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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Only serious special education-related questions will result in contest entry. The winner will be chosen at random from valid entries and announced on March 31, 2022 at 5pm Pacific Time. Selection of questions are at the sole discretion of KPS4Parents.
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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.
Every state has its own rules and regulations regarding charter school organization, configuration, and authorization. In California, charter schools are public schools that take Average Daily Attendance (ADA) dollars away from the school districts their students would otherwise attend. It is unlawful for charter schools in California to charge tuition to their students for this reason.
Like all other public schools in California, charters are obligated to abide by the same standards of compliance as any traditional local education agency (LEA) with respect to civil rights and special education law. While charters often like to think of themselves as “schools without rules,” that really isn’t true.
The truth is that some regulations are made easier for charter schools in California, while others are exactly the same as those that school districts are required to follow. The problem is that a lot of charter operators and their contracted vendors either don’t know that, or they know it but don’t care.
Understanding the charter rules for a single state, much less all states and territories, is confusing enough. Recognizing the abuse of those rules can be even harder for parents of students with special needs who require accommodations as a matter of civil rights, which can include an Individualized Education Program (IEP). In my experience, trying to enforce procedure in California’s charter school universe usually ends in inter-agency political backstabbing and lawsuits.
To understand charter school compliance versus the climate of charter school politics in California, one needs examples. The one that most recently prompted my return to this issue was recently covered by The Camarillo Acorn in its February 7, 2020 article, “Online charter school faces laundry list of violations.”
Online charter schools are even more challenged to comply with education law than brick-and-mortar charter schools. That said, for the chartering LEA in this particular case, Pleasant Valley School District (PVSD), to squawk about a lack of legal compliance on the part of the school to which it issued a charter, that being Peak Prep Pleasant Valley, is a grievous instance of the pot calling the kettle “black.”
I can imagine Peak Prep’s violations must be pretty egregious for PVSD to make a fuss about them in the media, and there is truly a fuss to be made as you can see from the article. But, the reality is that the Doctrine of Unclean Hands, at least as I understand it as a lay person, may preclude PVSD from saying a whole lot, which is possibly why it’s addressing this situation in the media rather than a courtroom. So basically, black pots throwing stones at black kettles in glass houses, to mix metaphors.
I’ve had four cases from my advocacy caseload in the last couple of school years that have required due process filings, and three of them have been in PVSD. I have an active caseload that averages 20 students throughout the State, mostly in Southern California, at any given time. These are raw statistics; take them for what you will. But, to think these amoral jamokes are concerned about anything with this charter situation other than going down with the ship is foolish.
Read the article and you’ll see there isn’t a single, solitary concern expressed by PVSD for the welfare of students, parents, and community members. The only sentiment expressed is on behalf of allegedly overworked and underpaid district administrators who don’t have time to clean up messes made by their charters. Not that imposing on district personnel to do what a granted charter requires of the charter school’s staff is okay, but I get the same arguments from PVSD in response to asking it to give a kid with disabilities a Free and Appropriate Public Education (FAPE).
This district gets itself into enough trouble on its own. A visibly non-compliant charter that won’t get its act together, for which the district is ultimately responsible as the chartering LEA, can only shine a stronger spotlight of scrutiny upon the chartering district. In California, the chartering LEA is ultimately responsible for the conduct of its chartered entities.
In special education in California, if you have to file a compliance complaint or due process request for a charter school student, you have to name the complaint against the chartering LEA, not the actual charter school. This is because the LEA is ultimately responsible for the charter school’s procedural compliance with special education law and providing FAPE to its special education students, regardless of how the charter school configures its special education services.
In California, when it comes to special education, charters can either be “schools of the district” for the purposes of special education, in which case the chartering LEA delivers all special education, or charters can be “LEAs” for the purpose of special education and take care of it themselves. Even if they organize themselves as LEAs for the purposes of special education, there is supposed to be oversight by the chartering LEA to make sure its obligations are met, but I’ve never seen that happen proactively. It’s always a knee-jerk fit of hysterics on the part of the chartering LEA that had no idea what the charter school people were doing until a complaint came over the transom.
Based on the sordid history of charters in California thus far, I’d think that any school board reviewing a charter application that claims to organize the school as an LEA for the purposes of special education would exercise ten times the scrutiny as it would if the charter application sought to remain a school of the district for special education purposes. In my experience, the charters organized as LEAs for special education are only organized that way to keep the eyes of their chartering LEA out of their business.
Organizing the charter as an LEA for the purposes of special education is, in my experience, an effort to reduce oversight, not increase compliance. I’ve heard more than one charter operator claim over the years that they didn’t want to be taken down by a non-compliant school district’s special education department, so they chose to do it themselves, but then they have fewer resources than their chartering LEAs and can’t actually deliver.
These are the charters that tell parents to take their kids with special needs back to their districts of residence instead of ponying up the resources to actually deliver on functioning as an LEA for the purposes of special education. Nothing prevents a charter from going to its chartering LEA and saying, “We have a unique situation and need your help,” to address unusually demanding special education services, such as full-time nursing support for a medically fragile student, for example, but I’ve never seen a charter organized as an LEA for special education purposes do anything of the sort.
When you as a parent are jumping ship to a charter school because your kid with special needs is already getting shafted by your district of residence, this really doesn’t help you out. Parents changing schools to avoid having to litigate their children’s special education cases often find themselves tumbling over the edge of the frying pan and falling into a blazing fire. It’s usually a lateral move at best, and a downgrade at worst. See our previous post, “Parents Who ‘School-Hop’ Risk Making Things Worse,” for more on that.
However, PVSD seems to be the one shining the light on Peak Prep, here, which in my experience, usually means there is a fair amount of misdirection going on. By acting as the accuser, PVSD is diverting eyes away from its initial decision to charter Peak Prep in the first place. The last thing any school district wants, including this one, is an official inquiry into how they conduct their business, so when a charter draws this kind of attention, it’s usually not good for the LEA that issued the charter.
But, it’s not like Peak Prep’s organizers’ questionable history was unknown or that the quality of the charter application wasn’t apparent at the time it was made. To quote PVSD’s superintendent, “… the cast of characters is not new by any stretch …. The same group has done this before. They should and do know better.” I say the same thing to myself every time I help an attorney draft language for a due processing pleading against PVSD on behalf of a child with disabilities.
The District’s hypocrisy, here, is absolutely wretch-worthy, for sure, but this whole public display over proper education agency conduct is critically informative, and voters should be paying close attention to it. While the PVSD/Peak Prep situation is just one more log on the blazing fire of charter school politics in California, it’s also a loud message for voters in Camarillo who are looking at the school board and wondering what it thought it could gain for the local community by chartering an online charter school in the current charter climate. Based on the behaviors of other districts, chartering online schools is about generating charter fees from students in other communities, not improving the options for local families.
There are two directions in which this story takes my mind, both of which are relevant and equal in importance. First, there is the litigation of the charter school wars that played out in the Santa Clarita Valley a couple of years ago. But, also, there is a privately owned outfit based out of the San Diego area that claims to help charter schools comply with special education law. In my experience, that’s not actually what they do. When we start getting into the history of this issue, you will see San Diego come back up again later in this discussion.
First, I have to point out what happened in the Santa Clarita Valley, citing the publicly available evidence, but also sharing some first-hand information. That matter involved Acton-Agua Dulce Unified School District (AADUSD) as the chartering LEA and Albert Einstein Academy for Letters, Arts, and Sciences (AEALAS) as the charter school, which has no website because it went out of business due to fiscal insolvency at the end of the 2017-18 school year.
During the period of the Santa Clarita Valley charter school debacle, one of the students on my caseload was an AEALAS student, and nothing in the articles I can find online will ever come close to describing the hell that student and his family went through. All of the articles online are about fiscal mismanagement, which aren’t untrue, but none of them speak to the horrific special education violations that were going on. We had to involve an attorney who, over several years, had to file for due process against AADUSD for AEALAS’s improper conduct on multiple occasions.
The Santa Clarita Valley story is revealing and opens up many lines of inquiry for voters of all stripes. These issues affect the lives of our children, families, communities, and public education officials throughout the State. One of the most informative articles I’ve seen on that whole mess is, “How a tiny California school district sparked calls for a charter crackdown,” by CalMatters.org.
Rather than belabor all of it here, I encourage you to read the article. The infographic it includes is incredibly helpful. While it doesn’t go into details about the special education issues per se, they aren’t left ignored. The charter’s inadequacies with respect to special education planning briefly identified in the article played out into absolute travesties in real life, before AEALAS ultimately closed down.
For example, none of the articles mention the AEALAS official who drank too much at his place of worship one night early during the school’s first year, and basically told everyone there, most of whom were AEALAS charter school families, that our student’s special education program was going to bankrupt the charter school and close its doors in the first year. This prompted the other charter parents from the same place of worship to send anonymous hate mail (signed with simply “Albert Einstein parents”) to our student’s family telling them they should pull out so his special education program wouldn’t cost all their kids their charter school. So, way to go, religious people, for scapegoating a handicapped child to cover corrupt charter administrative fiscal mismanagement.
Clearly, no one had explained to the drunken administrator’s constituents that categorical special education dollars can only be spent on special education costs, and none of that money could be spent on general education students in the first place. Our kid came with extra money above and beyond the ADA dollars that all students bring to a charter or LEA on a per-pupil basis, specifically to defray his special education costs.
What was really happening was that AEALAS was financially mismanaged from the start. That’s why it couldn’t get chartered by the six districts and two county offices of education to which it had applied before AADUSD granted it a charter. So they targeted a kid with costlier than normal special education needs, blamed the lack of funding on him, and sicced a pack of misinformed, emotionally underdeveloped adults on him and his family. It was an act of misdirection to make the charter’s supporters think AEALAS was otherwise financially solvent all but for our student’s special education program, when the evidence is pretty clear that it never was financially solvent at all.
Our anti-bullying efforts had to start with the adults at AEALAS, not the students. A non-public agency (NPA) bowed out early on and refused to do further business with AEALAS because the assistant principal at that time refused to abide by the scientifically designed behavior plan created for our student by the NPA, preferring instead to tackle him to the ground and scream in his face (our student was 7 at the time). He then attempted to treat the NPA’s professional staffs in much the same way when they tried to get the charter to use positive behavioral intervention strategies, instead.
After the NPA’s Board Certified Behavior Analysts (BCBAs) tried to explain the science of what they were trying to do, the assistant principal became verbally abusive of them and physically threatening. He scared the crap out of them, actually. They took the matter to their NPA’s ethics committee, which wrote a letter withdrawing from service on the basis of AEALAS’s ethics violations, of which the NPA refused to be a part. I’ve never seen anything like it before or since in my entire career.
The real issue was cost. An NPA-designed and -implemented behavior program isn’t cheap, though it’s a heck of a lot cheaper than a lawsuit, and the taxpayers had already funded it. AEALAS was just woefully fiscally mismanaged; it was all about playing games with taxpayer monies provided for the purpose of educating children – a point that keeps getting lost in all the inter-agency infighting that’s going on.
You would think that other school districts in the State would have taken better notice of these developments and the outcomes they’ve produced. Maybe, however, that’s one compelling reason why PVSD is reacting so strongly, now. If so, I have to give PVSD some credit for dealing with the situation within less than a year of issuing the charter, even if it does add to the smarmy politics of the issue.
These things, among many others, need to be sorted in public education. Ideally, PVSD wouldn’t have issued a charter to an outfit capable of performing this poorly in the first place, but second best is admitting your mistake before it’s too far gone, which PVSD appears to be doing, now.
Secondly are my concerns about the bad things creeping out the San Diego area with respect to charter school non-compliance with special education law. These charter violations place chartering LEAs in violation, whether the LEAs realize it or not.
In the PVSD/Peak Prep matter, one of the players in the current matter from the charter school was previously employed by another charter school that was shut down last year following charges filed against the owners of its parent organization, A3 Education, for pocketing $50M in taxpayer funds by the San Diego district attorney’s office. For more information on that, see “How an alleged charter school conspiracy netted $50 million.”
And, here’s where it gets super creepy/interesting, depending upon your point of view. If you look on the Peak Prep website, it opens up by telling you that enrollment is closed. I would imagine so, because another page on the site lists all of the schools shut down by the court-appointed Receiver following the A3 lawsuit.
Now, supposedly, Peak Prep has nothing to do with A3, which is the company busted in the $50M charter scam. But, the Peak Prep Pleasant Valley principal, Shalen Bishop, is listed as the principal of University Prep, which is one of the schools listed as closed on the Peak Prep site. It and the other schools listed are A3 schools.
So, if that case isn’t related to Peak Prep, why is that information on their site? That creates a link between shenanigans in the San Diego area to what’s happening in PVSD. This supports PVSD’s superintendent’s previously quoted statement about this particular “cast of characters” having done this before and knowing better.
But, it gets richer. Also in the San Diego area is a privately owned company called Special Education Assistance and Technical Support (SEATS). SEATS doesn’t have a website. The closest thing I could find was the LinkedIn profile for the wife of the husband/wife team that own and operate SEATS. There are also some job listing sites that come up when you do a search for SEATS, indicating that the agency is looking to hire resource specialists and speech-language pathologists.
But applicants be warned, SEATS reportedly does not cover travel time or mileage to dispatch their special education staffs all over Kingdom Come to serve students in independent studies and online charters. Even if a school is virtual, if a special education student of such a school still needs 1:1 specialist support to participate in instruction, or otherwise needs specialist services in person, the law requires the school to meet the needs of the child, not expect the child to warp themselves to fit the charter school’s pedagogy. The whole point of special education is to individualize the program to meet the unique needs of the student.
SEATS has a reputation for making special education service decisions on the basis of how much they are willing to spend rather than individual student need. They also have a reputation of short-paying their vendors and speaking to them disrespectfully in IEP meetings and/or screaming at them outside of the meetings if they dare to recommend anything SEATS hadn’t already approved for expenditure in advance of the meeting.
Needless to say, none of SEATS’s employees are in a union of any kind. It’s also not a coincidence that the teachers’ unions in California are backing current efforts in Sacramento to take on this whole charter mess. Most of the charters in California, virtual or otherwise, do not have unionized certificated personnel, which has contributed to high turnover rates and disclosures among professionals about what they have been experiencing.
In the course of developing this post, I spoke with a colleague still employed by a virtual charter and she’s just waiting for the State to come after her employer. All of the virtual charters are apparently starting to freak out because of all the accountability that is now coming their way. While she needs a job, she is also morally outraged by what she sees on a daily basis.
The stress of working for this charter is affecting her health and she has no union to turn to, but she also recently had to take her local school district to due process on behalf of her own child with special needs and it’s not like they’re going to hire her to work for them, after that. I’ve received similar feedback regarding work-related stress from former contractors of SEATS over the years that mirror what my colleague at the virtual charter was expressing to me the other day.
SEATS alleges to help charter schools comply with the special education regulatory requirements, but I’ve seen them mostly help charter schools try to dodge the special education regulatory requirements. SEATS personnel have been alleged to tell families that the charter school they chose cannot support their children’s special education needs because they don’t offer “those” kinds of services, so the families need to go back to their regular school districts.
The owners of SEATS once emailed me while they were on a cruise to tell me that the charter school in the case we were discussing didn’t have the money to pay for the services we were requesting. Forget that the charter was paying SEATS to make sure they were provided.
As best as I understand it, SEATS basically tells its charter school clients, “Give us your entire special education budget for the year, and we’ll make sure you don’t get in trouble.” However, the owners pay themselves out of that money, they have multiple charter clients, and they go on a whole lot of trips and cruises while kids with disabilities go without special education services that SEATS is supposed to provide, but “can’t” because their charter clients don’t have the money to pay for them.
From what I’ve seen, it’s not that SEATS is trying to keep charter schools from making mistakes; it’s that SEATS is participating in and profiting from the same charter money scams that are going on all over the State to hide mistakes, if not outright corruption, from authorities. They simply occupy the special education niche within this whole shameful legislative disaster.
One of the other charter systems being scrutinized, now, is the Inspire chain of charter schools. I had a student on my caseload a year or two ago who was an Inspire student. His online/independent study program was chartered by none other than AADUSD. Inspire also has programs chartered in the San Diego area, where the A3 $50M matter was tried. Now Inspire is under scrutiny for, among other things, lack of transparency, and I’m not the least bit surprised.
Like most of my other special education students accessing in-home instruction through independent study and/or online instruction, my Inspire student’s situation wasn’t about school of choice. The brick-and-mortar setting wasn’t accessible to this student because of his disabilities, making his living room the Least Restrictive Environment (LRE) in which he could receive and benefit from instruction. He had previously been in an independent study charter that used SEATS for special education and, when that didn’t work out, they went to Inspire.
When things get so extreme that instruction in the home is the only way for a student to access education in a regular school district, you get a doctor’s note stating that it’s medically inadvisable for the student to attend a regular school and the IEP placement can be changed to home/hospital. The only placement more restrictive is a 24/7 residential facility with a school on its grounds. But, because every kid’s living room is the general education classroom in an online or independent study program, it’s not considered restrictive at all.
Because the general education “classroom” and special education “classroom” are the same thing in an online or independent study program, trying to write an IEP for a kid in such a program is generally a nightmare of technicalities and questions of procedure. Then there are the fights over where special education and related services will be provided.
Even though school districts will hire staffs to provide in-home services as needed to facilitate access to instruction, almost every online and independent study program I’ve ever encountered refuses to send anyone to the home for any special education purpose other than assessment, and even then, sometimes not. So, even if you’ve got a kid whose disabilities make it impossible to get them to participate in instruction and they need in-home BCBA support to overcome that behavioral challenge, most independent and online charters won’t even think of sending over a BCBA or will only do it upon threat of complaints or litigation.
These online and independent study programs will try to get IEP services pushed out into the community rather than into the student’s home, which mostly has to do with the insurance costs and the related liability of sending teachers and specialists into people’s homes. They’ll try to make the parents drive their kids to meet teachers and specialists in the community when these kids are only in home instruction because getting them out of the house is often so hard. One of my past clients would drive to the next town over with their kid to accommodate the fact that SEATS wouldn’t pay their special education teacher mileage or time to drive to their community.
Instead of individualizing the instruction, online and independent study schools tend to use their pedagogy as their excuse for not tailoring the IEP to the individual student, as required by law. So, the bottom line to all of this is that parents of children with special needs in California need to think long and hard about whether a charter school is appropriate for those children, particularly an online or independent study charter.
It’s not that charter schools, even the online and independent study ones, in theory, are a bad idea. It’s that they are improperly regulated in California, so they are becoming something other than what they were intended to be. In no small part, this is because certain elements out there don’t want their kids going to school with “those other kids,” and are trying to twist the charter system into a system of segregation.
Whoever happens to be “other” relative to the parents practicing such bigotry and teaching it to their kids, with the help of the dysfunctional charter system for profit, depends on the parents. Sometimes it’s racism. Sometimes it’s religious extremism. Other times it’s socio-economic classism. Sometimes it’s people who don’t want to be criminally prosecuted for not sending their kids to school and couldn’t possibly care any less than they already do about education.
There are enough people out there who don’t want to abide by public education’s true intent and will try to twist the system to fit their ill-intentions to do obvious harm. Such has been the case with charter schools in California, which is finally prompting a louder call for more appropriate regulations. The concern for many is all kinds of vendors profiting from the existing dysfunctional system without delivering actual educational outcomes, which circles us around back to SEATS.
The situation with Peak Prep Pleasant Valley speaks to the running concerns I’ve had for years about how SEATS is funded. PVSD is asserting that Peak Prep violated the California Education Code and the State’s labor laws by giving away its control of “hiring and termination decisions” to a third party contractor, called Educational Staffing Services (ESS). It is further asserting that Peak Prep “engaged in fiscal mismanagement” by giving over its administrative operations to yet another 3rd party contractor, Accel Schools, which is owned by the same guy who signed the contract between Peak Prep and ESS as ESS’s CEO.
According to PVSD, Peak Prep gave Accel control of its funds and failed to complete requested financial documents. PVSD can’t see how Peak Prep is using its funds because its operating budget is “obscured by a lump sum payment in exchange for the program services, all delivered by Accel.” This is, to the best of my understanding, the same model as how SEATS gets funded.
Like Peak Prep giving its money to Accel in a lump sum, which then shows up in its budget as a single line item with no detail on how that money was spent, SEATS’s clients are giving it lump sums that represent their entire special education budgets for the school year. I have to wonder just how many details they are sharing with their charters and how many of those details the charters are sharing with their chartering LEAs about where that money is going. I have reason to suspect that it’s paying for cruises rather than special education services.
To be fair to vendors and contractors who serve charter schools in California, it’s honest to say that the laws are a mess and even the most well-intended vendor is at risk of getting into trouble over finances just because of how poorly regulated charter schools are in California. Rabbi Mark Blazer, who spearheaded the failed AEALAS endeavor in the Santa Clarita Valley, was quick to point out “bad charter policy” in California, and he’s not wrong that California’s charter policies are bad.
It’s just that most of the charters out there, in my experience, see the bad policies and weak regulations as exploitable opportunities for profit. The children and families horribly affected by their actions are just collateral damage, not the intended targets. Students are just a means to a financial end to these people. The harm done is all the same regardless of intent, and it’s far-reaching.
A whole bunch of very crooked people have now stolen way too many taxpayer dollars in California that were invested by the public into education. California has created a charter school system that is more about moving money around, mostly into the pockets of the wrong people, than educating students. While Betsy De Vos may find that acceptable, most Californians – heck, most Americans – do not.
A system like this entices the least savory people on the planet to parasitically attach themselves to it wherever there is an exposed spot, such as the loophole-laden charter laws in California, and suck the system dry before it realizes how much it has hemorrhaged. The cases making it to media make that clear. The chief perpetrator in the $50M A3 scandal is an Australian national.
The unspeakable number of dollars spent on litigation, whether its families suing to get special education services or school districts suing each other over ADA dollars, takes funding out of the classroom and creates overworked and underpaid certificated personnel. This is a voter issue that isn’t getting enough attention, but with the election coming up later this year, Californians will have the chance to hold the State and their local school boards accountable and elect or re-elect officials who will clean up these messes in a timely, responsible way.
