.

Most phone calls to attorneys are triggered by a school crisis. The school may have advised the parent that they:

Refuse to accept or use information from private sector evaluations that identified the child as needing special education services; or they

Decided that the real problem is that the child isn’t learning disabled after all but is emotionally disturbed, so they decided to change the child’s special education program and placement, or they
Did everything that can be expected of a school and it is not their fault that the child is choosing not to acquire the necessary skills to be an independent, self-sufficient member of society, despite the intellectual ability to do so; or they
Decided to provide the same special education services and program that the child has received for years, insisting that the child is “really making progress” although the child can barely read or write; or they
Insist that the child’s increasing misbehavior is unrelated to neurological or educational issues (causal relationship) and that the child’s acting out or withdrawal problems must be resolved before anyone can expect the child to learn. Suspensions from school have increased and expulsion is the next step; or they
Scheduled a meeting but did not notify the parent until the last minute. The parents don’t know if they should attend the meeting, or take an attorney, since the school decided to discontinue special education services because:
The child received maximum benefit from special education, although the child hasn’t been taught basic reading, writing, and/or arithmetic skills.
The child hasn’t benefited from their program and doesn’t really need special education.
The school district is having budget problems and/or staff resigned or did not have their contracts renewed so it’s better that the child not be in any special education program.
The school can’t provide the specific services the child needs. The parent should respect the school’s limitations.
Their new evaluations show that the child’s real problem is lack of motivation, or a dysfunctional family, or parents with marital problems which are not educational issues.

Parents of children with disabilities feel confused, guilty, frightened, frustrated, and helpless. When confronted with a crisis at school, the parent’s normal response is usually a big mistake.

Emotions cause parents to over-react or under-react. After you read this article, you’ll have a different perspective on school problems. You’ll have a long-range plan. You’ll 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 child’s problems. Instead of improving, the child’s problems got worse.

At the onset of a crisis, parents feel overwhelmed. They don’t know what to do. Time is running out. This creates a sense of urgency, and a crisis is born.

Feelings of Betrayal

Early in the child’s school career, most parents trust the advice and recommendations they receive from school staff.

What happens when these parents learn that their child has fallen further behind in a special education program that was recommended and provided by the school? From their perspective, the school’s educational program damaged their child. Under these circumstances, feelings of anger and betrayal are almost inevitable.

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.

School 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 can’t 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 plaintiff’s attorney does not make a financial settlement demand on the defendant’s insurance carrier, claims agent or attorney. Before taking any offensive action, plaintiff’s 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 opponent’s 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.

Outcome Prediction

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:

The quality of the attorneys;
The law and facts of the case;
The individual who decides outcome.

Do you remember the litigation between Rodney King and the Los Angeles Police Department?

Rodney King’s 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 King’s 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 King’s cases were very different.

First Variable–Quality 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 Variable–Law and Facts

In Rodney King’s 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 King’s 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 Variable–Individual Who Determines Outcome

Hidden factors” are often more significant in outcome prediction than the law and the facts. It’s not unusual for a judge, jury member, or hearing officer to unconsciously identify with or against a plaintiff, defendant, or attorney. An individual’s 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”

Let’s 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 don’t know where the high ground is, is more damaging in the end.”

Initiating a suicide charge up the enemy’s 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

A crisis hits! What should you do? For the first few days, DO NOTHING!

During a crisis, parents are emotionally overwhelmed. Feeling threatened, they believe they must DO SOMETHING! They shoot wildly from the hip before aiming, expending all their ammunition before the opposition fires a shot. When the opposition opens fire, the parent is exposed and vulnerable.

SLOW DOWN!

Think first, act later. Regroup. Analyze the battleground. Make rational decisions about the weapons to use. Locate the high ground. Plot your strategy so you can take the hill and prevail, without firing a shot or taking casualties.

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 child’s disability, how your child learns, and how your child should be taught. Your program of self study includes several steps.

Join Special Education Organizations

Join several 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.

When you join several organizations, you immerse yourself in information about disabilities, handicaps, legal rights and responsibilities, tactics and strategy, and educational remediation techniques.

You will find a directory of special education organizations and information groups on this site.

Here is a short list of special education organizations.

The Learning Disabilities Association of America (LDAA), 4156 Library Road, Pittsburgh, PA 15234. (412) 341-1515.
Web: http://www.ldanatl.org/

The 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.)
Web: http://www.interdys.org/

Children and Adults with ADD/ADHD (ChADD), 8181 Professional Place, Suite 201, Landover, MD 20785. (301) 306-7070.
Web: http://www.chadd.org/

The ARC (formerly the Association for Retarded Citizens), 500 E. Border St., Suite 300, Arlington, TX 76010. (817) 261-6003.
Web: http://www.thearc.org/

The Association for Persons with Severe Handicaps (TASH), 29 W. Susquehanna Ave., Suite 210, Baltimore, MD 21204. (410) 828-8274.
Web: http://www.TASH.org/

United Cerebral Palsy Association, 1660 L Street, NW, Suite 700, Washington, DC 20036. (800) 872-5827. Web: http://www.ucpa.org/

National Association for Down Syndrome (NADS), P.O. Box 4542, Oak Brook, IL 60522-4542. (708) 325-9112.
Web: http://www.nads.org/

Autism Society of America, 7910 Woodmont Ave, Suite 300, Bethesda, MD 20814-3015. (800) 3 AUTISM or (301) 657-0881.
Web: http://www.autism-society.org/

The Tourette Syndrome Association, 4240 Bell Boulevard, Bayside, New York 11361-2820. (718) 224-2999. Web: http://tsa.mgh.harvard.edu/

Alexander Graham Bell Association, 3417 Volta Place, N.W., Washington, DC 20007-2778. (202) 337-5220 (Voice/TTY).
Web: http://www.agbell.org/

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 child’s 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 child’s 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

The special education regulations are included in Wrightslaw: Special Education Law.

You can also download the regulations from the Law Library at the Wrightslaw site. The special education law and regulations are also available from the U. S. Department of Education website

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

There are 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.
URL: http://www.versuslaw.com/

For caselaw, try FindLaw

You can get the Code of Federal Regulations from various government sites.
URL: http://www.access.gpo.gov/nara/cfr/

Ask your local law school if they subscribe to the Individuals with Disabilities Education Law Reporter (IDELR). The IDELR has a “topical index” that will include cases that relate to your legal issue.

Subscribe to The Special Ed Advocate, the free Internet newsletter about legal and advocacy issues published by Wrightslaw.
URL: https://www.wrightslaw.com/subscribe.htm

Define Your Legal Issue Correctly

Few parents define their legal issue correctly. For example, parents often contact us because the school isn’t providing accommodations and modifications and the child is failing.

When we review the child’s file, we realize that there has been little progress in reading, writing, spelling, and math skills. Although the child needs remediation, the parents and school are battling about accommodations and modifications. If the child receives appropriate remediation, the child may not need modifications and accommodations later.

Modifications and accommodations are not acceptable substitutes for teaching basic skills. Most special education disputes fall into one of four categories.

Eligibility

Although the child has “red flags” and educational problems that suggest a disability, the school hasn’t found the child eligible for special education.

Some states use rigid “discrepancy formulas” to decide who gets help and who is turned away. Many school districts balk when parents provide them with evaluations and recommendations from private sector experts. When schools ignore these problems, children “fall between the cracks” of the system, often with tragic results.

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 don’t meet children’s diverse needs. If the child isn’t benefiting from the program, the child isn’t receiving an appropriate education.

Failure to Follow the IEP

Although the child has an IEP that includes a commitment to provide services, the school isn’t following the IEP. In many cases, the parents don’t know the child isn’t receiving services unless other problems emerge.

Discipline

Many public schools have adopted “zero tolerance” policies. With zero-tolerance policies, the punishment generally doesn’t fit the crime.

Instead of exercising discretion about whether a child poses a threat, school administrators are suspending and expelling children for minor offenses. In many cases, the children’s misbehavior is a direct result of their disabilities.

Learn About Special Education

You need accurate information about your child’s 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.

Visit our Free Stuff Page for links to free books and free newsletters.

Here 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).

Council for Exceptional Children, the site for special educators is at http://www.cec.sped.org/

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

Call the 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.

Use our Directory of State Departments of Education to find the web address.

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 Child’s Records

Request a complete copy of your child’s cumulative and confidential files from the school and from the administrative office where the special education department is located.

TIP: Get sample letters in the Tactics & Strategy Section of this site.

Request a copy of your child’s 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 child’s file and test history. Ask your consultant to teach you about the significance of your child’s test scores, using the Bell Curve.

If your consultant is willing, tape the session so you can review it later. After the consultation, review your child’s test data using the Bell Curve.

Learn to Measure Educational Progress

To measure your child’s educational progress or lack of progress (regression), you’ll 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).

Grade equivalent scores (GE): information about your child’s skills, when compared to other children in the same grade.

Age equivalent scores (AE): information about your child’s skills, when compared to other children the same age.

Percentile rank scores (PR): information about your child’s progress (“closing the gap”) or regression (falling further behind).

When you use statistics, you can measure educational progress and regression (lack of progress). Most special educators haven’t studied statistics. In most cases, the individual who interprets your child’s 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 psychologist’s 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, you’ll 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

You must keep your emotions under control!

If you confide in school staff and share your feelings with them, you become vulnerable. If you obsess about unfairness and revenge, it is easy to shoot yourself in the foot.

Spend your energy thinking, planning, and preparing. Preparing makes it harder for you to shoot yourself in the foot. Put your emotions in a backpack and use them as a source of energy to motivate you. Your emotions will keep you moving, step by step, to high ground. For more about this subject, read the article From Emotions to Advocacy on this site.

Your Short-Term Relief

Now, it’s time to look at short-term relief. Put your child’s 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 Child’s Self Concept

Here is an exercise you can use to begin mending your child’s 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 child’s problems and develop a comprehensive plan to address these problems. Before you can make good decisions about your child’s special education program, you need accurate diagnostic information about the child’s 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 school’s position. The comprehensive evaluation should be done by an independent expert in the private sector. View this as an investment in your child’s future. A comprehensive evaluation will give you a roadmap for the future.

Examine Your Personal Beliefs

Examine your beliefs about your child and your child’s disability. Do you feel sorry for your child? Do you feel guilt about your child’s 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 child’s disability, educational and remediation techniques, how to measure educational progress, IEPs, and how to artfully advocate.

You are not alone. Other parents have traveled down this road. They walked down the same paths.

Follow in their footsteps. Build a network of people who can help. Connect with other parents – they are your best resource.