Ask Anne is a patron-supported program on Patreon in which KPS4Parents’ CEO and lead advocate and paralegal, Anne M. Zachry, M.A. Ed Psych, answers questions submitted by parents of children with special needs, professionals who work with special education students, advocates and attorneys for children with special needs, and others with questions about how publicly funded special education is supposed to work.
With more than 30 years of field experience advocating for children with special needs, designing and evaluating individualized educational programs, supporting attorneys in special education and disability-related complaints and litigation, and filing complaints with state and federal regulators, Anne has insight into the technical requirements, evidence-based practices, and public education agency politics.
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One of the issues that I haven’t seen discussed anywhere else, but am seeing first hand every day, is the impact that the shutdown has had on my students with disabilities whose parents also have disabilities. Given that so many learning disabilities, physical impairments, Autism spectrum disorders, and mental health conditions run in families, it’s not surprising to find children on IEPs whose parents also have disabilities. It would be shocking for a professional in this field to not see that phenomenon.
The shutdown negatively impacted students and their families from all walks of life. Students on IEPs were hit more hard only because they were already at a disadvantage and largely under-served before the pandemic hit. All shutdown did was magnify the pre-existing inequality.
To that end, parents with disabilities who were already getting jerked around by their local education agencies have been disadvantaged and exploited even further during school shutdowns. I’ve got two cases on my caseload, right now, that immediately come to mind. One is in California and the other is in Missouri, and in both cases I’ve had to serve as both a reasonable accommodation for the parent with disabilities as well as do my normal job of advocating for the student with disabilities.
In both cases, a bunch of goons from the respective school districts tried to railroad learning disabled parents who struggle to understand the relevant documents, saying one thing verbally, putting something else in writing, and hoping these learning disabled parents didn’t notice. The parents’ federally protected rights as per the Individuals with Disabilities Education Act (IDEA) to informed consent and meaningful parent participation in the IEP process are additionally compromised by violations of the parents’ rights under Section 504 of the Rehabilitation Act and the Americans with Disabilities Act (ADA).
Here’s what I need everybody reading or listening to understand: The states involved here are Missouri, a red state practically overtaken by domestic terrorists bent on sedition, and California, a blue state with mostly progressive leadership. This is a non-partisan issue. There is no political party that seriously cares about people with disabilities, even though disability cuts across every swath of human existence that there is. It’s beyond dysfunctional, but that’s our profoundly sick society, for you.
So, what do we do about this? Well, on an individual basis, the steps of effective advocacy remain the same: get the truth on the record, request remedy, and file complaints if the local education agencies don’t abide. The number one protection parents with disabilities have under the ADA relevant to this issue is their right to communicate via their preferred form of communication. Reasonable accommodation isn’t limited to wheelchair ramps, and honoring a learning disabled person’s communication preferences is just as important as honoring the communication preferences of someone deaf or blind.
For parents with disabilities, it is important going in from the outset that you make clear in writing that you require reasonable accommodations from your local school district, including what your communication preferences are. It doesn’t hurt to add language like, “These accommodations under Section 504 and the ADA are necessary to insure my protected rights to informed consent and meaningful parent participation in the IEP process pursuant to the IDEA.”
If you have been keeping your need for accommodations to yourself for fear of being judged by the school district members of your child’s IEP team, something is seriously wrong. If you fear that people employed specifically to educate humans with disabilities are going to give you grief because you are a human with disabilities, either you’re insecure, working with a-holes, or both. You do yourself and your child no favors by not putting your local education agency on notice about your need for accommodations; if they treat you poorly, that’s on them for violating your rights as well as those of your child.
It’s stronger to go in asking for reasonable accommodations as your legal right given that you are there to protect your child’s right to reasonable accommodations. If you acquiesce on one, you’re acquiescing on the other. You have to believe that all people with disabilities are equal in power and voice to people without disabilities, including yourself. You are not setting a good example for your child to become a strong self-advocate in spite of disabilities when you fail to advocate for yourself.
Aside from what individual parents with disabilities do on a situation-by-situation basis on the ground, at this point, the only mechanisms available that have any chance of broadly changing anything are judicial and political. Parents need to sue over the civil rights violations that undermine their advocacy for their children so that public education agencies are held to account under every letter of the law that applies. All parents of children with disabilities need to unionize and collectively bargain for improved special education laws and access to special education resources.
In theory, parents with disabilities involved in the IEP process for their children may be able to concurrently file 504/ADA claims in federal court purely on the basis of the discrimination against themselves while filing for due process under the IDEA to assert their children’s claims. However, there’s a kicker that my colleagues who are licensed members of the bar should weigh in on, here.
With respect to informed parental consent and meaningful parent participation in the IEP process, the related civil rights claims may have to toll while due process is being pursued because a special education hearing officer has no jurisdiction with respect to 504/ADA but administrative remedies under the IDEA have to be first exhausted before related civil rights claims can be pursued. Basically, you have to do everything you can with due process before you can go on to federal court on related civil rights claims.
The reason civil rights claims often must toll pending due process is because the hearing officer in the due process case may order something to correct the special education violations that inadvertently cures the civil rights violations at the same time. This makes it unnecessary to get that same outcome from a federal court judge and, thus, a waste of judicial resources to try the same thing in two different venues. However, if the civil rights claims can stand alone on their own with no related due process claims associated with the same body of facts, it’s possible to go forward on civil rights claims while other claims are being adjudicated via due process.
Again, this is a tricky question of law and I defer to my colleagues who are licensed members of the bar to speak to the particulars of 504/ADA claims versus IDEA claims, as well as the order in which issues are tried and by whom. The point is that there is recourse, one way or another.
Parents with disabilities should not feel compromised in the IEP process. No parent should fear that a body of public servants educated, trained, and employed to support the needs of individuals with disabilities in the school setting will use that knowledge to exploit the parent’s disabilities to the detriment of the student. The very idea is reprehensible, but it happens every day.
Institutionalized biases have a lot to do with it. Even people employed to educate students with disabilities will regard a parent’s disabilities as character flaws, more often than not. It’s a learned, knee-jerk reaction that all of us have been raised with to one degree or another our entire lives. It’s why people with disabilities are often also plagued with self-loathing and related mental health disorders. Most people with disabilities aren’t born with self-loathing and mental health disorders; they are acquired from the experiences of being rejected by everyone else and seeing a world that is basically designed to exclude them from participation. Things that can be acquired can also be let go and replaced.
During distance learning, these issues became even more painfully apparent as schools shut down and children with special needs had to stay at home and participate in distance learning. Setting aside the degree of forgiveness due to actual teachers for not being given appropriate tools and support from their respective agencies to handle the situation, something cohesive should have been in place within the first few weeks, but I’ve still got school districts pulling ridiculous stunts and we’ve got partial campus re-openings going on around here, right now.
We’re now more than a year into this thing and, not only have they not gotten their acts together, they’re actively making excuses as to why the broke the law 40 million different ways before now. If they invested half the energy they’ve spent on making excuses and lying to the public into actually solving the problem, it would have been solved by now.
The politics of it all is at the heart of this issue, unfortunately. This is just as serious as domestic terrorism, because it’s actually one of many expressions of that terrorism. When parents with disabilities are terrified of the people to whom they send their children with disabilities every day, often with the threat of criminal prosecution for truancy if they don’t, they are being manipulated through fear to acquiesce on issues that, under the law, require their consent.
It is important for those of us who are working in the civil rights arena to recognize that we will find the students with disabilities we serve also among other marginalized populations that may have a stronger degree of activism already underway. For example, if a child with disabilities and African-American heritage is being jerked around, it may be more effective to bring a representative from the NAACP to an IEP meeting than a disability advocate. Likely, the best solution would to bring both.
This is an issue that child and family advocates need to address because it is vast, pervasive, and significant. When it comes to dumping the instructional responsibilities for a child with disabilities onto a parent with disabilities, the civil rights claims can easily multiply. I have had three cases this year involving parents with disabilities who were getting played by their local school districts until I said something. One case is resolved and the other two, which I mentioned at the beginning, remain active.
In every case, not only were the parents with disabilities being inappropriately burdened like all other parents during shutdown, they were not offered any reasonable accommodations to do so. In my mind, this is an enormous class-action issue that could result in entire state departments of education, which are ultimately responsible to the federal government for complying with the IDEA in exchange for federal special education dollars, getting nailed to the wall for failing to ensure local education agencies provided reasonable accommodations during shutdown to parents with disabilities who were attempting to instruct their children at home or who simply could not, resulting in a deprivation of educational benefits to their children.
I am very curious to get parent, advocate, and attorney input on this issue. If you have experienced anything like this, either as a parent or professional, and have ideas on how to lawfully resolve these issues with the least amount of trauma to the involved children and their families, we’d love to hear from you. For those employed within the system who want to do the right thing but are being prevented by others within the system, your feedback is appreciated as well.
The news is replete with evidence that far too many public servants can’t be trusted to uphold the rules of democracy. Because the IDEA is so dependent upon the application of science to the lawful implementation of special education, it tends to be those who disregard science and law who pose the biggest threat to our children with special needs.
Given how many Far Right conservatives there are employed within public education, the fact that the domestic Far Right is the greatest terrorism threat that our country faces, and that neither science nor the rule of law mean much to the Far Right, it’s not that hard to see why we need to get the Far Right out of our public school system. The Far Right is why civil rights laws are necessary in the first place. They’re not going to do the right thing because it’s the right thing to do. They don’t even understand what that means. They’re going to do whatever serves their selfish motivations.
People who follow the extremes at either end of any social spectrum, including politics, tend not to have fully functional prefrontal cortices, based on my observations. They lack the deductive reasoning skills to understand the big picture. They lack the perspective-taking skills to see things from anyone else’s point of view. They are egocentric in thought and grossly emotionally under-developed. They are prone to extreme actions and reactions based almost entirely on their own wants and needs.
In the special education setting, if you and your child’s needs don’t align with the agenda of people with this mindset, you don’t even exist to them. You’re like a person with a numbered ticket at the deli counter. They’re going to interact with you briefly and smile to your face, then forget you exist five minutes later. You’re a thing, not a person, to people like this. They don’t think of anybody as another “person.” Everybody else are just things to conveniently access when they serve a useful purpose to people who think this way. That is why holding them accountable after the fact is more effective than logical or emotional appeals made in an effort to prevent something bad from happening.
All of this is, of course, disordered thought. So, basically, what this comes down to is a bunch of mentally ill, self-serving individuals getting paid six-figure annual incomes at taxpayer expense to manifest their untreated and unaccommodated symptoms at the expense of their constituents. What we’re really looking at is the symptoms of untreated mental health disorders being manifested as public policy to the detriment of individuals who are not in denial about the fact that they have disabilities attempting to advocate for their children with disabilities.
The most apparent difference that I can see between the two sides of the issue is that the people within public education responsible for this situation don’t think there is anything wrong with themselves; they think they are the chosen ones and everyone else exists just to give them an excuse to collect a paycheck. When the special education community finally addresses the degree to which schizoaffective, personality-disordered administrators and the like are behind the egregious abuses of disability-related laws it experiences, and we use our science to heal ourselves, we’ll be able to actually use the science to heal our children and help them build productive futures for themselves.
On November 4, 2020, I interviewed attorney and author, Catherine Michael, of Connell, Michael, Kerr, LLP, a special education law practice with offices in Indiana and Texas (https://cmklawfirm.com). Catherine’s book, The Exceptional Parent’s Guide to Special Education, will become available on December 1, 2020 and can be pre-ordered at https://amzn.to/38euWaD.
The following is the transcript from the interview (transcribed using Otter):
Anne Zachry 00:00
First of all, thank you so much for being on this podcast with me, I don’t get to interview folks very often, and it’s always fun when I get to. And it’s always very informative, because I think having all of us who do this kind of work, you know, talking these things through out loud, and just speaking to what’s going on and how we think that’s going to affect the the students that we work for, and the families that depend on us, I just think it’s a really constructive use of time. So I really appreciate you being here. If you could, just introduce yourself and give us just your background, your history of how you’ve come into this line of work and what it is that you do now.
Catherine Michael 00:33
Oh, yeah, absolutely. So, my name is Catherine Michael. I’m the managing partner of a law firm called Connell Michael Kerr. And we work in a multitude of states and have attorneys licensed in in several states as well. And what I do is, and for the past 20 years, I’ve worked in education, law or representation of children. And, and a lot of that involves filing educational due process cases against schools, personal injury, tort actions against schools, and sometimes group homes, residential facilities, and also advocating for children with special needs, for instance, the legislatures in several states, and at a national level. And, you know, I got into this line of work. My background had been in hospital risk management. And I got into this, because we were seeing a lot of children who had really substantial issues, whether they had a diagnosis of cancer, and we’re now getting cranial radiation or having a tumor removed. And we saw how uncooperative schools were. And back then it was really quite shocking to me that we would find a school district who wouldn’t want to provide a child a homebound program or a school district that would claim that cancer is not a disability, and this child doesn’t need to be eligible.
Anne Zachry 01:51
Oh, my gosh!
Catherine Michael 01:52
That was really – Right! That was really fascinating to me, because as someone who had not worked in education, at that point, and was working with hospital systems, that was really shocking, because I think all of us believe that our procedures, tools are supposed to be very pro child, they are there to ensure educational services for children. And, you know, the first case I took was a child who had cancer, and was just really, really surprised how hard it was to get that young man a program. And thereafter started taking cases involving children who had learning disabilities, and really finding how substantial a need this was. And it had a snowball effect and has kept me in it to this day.
Anne Zachry 02:36
Well, yeah. And a lot of us come into this, who are professionals from these paths where we encounter these challenges. And we’re like, “Wait a minute, what?” And then we see how the system is constructed, how it’s been designed, and what the rules actually are. And so I would imagine coming from a medical scenario, I mean, in the medical realm, you bought insurance billing rules, and all those kinds of things until there’s somewhat of a similarity in that you’ve got this compliance standard that has to be met, in order for things to happen. And when you look at what those rules are in special education, and, you know, and you understand what the intent may have been. But then, and you and I spoke briefly of this before we started the interview, that enforcement is really the question here. So if you could speak about that, that would be …
Catherine Michael 03:29
Yeah, enforcement is a huge issue. And I think that because there is so little enforcement of the laws on the books, we’ve have found that basically schools have run amok. And so for parents who are listening, the main law is the Individuals with Disabilities Education Act, and that is a federal law, which means that every state has to follow it. They can’t have a state law that restricts any of the rights under a federal law. And every state in the United States has basically what we call “codified” that law into their own state laws, the only thing that they can do is add additional rights for parents. For instance, the state of Michigan actually extended how long the student can be in special ed. So it is age 22 under the federal law. Michigan made it 26. Other states change, for instance, when a parent requests an independent educational evaluation. California, basically has that if a parent request an independent educational evaluation, that the school gets a reasonable time to respond. Other states like Indiana say a school has to respond within 10 days. So there’s some of these minor changes in the law that are that are supposed to in some states like Indiana or Michigan, give those parents additional rights. But also the way these laws are designed, is that the only enforcers of them are parents. That means the parents are basically their own private attorneys general; that parents are the equivalent of the cops on the road with the radar to catch the speeding cars. Your State Department of Education is not going to be looking over your child’s IEP and saying, “Wow, your child has a lot of issues and they only have one goal,” or “They’re not receiving any direct speech services,” or “They’re not receiving any direct special educational services,” or “Your child shouldn’t be in a special education room all day long; that there’s something called the ‘least restrictive environment,’ which says we need, to the maximum extent we can, have them with their general education peers.’ So what I think a lot of parents don’t realize is, your State Department of Education isn’t doing that. Your federal Department of Education isn’t doing that. No one has that obligation to enforce these laws, other than the parent bringing a private action called an educational due process complaint. So schools have all of these laws under IDEA. And just to give, you know, for parent, I’m sure if if you’re listening to this podcast, you probably have a basic overview of it. But IDEA has requirements for what’s called a free appropriate education. And that basically encompasses that your child is going to have an IEP, that has challenging ambitious goals, in light of their circumstances, that has related services. Related services would be counseling, social work services, parent training, speech therapy, occupational therapy, physical therapy. The least restrictive environment: That if your child needs a one on one aide in order to be in a general education environment, they’re supposed to do that versus moving your child to a resource room. If your child needs a therapeutic day placement or residential placement, that’s also to be provided by the school. There are all sorts of procedural safeguards. If a school refuses your request, let’s say for a one on one aide, or a specialized program for dyslexia, they actually have to provide you written notice saying what data they’re relying upon to deny this, everything they’ve considered, and they have to provide this to you in writing. So there are all these laws on the books, okay. And regardless of where you live, when we say IDEA, it’s that federal law, this applies to you, and it applies to your child in a public school. And as you know, going back again, but the only enforcer of this law, the only enforcer who can actually call a school to tap on it is you as a parent and that mechanism, as I said a second ago, it’s what’s called an educational due process complaint. And that’s a complaint that is filed with your State Department of Education, a state appoints a hearing officer to determine if that program is in place. And you know, something we discussed before we started as well is that most parents have no idea that they have these rights. And that most of these laws are right now not being enforced. There are some states where there is less than one due process case a year. So when schools are developing these IEPs, being that there’s no real enforcement mechanism, other than in some states like the timeline, they have to have it a yearly meeting, we’re seeing really horrible consequences of that, I think across the states.
Anne Zachry 08:27
Well and then now that with school closures and shutdowns, that certainly hasn’t improved things at all. And so what are you seeing?
Catherine Michael 08:36
It hasn’t.
Anne Zachry 08:36
What are you seeing now, that’s different than before the shutdown started?
Catherine Michael 08:40
I think the biggest problem I’m seeing is a complete lack of services. And that is where school districts, for instance, that have gone entirely virtual, have students who are just not able to access the services, they may be so cognitively impaired, they’re not able to do a computer program
Anne Zachry 09:01
Right.
Catherine Michael 09:01
In some of those cases, I’m seeing schools basically just throw up their hands and say, “Well, you know, when we come up with a program, we’ll let you know.” And that’s really contrary to law. And there are a lot of things that parents need to be doing right now. That is one of the biggest problems. The other one is where parents whose children are getting, for instance, speech therapy. The school’s saying, “Sorry, we can’t provide that right now.” And in fact, they really can. I mean, virtual speech therapy has been done for years and it’s something that should be being done.
Anne Zachry 09:35
Right.
Catherine Michael 09:36
And then lastly, I mean, we’re seeing schools where kids are coming back to school, but we’ll have a school that that, you know, I think for good reason has a mask mandate, but they don’t understand that there are clearly going to be children who cannot wear masks, right?
Anne Zachry 09:52
Right.
Catherine Michael 09:52
They are too cognitively impaired or they have really significant health issues. And I’ve definitely seen a lot of those issues crop up, which is really quite shocking to me. Because some of these situations, you know, quite honestly, when we look at a child who for instance, has a tube down their throat, the fact that a school would even argue with a parent as to whether they’re going to try and put a mask on this child is shocking.
Anne Zachry 10:21
Right.
Catherine Michael 10:21
They’ll tell a parent that a child can’t come to school. So that I think has been another one of the really big issues.
Anne Zachry 10:28
Yeah. And we’ve what we’ve run into out here in California is it’s hit or miss, it depends on the school district as to whether they’re going to do the right thing or not. And but we have some school districts that are just flat out refusing to do any in-person services at all, under any circumstances, even though we have the governor’s order that came out in April that said that any student that required in-person services in order to continue to learn and to receive educational benefits, just as a matter of FAPE, that those in-person services still had to be provided and the people who would do it would be considered essential infrastructure workers. But we have districts saying that, “Oh, no, there’s something else that came out in July that says we don’t have to do that.” And it doesn’t say that at all. And so they’re just waiting until they get court ordered to actually do it before they’ll comply. They’re waiting for somebody to pull that trigger. They’re not willing to assume the risk. It’s a risk management decision. They don’t want to assume the liability of choosing to do it, and then have somebody gets sick and say, “You made me go to work, and then then I got COVID.” And then they’re going to turn around and sue the school district as the employer. And so what we’re seeing is that a lot of it has to do with human resources issues, and unionized employees and, you know, rightfully insisting on safe ways of getting things done, and satisfaction not being achieved at that level, which then impairs the system’s ability to carry out its mandate, because the workers it relies upon, there’s no agreement as to how they’re going to do it. Until they get court ordered, they’re just not gonna. And so that’s what we’re seeing out here. And it’s weird. And I’ve also got OCR complaints and state compliance complaints as well pending because the due process system is now so flooded that, you know, the attorneys I work with can’t file anything new until March. And so it’s like, Okay, well, we got to find other avenues to still somehow enforce all of this and a compliance investigation, or an OCR investigation has a 60 day timeline. So at least that’s something.
Catherine Michael 12:27
Yeah, well, and I think that is, again, part of the big problem, here. It’s just when we have schools that they know that the consequences to them are going to be really minimal, that’s why we’ll often see them wait for court orders versus getting creative. So when I say getting creative, we’re seeing two are not able to serve, for instance, cognitively impaired kids, they have problems where they are not able to get the personnel in and not keep them safe. They can actually pay for a private therapeutic day placement, they can offer a parent sort of what we would call a continuum of services and placements …
Anne Zachry 13:02
Right.
Catherine Michael 13:03
… which is one of the requirements of federal law. And they can actually say to a parent, look, we do not have the infrastructure right now, or we don’t have the ability to serve this child, here are four or five private placements that we can contract with, if that’s something you’re interested in. So and we see that happen in some places, and we don’t see it happen in others.
Anne Zachry 13:22
We’re seeing that also with non-public agencies being able to provide in-home services like behavioral services.
Catherine Michael 13:28
Yeah.
Anne Zachry 13:28
Yeah, same thing.
Catherine Michael 13:30
Yeah, I’m actually a big fan of that happening. When I see school districts that are really willing to think outside of the box to say, “Well, we have an absolute obligation to serve these kids. How do we do it?” Right? Where they’re actually looking at it more along the lines of: “This is our job, this is our role, how do we perform it, even if we don’t have the personnel right now?”
Anne Zachry 13:52
Right.
Catherine Michael 13:52
And so when I, certainly when I see school districts going above and beyond like that, and situations where, you know, you can see how difficult it is. I mean, I’m looking at those districts and saying, you know, at least they’re making these attempts, but, you know, the, the problem we see over much of the country is school districts basically saying if a parent, if, after all this is done, brings a due process, our worst case scenario is we’re just going to have to provide compensatory education. So I’m seeing some school districts, really, you know, as I said a moment ago, not provide anything.
Anne Zachry 14:29
Right.
Catherine Michael 14:29
And so, you know, if you’re a parent who’s listening to this, and you’re saying, you know, my school district may be providing part of the program, or not any of it. I mean, the thing you need to be doing right now is documenting it.
Anne Zachry 14:41
Yes!
Catherine Michael 14:42
Because you are absolutely going to have a claim for those compensatory hours that your child should have been getting. So if your IEP had your child receiving 124 minutes a week of what we would call sort of direct special educational services like we would expect to see it you’re talking about a child with a specific learning disability, who is getting some of that one on one reading intervention or math intervention, those are the minutes that are going to be ordered. If you have a situation where your child’s not receiving that, or they were in a resource room, and we’re talking about full time special ed placement, they’re not able to access a computer, what you’re going to want to do is just really document those hours that you’re missing. Email the school, your child’s school, and ask, you know, again, if your child’s not receiving anything, what options are available? You know, if they don’t have the infrastructure, are they going to offer a private therapeutic day placement or a home based placement at this point? And that’s, you know, sending it for instance, a registered behavior technician, or if your child has autism, a BCBA, or you know, another individual who’s trained in that, you know, behavior modification into the home to work on the child’s behavioral goals, social skills goals, academic goals. What is the school able to do at this point? And you’re certainly going to want to ask those questions. And you’re going to want to push because, again, it’s their absolute duty to be providing this right now. To the extent that they are unable, there are rural areas where, you know, there are no ABA centers are out there …
Anne Zachry 16:14
Right.
Catherine Michael 16:15
… no spec ial day placements, there are no private placements, quite honestly. And we have schools that are saying, you know, “We don’t have enough staff,” you know? It’s really a very, very problematic situation for families in those places. And that’s where the parent just really needs to be documenting to the best extent they can you know, what skills their child is losing how many minutes that their child isn’t receiving, what they’re doing, any costs that they are right now incurring. Like for instance, for parents who are having to go out and buy educational items, these are all things that you’re going to want to keep track of as a parent so that as things return to normal, you can sit down initially with your school at an IEP meeting and say, we need to plan for the compensatory services, number one. Number two, here are the costs that I had to privately pay that I’m asking to be reimbursed for,
Anne Zachry 17:05
Right! Well, and I don’t know how other states are doing it, but in California, one of the things that we had a Senate bill pass over the summer, that now requires all IEPs to have a contingency plan and emergency plan for his schools shut down for emergency reasons for 10 or more days. And so now, and hindsight being 2020, obviously, that should something else ever arise, like another pandemic, or whatever that would, or, you know, a natural disaster that would require a school closure for 10 or more days, that there is already a backup plan of what to do for each kid …
Catherine Michael 17:40
Yes.
Anne Zachry 17:40
… on IEP. And so I don’t know that other states have codified anything like that. But California has. And I think that’s very valuable. And the same body of law that produced that I believe, also produced a requirement that there’s going to have to be an analysis of how much compensatory education every special ed kid in California is due, because it’s assumed that everybody will have suffered in some kind of way, and that everybody will have …
Catherine Michael 18:04
Yeah.
Anne Zachry 18:04
… lost services. And so it’s, the IEP teams are now legally beholden to calculate that, once things, you know, once the shutdown is over. That …
Catherine Michael 18:12
Yeah.
Anne Zachry 18:12
… varies from community to community. And I, we now have like, I’m in Ventura County, where districts are not intending to open until January, at the soonest. And then you know, you go down into other counties, and they’ve already got campuses partially opened down in Orange County. And so and some campuses are reopening for their most severely impacted students who desperately need that in-person support. And so the families have to sign all kinds of waivers and everything, but then they can go back and they’ve got all of these empty classrooms that they can spread everybody out. Because not it’s just a small number of students. And then those kids can get that individualized support. But that is like, you know, how much of this was working on social skills? And if they’re all spread apart, can we really do that? You know, and so it’s, it’s still the challenge of how do we work on the goals. And what I’ve seen too, is some kind of distance learning program where, you know, the parents are expected to be the one-on-one aide and help their students login. And they do some kind of something on the internet, but it doesn’t have anything to do with anybody’s goals. It’s just something to do. It’s just to give them a sense of routine in the absence of, you know, an actual plan, and then they get very confused. And then eventually, the goals get worked in because enough people you know, make a fuss about it, then it starts to happen. And now you switched everything up on them again. Now, the instruction is a whole new novel experience, and you’re transitioning them again, into something new that is unfamiliar. And so it just seems to me that it’s very disruptive. And it’s disheartening to see that there’s this little coordination. I mean, as many milestones have been achieved, and as many things that have been accomplished with making some of the system work, this piece of it falling down is a real disappointment, you know? And …
Catherine Michael 19:53
Yeah!
Anne Zachry 19:53
… and it’s disheartening, but I think that parents need to know that there are people like you and me out there who understand it, and we’re trying to fight it, we’re trying to help them. And it’s not a lost cause; that there is help out there. If you could share about your practice, once again, that would be very helpful.
Catherine Michael 20:12
Yeah, so my law firm is Connell, Michael, Kerr, and I am licensed in Michigan, Indiana, and Texas. And our website is www.cmklawfirm.com, and I also have recently, and I believe it’s due out either in December or January, I’m not sure on the date. But I do know that we’re having pre-orders. That’s the Exceptional Parent’s Guide to Special Education, where I basically have, you know, put all of my advice on how parents should navigate this system in one place. Everything that I go over with parents in consultations, how the process works, I’ve put that together and created that as a book. And so that will be due out, again, it’s either in December or January, but parents can get it through Amazon, Kindle, I believe Barnes and Noble, a couple of the others. But I know that should be available shortly. And I’ll send a link for that as well. (Note: It will become available on December 1, 2020, at https://amzn.to/38euWaD.)
Anne Zachry 21:08
Very cool. Yeah, we’ll include the link with our post so that people can access that. That’s a good thing to know.
Catherine Michael 21:14
Yeah. Because I, you know, I think the thing that parents need to remember is that they actually have power. When, you know, when I use the term, private attorney general, that parents are basically acting as though, you know, that is the main message I want to impart to families is that most accountability is going to come from families standing up together and saying,”No, we are entitled to appropriate services for our children,” and doing their research and coming to unders tand the system and asking for the things they’re supposed to be getting.
Anne Zachry 21:47
Right.
Catherine Michael 21:47
And it’s only by asking for it, and schools really being held accountable that we’re going going to see the system change. And I think a lot of parents, right, and this is all of us, right? It’s difficult to challenge people that we want to like us and parents often want the teachers to like them, they want school staff to like them. And most people who go into teaching are very, very good people, but they’re not taught the education laws, they’re not …
Anne Zachry 22:11
Exactly.
Catherine Michael 22:12
… in a lot of situations, we find, you know, teachers don’t know how to design the school for an IEP, they don’t … You know, I had a teacher in a due process hearing last week, they they didn’t know that parent training, or counseling could even be part of an IEP. So it’s really important for parents to take the horse by the reins, and learn how to navigate the system and start asking these things in a way that’s diplomatic and kind. But at the same time is assertive enough that your child is going to get what they need, because quite honestly, you are your child’s only advocate in the system.
Anne Zachry 22:48
Right.
Catherine Michael 22:48
And unless you’re asking for these things, the schools simply aren’t going to provide them. And in many, many situations,
Anne Zachry 22:55
it’s just a sad reality of it. But I mean, this also goes to the fact that in a democracy, we’re of the people, for the people, and by the people, and the parents are the people, the students are the people and we shouldn’t be afraid to take ownership of that responsibility. It’s what we all agreed we wanted to live under. That’s …
Catherine Michael 23:13
Yeah.
Anne Zachry 23:13
… the model we’ve chosen. And so I think, for me, what makes me upset most about the way it’s designed, it’s not just that it forces parents into litigation, because that’s what the rules require, in order to resolve the dispute. It’s the attitude that parents get from the school district personnel when they actually exercise that right. And the “How dare you?” and “Oh, you think you’re …” you know, whatever. And all of a sudden, the parent becomes the bad guy for simply exercising a right and following the rules, because that’s the only mechanism available to them, not because they want to. Nobody wants to do that. But if they do, you know, as someone who works with families, if somebody comes to me and says, “I cannot wait to go to court,” I’m like, “Well, okay, I hope you find somebody to help you with that, because it’s not going to be me,” You know, it’s that you shouldn’t be eager to go to court. It should be the last resort. And so when parents are forced into that corner, and that’s the only option they have left, and they exercise that right, and then they catch grief for it, like somehow they’re the bad guy, I think that’s what bothers me the most. Because it’s like you …
Catherine Michael 24:18
Yeah.
Anne Zachry 24:18
… said, you know, that the parents can be made out as, “Oh, they’re just this this disgruntled person and they just aren’t happy with anything. They’re sad about being the parent of a special needs child.” I’ve heard that one a lot. “They’re having a hard time coping and they they’re angry and they need someone to take it out on, so they’re suing the school district.” No, you broke the law and you harmed their child. That’s why they’re suing you. You know, it’s frustrating.
Catherine Michael 24:46
Yeah, and, to that end, like, I want, you know, schools as well as parents to I you know, I would so love if we could even stop thinking of due process as litigation or suing or something like that, because these parents cannot get damages under IDEA claims.
Anne Zachry 25:04
Exactly.
Catherine Michael 25:05
What you can get, right? You can recover your attorneys fees. But in these cases, I mean, if we look at them in their most simplistic nature, it’s simply the parents asking their state Department of Education to appoint an independent hearing officer to make a decision as to the appropriateness of their child’s program.
Anne Zachry 25:23
Right.
Catherine Michael 25:23
A parent doesn’t need, although I certainly wouldn’t recommend it, but a parent doesn’t need an attorney. So, you know, I will often hear from schools that, you know, this is the litigious parent who filed a suit. And I’m thinking, number one, this person hasn’t filed a suit against you. Right? A suit, you know, traditionally is a claim we would file in civil or federal court.
Anne Zachry 25:46
Right.
Catherine Michael 25:47
This is an administrative action that they filed with an administrative agency. It’s not even … so, and then we hear, you know, “a litigious parent.” Parent’s not asking for money, you know. They may be asking for what we call an “in lieu of FAPE” type of agreement where they can actually get the funds to place their child in an appropriate program.
Anne Zachry 26:05
Right.
Catherine Michael 26:06
But I think that is a mindset that we really need to have get schools over and also get parents again, thinking that if you have a problem with Social Security, or you had a problem with your child’s Medicaid, you file an administrative action to get that corrected. Right? You file with, you know, your federal Social Security office, “Here, I need to get this adjudicated,” or somebody who’s disabled. We don’t think about it the same way.
Anne Zachry 26:31
No, not at all.
Catherine Michael 26:32
I think if we could … right? And so to me, that has always been fascinating as somebody who does this, when, you know, I have one that’s in a hearing right now, where the, you know, the parents, quite honestly only asking for an appropriate IEP, and then assorted related services for her child. And now, you know, when the school’s attorney is speaking to us, they’re saying, you know, this is simply a litigious parent. And I’m thinking, you know, she’s not asking for a dollar.
Anne Zachry 27:00
Right.
Catherine Michael 27:00
Just write an appropriate program. So I really want to even reframe how parents think about these things. Again, schools are basically performing a government function.
Anne Zachry 27:14
Yep.
Catherine Michael 27:14
When we ask for the enforcement of these laws, it’s an administrative action. And you’re asking, you know, someone from your state simply to make that decision. Certainly, they can be appealed to federal court. And there’s all you know, all of the things that you and I often see.
Anne Zachry 27:31
Yeah. Which Yeah, I’ve gone all the way to the Ninth Circuit on some of these things and it’s just like, “Are you kidding me?” And something that you had said before we got started, as well as that how much money school districts are sometimes willing to throw in attorneys that they would never throw at services, I mean, hundreds of thousands of dollars in legal fees to fight over a $7500 education service.
Catherine Michael 27:50
Yeah. And you know, I’ve even seen that when a parent requests an independent educational evaluation. In most states, those can go for around $3500. Some states that we’re looking at California and New York, it can be higher. So I’ve seen schools go through an entire due process, arguing that their evaluation is appropriate, where they spent triple, quadruple, what it would have cost them to provide the parents the evaluation. And when you look at that, you’re really what you’re seeing is a school district saying, “We want to make this process so hard on parents that they don’t even bother to ask.” And they talk to their friends and they’re like, “Yeah, this is what happened.” And that’s not the role of a government entity, right? We shouldn’t have government entities making it so difficult for individuals to get their, you know, their legal rights met.
Anne Zachry 28:23
Right. Right.
Catherine Michael 28:38
They don’t even want to start that process. And that’s why I think it’s really important for parents to feel empowered, and to realize that what they’re asking for is supposed to already be being provided to their child. And again, it becomes their job to enforce that. And you can do so in a diplomatic way.
Anne Zachry 28:55
Exactly.
Catherine Michael 28:56
There are a lot of you know, yeah. And there are a lot of things you can do even outside of due process. But I don’t want parents to be afraid of due process.
Anne Zachry 29:03
Right.
Catherine Michael 29:03
And, I want to reframe their thinking on that topic.
Anne Zachry 29:07
I think that’s a really healthy perspective. I wish we could reframe the thinking of the folks from the school district who come in and deliberately try to make it toxic in those instances where they do. And you know, when it isn’t always that case, you’re right. I have been in situations where we’ve had to file for due process. And it’s almost one of these things where everybody in the IEP team knows that it was coming, and nobody’s surprised by it. And they’re waiting to see what happens. And it’s almost like the administration is hoping the parent will file because then they can go to the school board and say, “Look, now will you listen to me?” And because, sometimes it’s not that the department doesn’t want to do it, it’s that their hands are tied by, you know, whoever holds the purse strings, who’s not part of the IEP process, even though the team is the one vested with the authority to make those decisions. So, the politics that are going on behind the scenes become a toxifying effect. And …
Catherine Michael 29:59
Right.
Anne Zachry 29:59
… then you Have the attorneys that these individuals will hire and certain individuals, you know, birds of a feather flock together, and you’ll find people who are like minded in their view of these things. And I know that for from what I’ve seen the socioeconomic status of the community where the school district is, can have an influence over whether they will comply or not. In a school district where they don’t have the money to throw at lawyers, they’ll go ahead and pay for the service, they’re not going to fight over it …
Catherine Michael 30:27
Yeah.
Anne Zachry 30:27
… because they can’t afford to. But you get into an affluent community, especially when you’re talking Southern California where you got these little pockets of nouveau riche and their big McMansions. And they’re feeling all special because they have money and the school district people will tell them, “Oh, well, you don’t want to go through public special education services. That’s like a welfare service. You would do much better if you pay privately for the services yourself. You’ll get much better results than what we can give you because ours is publicly funded.” And so they play that …
Catherine Michael 30:58
Yeah.
Anne Zachry 30:58
… that mind trip on these wealthy parents whose identities are all wrapped up in their their newly accomplished wealth, and they play on that and these parents are taken for a ride, because then these parents are paying out of pocket hundreds of thousands of dollars for all of these specialists who were hovering, like vultures just waiting because they know it’s coming. So you’ve got, you know, you’ve got all of these parties that are financially invested in enabling that mechanism to play out the way that it does. And then you have parents who suddenly realize after, you know, they’ve broken the bank, and they don’t have all that money anymore, because it went all to private school and residential placement costs and things and to come to find out that they could have gotten all of that from the school district. But there’s …
Catherine Michael 31:40
Yeah.
Anne Zachry 31:40
… only a two year statute of limitations and they’ve been paying out of pocket for the last 10 years. And so not until they’re bankrupted by it that they realize the error in their judgment, and then they can’t go back and fully recover. And it just there’s all of these different games being played by people who seem to be similarly motivated to not serve, while taking public dollars to hold a public service position. And I think that this is as much a taxpayer issue as it is a parent issue, because like you said, we’ve already paid for these services to be provided. Those are our tax dollars. And in those are the laws that our Representatives passed in order to provide for these children. And yet, this is what we have instead. And so I think …
Catherine Michael 32:22
Yeah.
Anne Zachry 32:22
… that one of the parent advocates that I met a few years ago said she went up to Sacramento with a group of parents and sat down with state assembly members or state Senate, I’m not sure who all she met with. It was state officials, representatives. And said, you know, “When you take into account all of the people in California who have disabilities, and their immediate family members, like their parents, or you know, a spouse, do you consider them a constituency?” And he said, “No, the number is too small.” And she said, “Well, okay, what about all the people who are employed to support all of these people with disabilities and their families and their extended families? When you add all those people in, does that become a constituency to you?” And he said, “Yes …”
Catherine Michael 33:08
Yeah.
Anne Zachry 33:08
“… at that point, now you’re talking about a significant number of people.” And so what that really communicates is all of this divisiveness that we’ve been seeing in our culture where, you know, we’ve got people being pitted against each other for different ways of thinking about things and the things that make them unique from each other. And disability is no stranger to that experience. And what we’re starting to realize is that the people who are trying to divide us are a minority. And they’re easily identified, we all have a common group of individuals who are all trying to pit us against each other and turn us into special interest groups, when really we’re just the majority. And if we all …
Catherine Michael 33:49
Yeah.
Anne Zachry 33:49
… weave ourselves together and collectively advocate for each other, then we’re a constituency. And I think that …
Catherine Michael 33:57
Yeah.
Anne Zachry 33:57
… that is where we have to start thinking about these things now that it’s not, “Oh, my disability rights versus your LGBTQ+ rights.” It’s not my “My race rights versus your gender rights.” You know, it’s not a “versus.” It’s no, everybody. Everybody has equal rights. And that’s the whole point.
Catherine Michael 34:16
Yeah.
Anne Zachry 34:16
And so I think that our dialogue needs to shift in that direction. I know that I had this conversation in an IEP meeting the other day with a team, I had to file an OCR complaint. I’m like, “Look, this pandemic is not the apocalypse, you know? Zombies are not at the door.”
Catherine Michael 34:32
Right.
Anne Zachry 34:32
“Democracy has not fallen, the rule of law still applies. And at no point did public health usurp civil rights, they are equally important. So what are you guys gonna do?” And they’re just like “Uhhh!” because they don’t know. I mean, but they understood why I filed a complaint. They weren’t mad at me. They’re probably … they’re actually they’re like waiting to see what comes of it because maybe now they’ll be given permission to do their jobs. You know?
Catherine Michael 34:56
Right.
Anne Zachry 34:56
Nobody was angry about it. It was like “Okay, well, yeah,. That logically makes sense. We’ll just have to see what happens.” And so I’m not necessarily, in my situations … and of course, I have relationships with a lot of these people, because I see the same people in IEP meetings for different kids over the span of decades. So we all know each other. So it’s not like …
Catherine Michael 35:17
Yeah.
Anne Zachry 35:17
… you know, I’m going into a novel situation, and then some stranger coming in and telling them what to do. Because that can be, you know, people can become defensive and adversarial when that happens. So I have rapport, but, you know, even still, you know, the fact that I can say something like that, and everybody’s like, “Yeah, you know what, you’re right. We still are not empowered to do what you’re asking us to do.” And so that that, to me, is very frustrating, because I know that there’s people who want to do the right thing, and they can’t; they’re not being allowed to.
Catherine Michael 35:45
Yeah.
Anne Zachry 35:46
And I think that parents need to understand that too, that, you know, not everybody’s the enemy, but you got to be paying real close attention these days. I mean, would you agree, I mean, the parents just need to be …
Catherine Michael 35:56
I would.
Anne Zachry 35:56
… very discerning about who they can trust?
Catherine Michael 35:58
Well, absolutely. I think it’s, again, it’s being discerning. And it’s also it’s being educated as to what your child needs are, what you’re asking for. And then also, you know, again, understanding that you are going to be the only one who really has your child’s true best interests at heart. That’s not to say that there aren’t, you know, within school systems there are really dedicated teachers, dedicated administrators who are doing their very, very best to ensure children are being educated appropriately. But at the end of the day, and I don’t necessarily like that expression, but it really does come down to, you are always going to know your child best. And it is going to be up to you to enforce these laws.
Anne Zachry 36:43
Right.
Catherine Michael 36:43
You know, you may have a great teacher one year and not another. And again, the school’s interest isn’t going to be the same as yours, right? Theirs is going to be on their budgeting, the union, you know, everything going on, your interest is going to be on “Is my child getting an appropriate program?”
Anne Zachry 36:51
Exactly. Right. And, I mean, in terms of checks and balances, that’s why the parents are such an important part of the team, and are afforded so many rights and the protected right to meaningful parent participation and …
Catherine Michael 37:11
Right!
Anne Zachry 37:12
… informed consent. I mean, all of those privileges and rights are there, because that’s meant to be a check and balance against the rest of the system. And so, you know, if they if the parents are being bamboozled, and they are signing documents that they don’t actually understand, then those enforceable rights are not being honored. And, you know, it’s parents have to understand that they have recourse and they need to educate themselves as to what what that is.
Catherine Michael 37:36
Right.
Anne Zachry 37:36
And ask! I mean, my favorite thing is when parents say, “Okay, well, what are my rights under this circumstance?” and put it back on the school people … … to explain what their rights are, you know? And I think that that’s a good strategy, because it is the burden of the school district to explain to parents what their rights are. They’re supposed to be able to do that. And so you know, if they’ve put you the parent on the spot, the parents should feel comfortable saying, “Well, you know, what, I need to turn this around to put you on the spot for a minute, because I don’t understand my right. And I’m not sure what I can do here.” If you’re savvy enough to know, in some states, you know, how the rules play out are different. In California, all you have to do is give 24 hour written notice, minimum, and you can audio record your child’s IEP as a parent. You can’t video record, but you can audio record, and the school district can’t say no, but they also have to record as well so that there’s a backup copy. And you know …
Catherine Michael 37:42
Yes!
Anne Zachry 38:23
… just for authenticity reasons. So different states have different rules about audio recording, but, you know, I audio record every IEP meeting. One, because I have ADHD myself, and I don’t want to miss anything. And so it’s just a … it’s more of a safety net, because I very rarely have to go back and listen for …
Catherine Michael 38:23
Yeah. Yeah.
Anne Zachry 38:38
… my own account. But just to know that I can make me less anxious during the meeting, but also because, you know … … it ends up getting introduced into evidence if we do have to go to a due process hearing. And it’s been a very powerful tool.
Catherine Michael 38:44
Well, yeah. Right. And you can be clear as to what you asked for, why you asked for it, what the school’s response was.
Anne Zachry 38:58
Exactly,
Catherine Michael 38:59
I think that can be extremely helpful.
Anne Zachry 39:01
And if, you know, when you go into an IEP meeting and you do have the, you know, you’ve legally made it okay to audio record – given written notice or whatever is required – and you’re doing it lawfully, and then you go in and say, “I don’t understand my rights under the circumstance, please explain them to me,” and then the explanation they give you is either going to be a good one, or it’s going to be a bad one. And if it’s a bad one … … you know, the backup, you know, it’s like, “Okay, well, I didn’t get the right answer, but I got proof that they don’t know what they’re talking about. And I’m not crazy.” And so it becomes evidence and I think the parents and, certainly as an advocate, when I go into the to the IEP process, I’m trying to solve the problem for real in the moment but I’m also making the record along the way in case it doesn’t get resolved …
Catherine Michael 39:24
Yeah. Right.
Anne Zachry 39:28
… and so that by the time we arrive at due process, the trail … the evidence trail is clear. If when they say no their explanations are, you know, are whatever they are. And, going back to what you had said earlier about prior written notice one of the things that I’ve noticed out here is that I would say, a good third of the time when I get a prior written notice, in response to something I’ve submitted for a family, it won’t make a lick of sense. It will say prior written notice according to 300.503, blah, blah, blah …
Catherine Michael 40:14
Right.
Anne Zachry 40:14
… and have all that legalese at the top of it, and then they … it’s like a form and they’ll populate the form with a bunch of gibberish that’s just nonsense. It doesn’t even explain why they said, “No.” There’s no real explanation. I’m like, “Okay, well go ahead and make the record that this is what you’re sending out on a PWN form, and this is what you’re going to represent as PWN,” … because substantively, it is embarrassing. And just because you put “PWN” at the top, and you cite the code that you’re supposed to be following, the fact that you didn’t is reflected the document itself. And it just, it blows my mind what people will put into writing because they think they’re so clever. And it’s like, “Okay.” And so one of the things that I think is really valuable, that’s helpful for parents to know, too, is that the regulations, it’s 34 CFR section 300.320(a)(4) mandates the application of the peer reviewed research to the design and delivery of special education. When you have a bad IEP, you can say, “I want to understand the science that underpins this IEP. What peer reviewed research did you rely on to inform …”
Catherine Michael 40:34
Yeah.
Anne Zachry 41:20
… you know, and of course, they don’t have anything. And then when I ask for something specific, and I know, I can reasonably anticipate that they’re going to balk at it, because it’s something they’ve not done before. And it’s going to require them to create something new. I will cite the science that backs up the request that I am making and say specifically, the regulations require you to apply the peer reviewed research to the degree that it’s practicable. So if you’re not going to do this, when you send your prior written notice, please explain what it is about the science that is not practicable.
Catherine Michael 41:20
Yeah. Yeah.
Anne Zachry 41:23
And then they’re, they’re stumped, because they don’t know how to reply to that. And again, it goes back to the fact that they don’t actually have access to the peer reviewed research. I’ll go ahead and …
Catherine Michael 42:02
Yeah.
Anne Zachry 42:02
… spend $70 on an article just to make my point, because I can …
Catherine Michael 42:06
Yeah.
Anne Zachry 42:06
… you know, but I shouldn’t have to do that. And that’s the problem, is that we have this paywall between our educators and the science that would tell them what to do. And what is the politics behind that? Why is there a paywall between our educators and the research that will tell them how to teach our kids right? How is that not part of the public domain? Why do teachers not have access to that? And then, especially when you have a legal mandate that requires it, you know?
Catherine Michael 42:31
Oh yeah, and …
Anne Zachry 42:32
It blows my mind.
Catherine Michael 42:34
It goes to the fact that, yeah, that because the laws are not enforced, right? We’re just not seeing, for instance, when we look at health care, right, we have, you know, standards of care, best practices, we see checklists for everything with the doctors getting weekly reports on different new procedures, medications, right? We don’t see that in education, because, again, there’s so little penalty. We’re not seeing teachers, sort of, you know, given a weekly mailer, you know, here are some of the programs that we’re seeing coming out. Here are some of the best practices for working with a specific learning disability, you know, can you update off on how you’re implementing this in your classroom? We don’t see that because, again, there’s so little importance level. Yeah, I really haven’t felt the need to do that.
Anne Zachry 43:23
Yeah, well, and I’m thinking we’re overdue for a reauthorization of the IDEA. And one of the things that I would like to see in there is beefing up of that enforcement arm because they’re supposed to be what 10 year audits or something like that? That we have some kind of audit procedure in California that every once in a while somebody pulls the short straw and ends up getting audited. And of course, every time they go through there and examine all the IEPs, it’s just a disaster, but then nothing ever gets fixed.
Catherine Michael 43:48
Right.
Anne Zachry 43:48
And so it doesn’t change anything. It’s like, Oh, they just documented that it’s a disaster and moved on to the next one. And nothing got rectified. And we need to speak to that. I mean, is we’re looking at all of these broken systems that are just cracked open and expose raw and wide for the whole world to see now that there’s no covering up that our social programs are flawed, and that we need to overhaul them. And we need to bring them kicking and screaming into the 21st century with best practices and not just best practices in teaching, but in best practices in operational standards, and efficiency, and … … and security and privacy. And I know I worked in IT for a few years in these huge enterprise class computing environments like Walmart and Sanyo, and Volkswagen and all of these big huge computing environments, where you have these global wide area networks in these supply chain automated pieces. Back in the day, I’m talking like 25-30 years ago, this technology has been around for a long time. And if you look at the degrees of efficiency, and the cost savings and the reduction in overhead that is experienced by the industries that adopt all of this ISO standards and these automated supply chain things and and the internal and the way they automate their internal business operations, that California is starting to head in that direction with respect to individualized person centered planning. That there is a pilot program that’s being developed. And I don’t know when exactly it’s going to be deployed. But I know Ventura County as part of it, where, whether you’re Department of Rehab, or you’re special ed, or you’re county mental health, or you’re welfare, or you’re food stamps, or you’re Medicaid, or whatever, it’s one individualized plan, one caseworker, and your plan calls out to all the different funding sources. So the consumer is not having to chase after the funding, the funding is following the consumer through a single individualized plan, which is only common sense. But it was only achievable by marrying all of these computer systems together, that all of these disparate agencies were working autonomously with, and making them able to talk to each other. And so now we’re getting to the point where we can stitch all of our our computing resources together to create this inter woven supply chain so that we can streamline how we deliver public services and do it more cost effectively. But then what that also means is that there are no there are no dark shadows to hide in where funds can be misappropriated. There will be such a stringent degree of accountability that the cronyism and the back scratching that has gone on will no longer be enabled. It won’t be possible. And so that also will free up a lot of resources. And that is another aspect of increasing the efficiency and the fiscal responsibility of the system and the fiscal management of it. And so there are people who financially benefit from the system being antiquated and broken right now. And they don’t want those kinds of changes coming in. Because there goes all of their opportunities to exploit. We’re starting to see that public service is going through this transformation that private industry went through when this happened decades ago, as these technologies come in. And as the public pushes for a greater accountability. And as we repair and we overhaul our systems, we’re going to be using the most modern tools we have. And so I think that we can be encouraged that the future does hold a lot of potential for a lot of corrective action, and a lot of prevention of things like this happening again in the future. But we are not there yet. And I think it takes … it’s going to take all of us pushing for those reforms. Because as much as each parent needs to advocate for their child on a child by child basis, and not be afraid of the due process mechanisms, if that’s what it takes, you know, but not think that it’s like, you know, the panacea, like it’s going solve every problem, we also need to be pushing collectively as a community of people for reforms that will fix the system in a way where these are no longer the problems we have to deal with. And that we have to repair the broken system, not only on a kid by kid basis, but we also have to make it better than it was in the first place. And so that the next time catastrophe comes, we’re better prepared to roll with it. I mean, sadly enough, this was long overdue, where the system needed to be confronted on its failures. But I think that parents can take hope that we’re part of history right now we’re part of fixing it, we’re part of making this better for our kids with special needs, because all of its going to have to be reformed, we can’t just tape it back together and go back to the way it was. So I think that …
Catherine Michael 44:23
Yeah. Right.
Anne Zachry 44:54
… you know, there’s, there’s a lot of encouragement in what’s going on here, there’s a lot of opportunity, and we don’t need to be so terrified of the changes that are coming. And we need to really embrace them, because it’s our opportunity to make it better, I think. And it’s going to take people like you and me going in there and one kid at a time, you know, saying, “No, this is … these are the rules, and this is how they apply to this one child. And this is …” ” … the individualized program, and and the individual person matters. You know, it’s like every vote matters, every child matters. And whether that child has a disability or not, should not be a defining criteria of whether that individual matters or not, it shouldn’t even be a question.
Catherine Michael 48:39
Right! Yeah.
Anne Zachry 48:55
And so I think that what we’re doing is a very powerful thing. This is a very prescient area of civil rights law right now. And, you know, I think that, you know, regardless of how things play out with what other people do, what people like you and I are doing, we’re on the right side of history with this, you know? We’re enforcing civil rights. We’re …
Catherine Michael 49:13
Yeah.
Anne Zachry 49:13
… we’re enforcing democracy. It’s we are of the people, for the people by the people doing the work to make sure the people are protected. And I think that families need to understand that they’re not alone, that there are folks like that, like us out there. And we’re not that rare, you know, and the fact that you’re licensed in multiple states goes to the fact that you recognize the degree to which there’s not enough representation in some places, and that you’re making it …
Catherine Michael 49:36
Yeah.
Anne Zachry 49:36
… happen anyway. And so that’s really powerful. I think the parents need to … and I know that there are other attorneys who are licensed in multiple states as well. One of the attorneys I work with here in California is also licensed in Alaska. And let me tell you, going out into the middle of Alaska in the middle of nowhere … … and enforcing special ad law is not an easy thing to do. You’re coming in on a like a bush plane and landing in, you know, somebody field, you know, and going to a one room …
Catherine Michael 49:53
Yeah! Right.
Anne Zachry 50:04
… school house to say,” Okay, this kid needs speech and language. How are you gonna make it happen?” and they still got to do it. And so, you know …
Catherine Michael 50:09
Yeah.
Anne Zachry 50:09
… parents need to understand that even under the most bizarre and difficult circumstances it can be made to happen. There’s always a way.
Catherine Michael 50:17
Right.
Anne Zachry 50:17
You know, and that it’s not a hopeless situation. So I think that talking about this with you has been very enlightening and very encouraging. And I think that you’ve given us a lot of really good information. I do want to remind everybody that I’m going to include a link to your book with all of our, you know, the stuff below on the … because what we’ll do is we we do the podcast, but we also do a corresponding text only post …
Catherine Michael 50:39
Great!
Anne Zachry 50:40
That way, all the links for everything are embedded in the transcript …
Catherine Michael 50:44
Yeah.
Anne Zachry 50:44
… so we’ll have all of that and then …
Catherine Michael 50:47
Oh, that would be fantastic!
Anne Zachry 50:49
Yeah, and that way folks know how to get ahold of you. And this has been a really good discussion, I really appreciate you doing this with me.
Catherine Michael 50:56
You know, you’ve done a great job, as well, at trying to keep parents aware of their rights and helping them feel empowered. And I think that’s the biggest thing that they need to know is that they have a lot of power in their hands. They just need to know that there are lots of us on their side trying to help them along the way.
Anne Zachry 51:13
Right. And it means the world to us to be able to do it. It’s such an honor to be able to be part of making somebody’s life something that you know that they’re they’re happy and they’re fulfilled and they’re not living in misery …
Catherine Michael 51:26
Yes!
Anne Zachry 51:27
… or in crisis, you know, that that we can help people turn those kinds of corners with the kind of work that we do. I mean, it’s an honorable thing that we do and I’m proud of what we do. So thank you, and thank you for doing this and for sharing your information with us and hopefully we’ll get to do something like this with you again soon.
Catherine Michael 51:44
Yeah, I would love it. And thank you again, so much and for all that you do.
“Fascism” is a scary word that is far too often slung as an insult by people actively engaging in it who don’t understand what it actually is. In today’s post/podcast, I want to talk about what fascism actually is and how it shows up in all aspects of public agency functioning, but particularly how to recognize it in special education.
Unfortunately, these days, there are no better angels to appeal to within many public agencies, including public education agencies. It’s not that the entire barrel of apples is spoiled, but enough of it is that the good apples either leave or go bad, too.
Bureaucrats accustomed to gaming the system for their own financial gain at the expense of children with special needs have historically engaged in some pretty unscrupulous behaviors over the years, but they just could not resist the opportunity to exploit the pandemic to advance their self-serving agendas. They’ve become experts at seizing upon opportunities to escape/avoid their job responsibilities while still collecting their government paychecks.
For far too many individuals, employment in public service has become a form of welfare fraud, only public agency employees get more free government money and perks in exchange for nothing than actual welfare recipients, who have to perform for the pennies on the dollar they receive by comparison. In California, for example, the average special education director is paid around $125K per year plus benefits with support administrators each being paid around $100K per year at taxpayer expense, regardless of whether their students receive educational benefits or not.
So, how does that relate to fascism? And why is it such an inflammatory word when it simply describes a frame of thought?
My theory is that either the people who find the terms “fascist” and “fascism” inflammatory are engaging in fascist behaviors and don’t want to be called out on them, or they don’t actually understand what fascism is and that they are actively engaged in it, thereby simply taking it as an insult. So, before we start talking about the fascists that have been employed in local government over the last 100 years, lets first arrive at an understanding of what these terms actually mean.
Before we can talk about what fascism is, we first need to talk about what our democracy is supposed to be. The most basic summary of American democracy is that it is a system governed by the rule of law, which is created by legislators elected to represent the interests of their constituents wherein the majority rules. Being ruled by laws of which no one is above, rather than a dictator or an authoritarian regime, is an essential element of a democracy.
Another essential element of a democracy is the belief that every person, regardless of what makes them unique, is afforded equal rights under the law. The fact that we need laws like the IDEA, Section 504, and the ADA make clear that, if left to their own devices, our public schools cannot be trusted to afford equal rights to their students with special needs. They have to be regulated or they can devolve into little fascist regimes of their own, depending on the communities in which they are located.
The last 29+ years of working in this field has convinced me that even those laws are not enough. Fascists who have been within the system since before these laws were passed made these laws necessary in the first place to ensure that democracy is afforded to every child in the public education system. One of the most historically significant pieces of litigation in IDEA history is PARC v. Pennsylvania, in which it was determined that denying children with disabilities equal access to education is unconstitutional.
The fact that our federal government has been kidnapping and locking up babies coming to our borders through the the legal asylum-seeking process with their parents speaks to the degree to which the rights of any child in this country are not honored in general, much less when children have disabilities. Recent feedback from the American Association of Pediatrics has described this conduct as institutionalized “child abuse.” The American Federation of Teachers has called this conduct “crimes against humanity” (see https://youtu.be/3lMhuv3EXLI).
A government that disregards child welfare at all, much less to this degree is monstrous, hence today’s discussion of fascism.
fascism
[ˈfaSHˌizəm]
NOUN
fascism (noun)
an authoritarian and nationalistic right-wing system of government and social organization.
So, basically, anything undemocratic is fascism. Denying children with disabilities equal access to education has already been determined to be unconstitutional. If it’s unconstitutional, is undemocratic. If it’s undemocratic, it’s fascist. Ergo, denying children with disabilities equal access to education is fascist.
Nazis are fascists. They do not believe that all people have equal rights and individuals with disabilities top their list of people who don’t deserve to live, much less be given equal access to anything. All fascism includes biases against other humans on the bases of observable physical traits and/or behaviors.
In Hitler’s Germany, it was the medical community that turned its back on individuals with disabilities, using science without ethics to justify mass killings and inhumane experimentation that were legitimized as “medical procedures.” After Hitler purged the country of somewhere between 6,000 and 7,000 Jewish doctors, more than 7% of all remaining German medical doctors joined the Nazi party, a much higher percentage than in the general population at that time. By 1942, more than half of Germany’s medical doctors and professionals with PhDs in related fields had joined the Nazi party.
Doctors working for Hitler’s Nazi State rather than patient welfare then embarked upon many of the most unethical human experiments conducted in modern history. Using Mendelian genetics to guide their decision-making processes, they saw extermination as the correct solution for developmental disabilities like Autism and Down’s Syndrome, which they regarded as genetic defects. This abandonment of the Hippocratic Oath to do no harm facilitated the Holocaust.
Murder and dismemberment in the name of science were visited upon every class of individuals captured by the Nazis, including people with disabilities, during the Holocaust. At the time, there were no international laws governing the behaviors of doctors. After the war, following the Nuremberg Trials, the Nuremberg Code was created in 1947, which established a set of research ethics for human experimentation.
In the early 1970s, when the special education and related civil rights laws were created, these ethical standards had long been established as a matter of law, but not necessarily common practice. The concept clearly did not generalize from the medical community to the education community, and much hell has been raised by school district officials and their lawyers about public education agencies not being liable for educational malpractice.
In my opinion, educational malpractice should be a criminal offense, complete with jail time and fines. Acts of unconstitutional conduct carried out under the color of public office cannot be tolerated in our democracy, whether we’re talking about extrajudicial killings by police or denials of a Free and Appropriate Public Education (FAPE) as a result of malice and/or neglect.
These laws only became necessary, and were finally enacted in the 1970s, because the intrinsic educational and civil rights of children with disabilities were being denied all over the United States. Professional ethical standards alone were not enough to protect students with special needs. Just as with the Nazi doctors and the Nuremberg Code, laws had to be created after the fact to hold people accountable for their unethical treatment of individuals with disabilities, including school-aged children, here in the United States.
The laws that protect students with disabilities have always been difficult to enforce. In no small part, this is because the fascists already employed within the public education system who viewed children with disabilities as second class citizens continued to undermine these laws from within their public education agencies after these laws passed.
As a more visible example of what I’m talking about, consider one of the most famous “Karens” in our social awareness, Kim Davis of Broward County, Kentucky. While she got elected to serve the public, taking an oath to abide by the rule of law and fully knowing that the Constitution requires a separation of church and state, she refused to issue marriage licenses to same-sex couples following the landmark federal lawsuit Obergefell v. Hodges, because her religious beliefs require her to engage in discrimination on the basis of sexual orientation.
This is fascism. She denied equal Constitutional rights under the law, refused to abide by the rule of law, and abandoned the separation of church and state in favor of her religious beliefs, which clearly do not align with the Constitution or democracy in general. She then claimed that she was being persecuted for her religion when she was put in jail for refusing to do her government job according to the rule of law.
This kind of behavior has been going on since the laws that protect children with disabilities were passed in the 1970s through to today. And, now, we have the consequences of this pandemic impacting an already unconstitutionally dysfunctional system and exposing all of its flaws for the whole world to see.
The thing about hard times is it quickly reveals who the fascists are. They are the ones advocating for a return to the previous status quo in which they were the beneficiaries of inequities while actively denying the existence of the obvious inequities in our publicly funded systems.
It has become the norm that agencies created by our democratic rule of law and funded with taxpayer dollars routinely violate those laws and misappropriate those dollars at the expense of the very constituents these agencies were created and funded by the taxpayers to serve. This has to stop or democracy is truly dead in this country.
Such is often the case in special education, just as a matter of routine. But, now this pandemic has really shown everyone’s true colors and there is little that is beautiful to behold. Just as peaceful protests against police brutality are being met with more police brutality, parents advocating for remedies to address their children’s special needs are being met with more frequent and egregious violations now that the circumstances have changed in response to the pandemic.
Clearly, public safety is of paramount importance and I will never dispute that plain fact. But, public safety does not require the end of democracy, and I’m not talking about masks. Don’t be an idiot; wash your hands, wear a damn mask, and socially distance yourself from other people.
Public safety is equal in importance to the constitutional rights of children with disabilities, not greater. These children have a protected legal right to equal access to public education. Further, special education students have a protected right to individualized educational programs designed and delivered according to the peer-reviewed research (34 CFR Sec. 300.320(a)(4)).
Local government agencies performing according to their legal mandates is democracy in action. This pandemic is not so apocalyptical that certain classes of individuals suddenly cease to have legally protected rights. Fascism denies their rights, not a virus. Local education agencies refusing to perform according to their legal mandates is fascism in action.
Further, as I’ve previously reported here, none of the applicable federal laws have been waived as a result of the pandemic. States and local governments do not have the legal authority to waive the federal requirements; they can only describe with State law how the federal laws will be implemented within the State, and local education agencies can, at most, create policies about how they will individually comply with the State’s implementation requirements of the federal regulations.
No local school district has the legal authority to refuse to abide by the laws, particularly those that regulate its purpose and existence. Nothing could be more undemocratic – more fascist – than that.
And, yet, here we are with our most vulnerable children languishing and regressing developmentally with every passing moment because a bunch of “tax-fattened hyenas,” to quote the great Berke Breathed, saw fit to use the pandemic as an excuse to not expend public dollars on the members of the public for whom those dollars were intended, while continuing to collect six-figure annual salaries in exchange for nothing. This isn’t just a civil rights issue. Just like police reform, it’s a taxpayer issue.
What this pandemic has done, among other things, is expose every crack in every system throughout all our systems of governance. And, those cracks are the consequences of systemic non-compliance with regulatory mandates, as well as failures of those mandates to adequately describe courses of action that prevent non-compliance.
There is no proactive oversight of local education agency compliance with special education and related civil rights law; the burden falls to the shoulders of largely uninformed and/or unempowered parents to file complaints or litigate in order for the law to be enforced, which means it usually is not. It’s a matter of “When the cat is away, the mice will play.”
Without proactive oversight and enforcement, public agencies are adrift at sea, inventing their own ways of doing things while often unaware of their legal obligations. There is no real quality control in special education. There’s just school district lawyers who jump in after the train has already wrecked to argue that it really didn’t for ridiculous dollars per hour at taxpayer expense.
It’s one thing to point this stuff out. It’s another thing to do something about it. My thought process is that the IDEA is overdue for reauthorization. Presuming democracy is preserved with the upcoming election and we haven’t descended into dictatorship, there is going to be a lot of public agency and legal reform coming down the pike for the next 10 years, at least.
Historians, anthropologists, sociologists, and psychologists will all be looking at the last four years and what led up to the current state of affairs in our nation under a microscope for the next 100 years, at least. The data they will be generating will inform vast improvements to our social systems and create systems for ongoing improvement as our society evolves and encounters new challenges, so long as the rest of us make sure that happens.
Right now, one of the most powerful things that parents of children with special needs can do is vote for the candidates they believe will take action to make sure that our publicly funded government agencies actually perform according to the regulatory requirements and achieve the purposes for which they exist, including the application of valid science to the delivery of services intended to benefit the public good. Maybe then we can finally become the democracy we’re supposed to be.
I’m pained to open with the platitude that these are unprecedented times. We all already know that and belaboring it for the purpose of a proper opening paragraph seems to belittle the magnitude of the moment.
The truth is that I’ve been having a hard time coming up with the right place to start the next conversation on this blog. I had developed a publishing schedule for Making Special Education Actually Work just before the pandemic hit and the schools in California, where we are headquartered, shut down.
All of that went out the window the moment the shutdown started and I’ve since published some bits about how to respond to the situation based on what was known at the time of each publication, but how things have continued to play out, or not, from one school district to the next has been nothing short of pandemonium. Some of my kids have done so much better with distance learning that they never want to leave their houses again. Others have regressed so greatly since the shutdown started that it’s going to take years to undo the damage that has been done and catch them up to the degree its possible to do so.
Each kid, as a unique individual learner, has experienced the shutdown differently, but all of them are experiencing the same procedural violation at the hands of their Local Education Agencies (LEAs): Failure to implement the Individualized Education Program (IEP) as written. Or, framed in the language of the regulations, failure of the education rendered to conform with each student’s respective IEP.
In California, the State has already assumed that compensatory remedy will be due to most, if not all, of its special education students because of the shutdown. None of the laws changed. There are permissible, though narrow caveats, in the law that provide for extenuating circumstances.
The real dispute, it seems, is over what is realistically practicable given the circumstances, but that first requires us to operationally define what we mean by practicable, and that’s a problem. There is no legal authority or professional standard for what defines “practicable” within the context of 34 CFR Sec. 300.320(a)(4).
I know this because the operational definition of “practicable” was one of the burning questions I had when I went back to graduate school in 2011 and had answered by the time I graduated in 2013. The truth is that there is no operational definition in the scientific literature or the case law as to what is meant by the term, “practicable.”
Even Perry Zirkel was stymied by this question and ultimately concluded that most courts interpreted the definition of “practicability” as something to be left to the discretion of local education agencies – meaning, really, top administrators and board members, who are all politicians – get to decide what is and is not practicable as a matter of local governance. In those LEAs, “practicable” just means “if the LEA wants to.”
This, of course, neglects the fact that 34 CFR Secs. 300.320-300.324 vests the authority in IEP teams, which include the parents, to make determinations as to what is educationally necessary and, therefore, the obligation of the LEA to provide to each given special education student. If that authority is vested in the IEP team, then no one from the LEA on the IEP team should have to go get the approval or permission of a superior outside of the IEP meeting, particularly when that superior has no direct knowledge of the student’s unique needs or the IEP team’s discussions about them. Whether or not something is practicable should be an IEP team decision, not an internal policy issue, yet the research that has been done suggests its a call to be made by top administrators, not individual IEP teams that include the students’ parents.
Further, 34 CFR Sec. 300.321(a)(4)(iii) mandates that each IEP team include at least one LEA representative who is “knowledgeable about the availability of resources of the public agency.” Usually, this is an upper-level administrator from the main office who not only knows what resources the LEA has, but has also been granted the authority to commit the LEA’s resources to a student’s IEP. This can come in the form of committing existing resources to the IEP as well as procuring those materials and services that are not already available through the LEA.
I’ve been in IEP meetings during which such an administrator fills out and submits online requisitions for use of existing assets, as well as online purchases and purchase orders through their LEA’s internal automated workflow system, during IEP meetings as the team agrees to things that are needed but not already on hand. It’s not that uncommon and it goes a long way towards doing it right the first time.
Again, there should be no going to someone else outside of the IEP process for permission or approval. In one fairly recent meeting I attended, the school district’s administrator on the IEP team shared her screen with the rest of us so we could all look at our options on Amazon together as an IEP team and make the purchasing decision right there. Then, “click,” it was ordered and the student had his accommodations the next day. Easy peasy.
The law does not provide for the IEP team’s authority to be displaced by or shifted to an uninvolved third party. If no one on the IEP team from the LEA knows whether the LEA already has the necessary resources available or will need to purchase stuff it doesn’t already have, it’s not a real IEP team.
Because these decisions are IEP team decisions, and not the decisions of removed administrators who are motivated by factors other than the individual needs of each special education student, deferring to top administrators to determine what is or is not “practicable,” opens the door for a litany of procedural and substantive errors that will quickly create due process claims against the LEA. It behooves no one for LEAs to play this game, but plenty of them do.
Competent people have no motivation to do sketchy stuff and lie about it, so when you encounter this kind of behavior, it’s because you’re dealing with people who don’t know what else to do and/or are crooked through and through. What we are all now going through as a nation under the current presidential administration is a reflection of the crap I’ve been dealing with for nearly 30 years in special education local governance. None of this is new to me, it’s just now happening on a national scale. Maybe everybody outside of the special education community will finally believe me about this crap, now.
More often than not, what is deemed by an LEA as not being practicable is likely better framed as being something for which the LEA is simply not willing to expend the necessary funds. While it is unlawful under the IDEA to use fiscal considerations to determine the contents of a student’s IEP, it happens all the time. The language of IEPs are often deliberately kept vague and weak so that they are difficult to enforce or so that it is otherwise difficult to say that the education rendered failed to conform with the IEP.
I’m seeing this happen in a way with 1:1 behavioral aide support services, right now. I’ve got families barely holding it together, stuck at home with their severely impacted children who have serious behavioral challenges arising from their disabilities. They’d give anything for in-home 1:1 behavioral services, right now.
I know of at least one student who is currently getting in-home behavioral services through his health insurance, which is the only reason he was able to participate in distance learning during the last half of the Spring 2020 semester. The same agency currently serving this student through his health insurance had previously served him as a Non-Public Agency (NPA) under his IEP in the public school setting. Same people, different funding source, different willingness to send personnel to his house for in-home, 1:1 behavioral aide services.
His school district has offered to provide an aide online during distance learning, like somehow that’s going to produce the same educationally substantive outcome of getting him to engage in the online instruction in the first place and remain engaged throughout each lesson. The boy needs an in-person 1:1 aide in order to access the instruction at all. How is he supposed to access online aide support when he needs in-person aide support to access any kind of online services?
And, he’s one of many students on my caseload with similar needs; he’s just the only one I know of currently living the experience of having the in-person 1:1 aide support during shutdown and being met with educational success because of it. Everybody else is asserting the need for it, but not getting it, and due process cases are popping up everywhere now, including among my students for whom I never thought litigation would realistically come to fruition.
The legal authorities favor special education students on this issue, and school districts in California are now having to weigh the risk of litigation from unionized employees against the risk of litigation from parents of students with special education needs as this whole debacle clatters forward in the absence of unified leadership across the State’s public education system. Many districts are still clinging to outdated paint-by-numbers procedures and fill-in-the-blank on standardized documents and forms, aiming for procedural compliance without thought to the substantive considerations … like providing 1:1 aide support via Zoom to a student who needs in-person support in order to access instruction via Zoom in the first place.
It’s like they think conforming with the IEP in any way complies with procedure, even if it entirely fails to meet the instructional purpose it’s supposed to serve from a substantive standpoint. The real tragedy, here, is that these paint-by-numbers bureaucrats don’t understand how to act according to the substantive needs of the student; they just want to know which form they are supposed to use.
This significant subset of the public workforce may have memorized many of the procedures for the job and can usually find the right form to use, but don’t ask them to actually engage in deductive reasoning, creative problem-solving, troubleshooting, or solution-seeking. They simply can’t. They don’t think that way. And, the human resources department didn’t recruit for people who can think for themselves on purpose.
The middle management jobs require drones who respond to authoritarian hierarchies of leadership and do not question the orders they are given, if the system is going to function according to its bigoted design. And, that is how it has been functioning for the last few decades following the passage of federal civil rights laws, including disability-related laws that first started passing in the early 1970s, up through the Americans with Disabilities Act (ADA) in 1990.
Those laws were necessary because the public education system, among others, was actively discriminating against children with disabilities, including denying them even enrollment. The public education system was already discriminating against students with disabilities or the laws would not have become necessary.
When the laws passed and the public education system was ordered to comply, those individuals who had been philosophically opposed to accommodating learners with disabilities were still employed by the public education system, by and large. They didn’t all leave. Many stayed and have been sabotaging it from within this entire time. And, they recruit people who are too incompetent to realize they’re being used and/or too afraid of losing their jobs to dare question what is really going on, so they can maintain positions of authority and control according to their own fascist belief systems rather than their mandates under the law.
One of the most powerful things to come out of the current state of affairs in this country is the cracks in the publicly funded systems that people like me have been squawking about to no avail for decades, but which can no longer be denied by the masses. As we move forward to rebuild a better America in the wake of the destruction currently happening all around us perpetrated by people with way more authority than they can responsibly handle, it is painfully obvious that we have a disturbingly large swath of the adult population that “pass” as competent adults but who actually are not.
These individuals occupy a great many niches of society, including in the public sector. Their approach to leadership, when they are allowed into offices that require more of them than what they possess, is destructive. It can ruin a child’s future through educational malpractice at the local level or fan the flames of a global pandemic and domestic terrorism at the national level until it ravages the entire nation.
These individuals place cronyism over science because they are not smart enough for the science and, frankly, they’re not smart enough to cover the tracks of their cronyism. They have simply had the power of money behind them and those without money have had to tolerate their malarkey as a matter of survival. But, now that tolerance doesn’t even achieve survival for those without, so they aren’t motivated to tolerate the malarkey anymore. Look out Marie; here comes the guillotine.
Society has finally had its fill of incompetent bullies acting like they are better than the rest of us to the detriment of us all and for no other reason than to stroke their own egos and line their own pockets. We have become aware that they are too dimwitted to realize the harm in what they are doing and too selfish to have any sense of compassion or empathy for the people they hurt.
These individuals are emotionally still children, trapped in their bodies for decades without maturing, thinking their chronological age and changing external appearance are all of what earns them respect as adults, and often unable to fully engage in adult-level problem-solving and critical thinking tasks, but able to develop academic and/or professional skills that can otherwise allow them to “pass” as competent.
These are high-functioning individuals with significant impairments in judgment who engage in intuitive rather than deductive reasoning. Intuitive reasoning is age-typical in young children. It’s indicative of an impairment in adulthood. It co-occurs with egocentric thought, in which the individual is incapable of engaging in perspective-taking and appreciating the experiences and viewpoints of others.
An egocentric person is the center of their own personal universe. Everyone else is just an object in orbit around them who may or may not serve a useful purpose at times and is only accessed when the egocentric person thinks an individual is useful.
The egocentric person recognizes his/her/their own agency – that is, the ability to act upon the world to produce intentional outcomes – but they struggle to appreciate the agency of others. They tend to only perceive other people relative to their own thoughts and feelings and fail to consider that other people have their own thoughts and feelings that are each different from one person to the next.
Egocentric people tend to assume that whatever they are thinking and feeling is what everybody else is also thinking and feeling, and/or that everyone else’s decisions are made with the egocentric person in mind. The egocentric person struggles with perspective-taking, which requires that they first understand the agency of others and that everyone is preoccupied with their own thoughts and feelings, not making the egocentric person the focus of their every decision.
Errors of omission and thoughtless, inconsiderate acts by others are perceived by egocentric people as deliberate efforts to cause harm or offense to the egocentric person. Because egocentric people assume that whatever they want and need is automatically understood by everyone else, which is because they assume everyone else is thinking and feeling the same things they are, if everyone else fails to deliver according to an egocentric person’s expectations, the egocentric person attempts to force the desired response to present itself.
Because they lack the emotional intelligence to navigate many types of complex situations involving other people, whatever cognitive abilities they may actually have don’t do them much good. They make errors in judgment when it comes to how they interact with other people; how well they can do math, design a building, or research historical biographies just doesn’t matter in that moment.
When people like this become employed within the public sector and have to make policy decisions, they are incapable of putting themselves into the shoes of their constituents and engaging in legitimate representation and advocacy for services that meet the of needs of those they have been hired to serve. Because of their egocentrism, the job is a means to a self-serving end. Also because of their social/emotional developmental impairments, their ability to actually engage in adult-level problem-solving as required by their positions is equally limited.
Because they can’t actually meet the performance requirements of the job, they find ways to socially engineer their ways to the top, including taking credit for the accomplishments of their subordinates while sycophantically leeching onto the coattails of those who have grifted their way up the food chain before them. They all keep each other’s dirty little secrets about not actually being able to do their jobs and abusing their positions of authority to the benefit of the highest bidder, be the currency money, power, or both.
Eventually, an emperor emerges from the mix, some traveling salesmen weave him a in invisible robe from gold thread that, allegedly, can only be seen by competent people, and, as he’s parading down the street in this magical garment, a child points out that he’s actually just a naked guy played for a fool by a couple of con artists who have since skipped town with a fortune in gold thread. I’m paraphrasing the parable, here, of course.
The problem is that a public institution can become such a hopelessly dysfunctional system that it’s really better to take it down the way the Attorney General (AG) of the State of New York is trying to take down the National Rifle Association (NRA), right now. When the corruption runs as deep in a public agency as New York’s AG asserts is the case with the NRA, it’s better to scrap everything and start over with all new people and a new method of operating that conforms to the appropriate standards.
Sometimes the well becomes so hopelessly poisoned that it’s just time to dig a new well. I think America is at that crossroad in a very broad and general sense. We are at the tipping point of a crisis of conscience.
Who do we want to be? The cronyistic incompetents who stab each other in the back over superficial slights, engage in power grabs like reality TV show contestants, and are utterly detached from and incapable of living up to the responsibilities of the job? Or, the hard-working, methodical, responsible adults who understand and are humbled by the responsibilities before us, know that our efforts to do things right will pay off in the long run but we’re going to have to struggle in the short term to clean up the messes we’ve collectively made?
So many people who came before us fought and died so that we could have the freedoms and legal tools to save our democracy, right now. I have been fighting this fight since the 1990s, but I have also lived the reason for this fight as a twice exceptional student who was never identified for any kind of services or accommodations for my processing disorder when I was a K-12 student. During the 1970s and 1980s, when Section 504 and what is now known as the IDEA were new, they were not being implemented by the overwhelming majority of public schools in the United States at the time, and certainly not in Louisiana and Arkansas, where I grew up.
I was briefly put on Ritalin in my early elementary years. But, who wasn’t, back then? I was later diagnosed with “minimal brain dysfunction” in junior high as the result of a quest for a reason why I couldn’t walk in heels (there was great social pressure on females in the Deep South at the time to wear pumps with everything, including jeans). I had to do physical therapy to stretch out my hamstrings and heel cords from all the years of toe-walking I’d done (which, by the way, toe-walking can be a neurological soft sign of autism).
My vestibular sense and my proprioception were jacked. My reflexes were/are abnormal. I can distinctly remember having visual processing issues that made it such that my brain couldn’t piece together what I was looking at to make a picture of the world that made any sense. Abstract shapes would slowly resolve into a singular whole that then made sense, but I can remember having to wait for that visual resolution to occur at the brain level before I could start understanding what was happening around me. My eyes could see, but there was lag time between when I looked at something unfamiliar and my brain was able to put the shapes together in a cohesive way that I could understand. My last recollection of that happening to me was around 8 or 9 years old. I can remember it happening a lot prior to then.
I also had very bad vision, so it could have been that my brain didn’t get the requisite practice at piecing together the parts of what I saw into a cohesive whole until I got glasses and could actually see everything clearly. I don’t have ADHD; I have ADH – Oooh, shiny! I also have mild hearing loss due to a condition that runs in my family. My dad and many of my cousins have hearing aids. I haven’t gotten to that point, yet, but it’s coming, eventually and that’s okay. Worse things could happen; hearing aides don’t ruffle my feathers in the least. I’m just not spending the money until I have to.
The point is that I had a mixed bag of processing issues as a kid that was somewhat offset by my processing speed, but not enough to make me academically successful. I know what it’s like to have my potential wasted by people who don’t understand my needs as a developing child. The adults in my life cared, but were at a loss as to what to do because the science just wasn’t that good or well known at the time, and certainly not where I grew up. They couldn’t begin to abide by the relatively new civil rights and special education regulations; the science behind it was way beyond them. They didn’t know any of that.
But, that was a long time ago. We don’t have those same excuses, now. Adults like me who used to be those struggling students decades ago are everywhere now in public education advocacy, rights, and reform efforts. We know first hand why it’s so important for the public education system to engage in person-centered planning for every student, not just those identified as having something “wrong” with them.
We also understand why it is so important to identify those who do have exceptional needs, and meet those needs, so these students have equal access to learning as that given to their peers without exceptional needs. We understand why it is so important to address the disabilities of our twice-exceptional students while simultaneously nurturing their gifts. Last year, Kodi Lee brought the point home to the lay public, which had not had any similar prior exposure to twice-exceptional people, and certainly not one so impactful.
No matter how impaired someone may present, the public learned to never assume that such a person’s presentation accurately captures all of who that person is. Kodi humbles people in the kindest, most innocent, and inadvertent way, which is what makes him so powerful. He isn’t trying to ram a message down anyone’s throat. His existence is the message; he lives it for the rest of us to observe and copy.
Kodi is a powerful living metaphor to not judge a book by its cover, which has been a recurring lesson born over the last few years of these talent competitions happening around the globe that he simply drove home with an exclamation point. The cultural norms surrounding public opinion of people with disabilities have tipped strongly in the direction of inclusion by the display of capability and superior abilities by contestants with a wide variety of impairments in these competitions.
Leave it to the entertainment industry to be the agent of change. If we live in a shallow culture in which life imitates art, then art should model appropriate behavior, such as inclusion. I’ll say this for Simon Cowell: he made inclusion marketable and profitable by allowing talented people to be defined by their acomplishments rather than their limitations. At the end of the video clip of Kodi Lee’s first audition for America’s Got Talent, after winning the Golden Buzzer, the judge who had awarded it to him, Gabrielle Union, told him straight to his face, “You just changed the world!” and she wasn’t lying.
This is part of the brave new world that is to come as we rebuild our public education system to meet the needs of today’s students in the 21st Century, including the flexibility to rapidly adapt to changing lifestyles, national emergencies, job market demands, and advancing technologies. All of these things will continue to collectively alter how we teach and manage the teaching process according to best practices, and continue to engage in ongoing research to continually improve those processes and their supporting administrative procedures.
Which circles us back around to the issue of stay-put and the recent stay-put order from OAH, linked to above. While the order is limited to California, it is germane to a federal district court case being tried in the Central District of California in which the plaintiffs, which include parents of children with extreme special needs who are not getting the 1:1 in-person services required by their IEPs, are suing the State over school shutdowns and attempting to get a federal court injunction that allows school districts to decide whether to reopen or not.
Not surprisingly, the case originates out of Orange County, California, which has a large extreme right population relative to the rest of the State and is, not coincidentally, also a COVID-19 hotspot within the State. COVID deniers abound and are having a deleterious impact on local governing decisions as they impact public health. For a lawsuit disputing the legality of school shutdowns over a legitimate public health crisis to emerge from this climate is not exactly a shock.
Not also surprising is the rampant special education violations and related scandals that have plagued Orange County for decades. Egocentrism is confused with personal civil liberties, and the welfare of others is beyond comprehension, resulting in extremist beliefs and behaviors. It is not shocking to me that school board members who have been actively violating special education and civil rights law convinced a bunch of parents who they were actively screwing over to join them in a federal lawsuit against the State to force the schools to reopen in order for their kids to access services.
If you read the plaintiffs’ complaint compared to the legal authorities I’ve already cited previously in this post, it’s plainly evident that these people don’t know what they are doing. I spoke with the State’s lead attorney on the case last week and shared the arguments I’ve now presented in this post with her.
While the judge has yet to decide the case, and, in fact, today is the filing deadline on briefs regarding the exhaustion requirements under the IDEA and the California Department of Justice (CADOJ) is on it, the nature of the questions the judge asked the parties to brief in his last minute order inclines me to believe that once those questions have been answered, we’ll have a federal district court decision on the matter that will apply to every school district in California.
The CADOJ’s arguments must naturally rely in part on the arguments I’ve asserted herein. The federal district court judge will likely defer to the OAH stay-put order that was just issued yesterday, given that OAH has the authority to try special education cases and is, therefore, authoritative on how the law applies to the rights of special education students, special education students must exhaust their due process rights through OAH before filing in federal court (generally speaking), and it is proper for the federal court to defer to OAH’s judgment, which will mirror the arguments I’ve been asserting this whole time and which CADOJ will also be asserting. They are aware of yesterday’s stay-put order, as well, just in time to meet their filing deadline.
Things are about to get a whole lot more okay for a lot of kids on my caseload. Whether their LEAs capitulate and provide the services or we end up going to hearing with the right kinds of legal authorities backing us up, either way, the rule of law is working slowly but surely and the application of the peer-reviewed research to the delivery of special education, now that reform is unavoidable, is about to enjoy a new era of advancement in the education of all students, not just our students with the most demanding needs.
It’s always darkest before the dawn. An extinction burst of escalated behaviors always comes before a maladaptive behavior finally becomes extinct. We are riding out one heck of an extinction burst on the part of incompetent people whose cronyism and transactional relationships have defined their realities and ours, and who cannot function in a more advanced, emotionally intelligent society that is moving increasingly towards meritocracy in which actual ability and earned achievements promote social status. Hucksterism has become obsolete. The Patriarchy is now rightly seen as a pack of egocentric ghoulish caricatures, not as dignified elites worthy of worship by everyone else.
These moments will pass and we will have the power to make something new and better once we get to the other side. This latest stay-put order and, hopefully, the upcoming federal court decision, are incredible first steps in the right direction.
The decision to refer a child for assessment to determine if they qualify for special education isn’t one to take lightly. Do you err on the side of caution and assess, even if only to rule out the possibility of a special education need, or hope whatever is causing the child problems in school will somehow work itself out?
For a variety of reasons, it is often the case that general education staffs in a public school are hesitant to refer a child for special education evaluation, or don’t even know that they are required to do so if a child presents with signs of suspected disability. Many don’t know how to distinguish the signs of possible disabilities from other factors, so they don’t even realize what they are really looking at.
The implementing regulations of the Individuals with Disabilities Education Act (IDEA) make clear that parents also have the authority to refer their children for initial special education evaluations. Referral is the first step to determining if a child is eligible for special education and, if so, what an individualized educational program (IEP) will look like for that child.
Referral triggers an initial evaluation that is supposed to be conducted in all areas of suspected disability and unique student need. That evaluation is supposed to be sufficiently comprehensive to inform the IEP as to the student’s potential eligibility for special education and the student’s unique learning needs.
There are two prongs that have to be satisfied in order for a student to become eligible for special education: 1) the student has to have a disability, and 2) the disability has to create a negative educational impact of some kind that makes specialized instruction necessary that wouldn’t otherwise be provided to a general education student. It’s possible to meet the first prong, but not the second one.
If it turns out that the student has a disability, but not to such an extreme degree that specialized instruction becomes necessary, the student may still be eligible for accommodations pursuant to Section 504 of the Rehabilitation Act and the Americans with Disabilities Act (ADA). Unless the instruction has to be modified or supplemented in some way in order for the student to access and benefit from the instruction, an IEP may be overkill.
There are those kids who need just a smidge of help, not a full-blown program of individualized instruction. There are those kids who just need a smidge of special education. Some kids need more, and yet others need a whole lot more. What each kid needs can only be determined by competent, comprehensive-enough assessments.
The federal regulations leave the door open for a local education agency (LEA) to deny a parent referral for initial evaluation, but the denial must conform to the Prior Written Notice (PWN) requirements described by the federal regulations. If the parent referral is declined, the PWN is required to explain why, and it better be a really good reason or the LEA can set itself up for a lawsuit.
States have the authority to add protections for students that the IDEA does not require, however. For example, in California, State law simply states that an assessment plan must be remitted to the parents whenever a referral is received. There is no caveat that says, “Unless it’s from the parents, in which case the LEA can decline it with a PWN.” There is no option for declination. It’s a black-and-white matter of, “When a referral comes in, an assessment plan goes out within 15 calendar days.” California law lists parents as the first party authorized to make referrals for special education assessments.
Every school year, families totally new to the special education process find themselves bewildered and dazed as they try to navigate the system. It’s a journey unto itself just to come to the conclusion that special education may even be necessary, but it’s only the beginning.
Federal law mandates that each State require its public schools to have a system of “child find,” which must actively seek out, identify, and refer those student who may need special education. But, I have shouldered my fair share of “child find” cases over the years where kids went on failing year after year but being administratively passed from grade to grade without ever being referred for special education, only to prove to have disabilities and be due compensatory education.
Parents and taxpayers cannot rely on “child find” to help the kids who need special education. The burden often falls on the shoulders of parents who start doing research and discover they can refer their children for assessment, but then it becomes about learning how to do it, and then learning about what comes after that. It’s involved and exhausting.
So, we thought that anything we can do to streamline the process and help parents advocate more effectively and efficiently would be a valuable thing to add to the growing body of online resources out there to help families of children with special needs. Our first tiny contribution along these lines is a free tool for parents to create a referral letter for their children. Now that we have the means to create tools like this, we’ll be adding more in the future.
Honestly, it was exciting to find out that our site would support this kind of functionality without a whole lot of work. This opens up a lot of doors for us to help a lot of people who we otherwise wouldn’t be able to serve.
The referral letter we created is basic, sticks to language that is legally applicable throughout the United States, and flexible enough to account for each student’s unique circumstance. We will be creating additional customizable downloads like this for other special education situations in the future. We’ll announce them here, though the blog and our social media, when we add them to our site.
Once you’ve created and downloaded the PDF, just print and sign it. Then you can remit it to your LEA by some method that give you proof of delivery. We like Certified mail – you get a tracking number so you don’t need a return receipt and it’s the least expensive method we’ve found for getting proof of delivery on correspondence that trigger timelines or are otherwise important enough to need to remember when they were received.
Be sure to keep a copy of the signed version for your records, along with the proof of delivery. If mailing it Certified isn’t convenient, you can also print and sign it, then make a copy of the signed letter, and walk both copies into your child’s school. Have the person at the counter stamp yours received with the date and, if possible, their initials, and leave the original with the person at the counter. You can also deliver it this way to the LEA’s administrative offices.
So long as you have proof of when it was received, you’ve preserved your evidence. We wish you the best in your endeavors to advocate for your child and hope this tool proves to be useful to you.
