Based on the professional peer-reviewed research, intersectionality can be understood as the phenomenon in which an individual person’s social position relative to more than one socially defining characteristic, such as race, language, gender, disability, socioeconomic status, etc., come together to simultaneously impact a person’s status in and access to society at large. Where a person fits into the world is a matter of multidimensional considerations.
When looking at the question of whether the current mechanisms of our system of government, and the behavioral rewards inherently built into them, truly serve the good of the people according to the will of the people and the rule of law, the importance of intersectionality to the accuracy of our analyses cannot be overstated. There is no “silver bullet” that will eliminate all of our social challenges with a single shot. Solving our complex, interconnected problems takes complex planning and execution.
Society is a complex system of inextricably intertwined considerations that all have to be accounted for in order for everyone’s needs and rights to be equally met. There are no cutting corners, and we now have the computing power to stitch together effective systems of equity for all into the ways our government functions, if the technology is just used the right way. The fail-safes that can be built in and the audit trails that would be automatically created would prevent and capture any attempts at abuse just as a matter of normal functioning.
We aren’t there yet, but the application of enterprise-class computing technologies to the delivery of publicly funded services is inevitable, and it will streamline a lot of inter- and intra-agency operations, trimming the administrative fat within a lot of State and local publicly funded programs. Eliminating human error and dishonesty from a public agency’s administrative processes prevents episodes of noncompliance that puts the agency in legal jeopardy.
I’ve told the story in past posts of the case in which one of my students went for months without a needed piece of equipment ordered by his Occupational Therapist (OT) as an accommodation for his sensory needs in the classroom, which meant he was up and out of his seat disrupting the instruction, because of an interpersonal feud between two mean old ladies who hated each other in administration. One of the mean old ladies worked at the student’s local school site in the office, processing purchase requisitions and submitting them to the school district’s main office to be processed into purchase orders.
Now, this was back in the day and all of this was done using paper and the district’s own internal courier service, commonly referred to as “brown mail,” because most things came in those big brown manila envelopes. There was no email. If things needed to move faster than brown mail, it was done via fax. So, context.
The other mean old lady in this situation worked in the accounting office at the district offices. I’m not exactly clear on the details of why they hated each other so much, but I do recall that it had something to do with either a green bean casserole or a three-bean salad – I can’t remember which – at some kind of district holiday party. Like, maybe both of them brought the same thing and it turned into a feud over whose was better, or something? I don’t entirely recall the details, I just remember it was something to do with beans and a holiday party and that it was totally dumb.
The mean old lady at the district offices would sit on the purchase requisitions submitted by the mean old lady at the school site just out of spite, without any regard for the people who had submitted the requisitions to the mean old lady at the school site or any students who may have been impacted by her behaviors. The mean old lady at the school site wasn’t willing to call over to the mean old lady at the district offices to find out what had happened to her requisitions, so she’d become hostile with the school site staff who would ask her where their stuff was. They became afraid to ask her where their stuff was, and just took it as a given that the average purchase would take at least 60 to 90 days before it came in.
Computers don’t do any of that! As many concerns as we have about computers processing things correctly, that comes down to how they are coded. They aren’t going to fight with each other over three-bean salads at a Christmas party and then undermine each other professionally to the detriment of the constituents they are being paid by the taxpayers to serve.
So, knowing that the implementation of the technology is inevitable, our job as informed voters and taxpayers is to understand what that technology needs to be able to do in order to truly perform according to the principles of democracy and the rule of law. That technology must account for how intersectionality impacts every person, whether staff, vendor, or constituent, who must participate in the execution of the government’s responsibilities to the people.
This brings me to a very specific issue within special education in the State of California that has affected way too many families in a detrimental way, which is the intersectionality of the African-American experience with special education in the public schools. This is an under-researched and poorly regulated aspect of our current modern society, here in California, and as the State seeks to shore up democracy in spite of the many forces presently working to undermine it, I believe this specific instance of intersectionality particularly deserves the State’s attention.
I’m speaking specifically of the long-outdated and now inappropriate Larry P. requirement. To quote the State:
“The Larry P. Case“
In 1972 in the Larry P. case, the United States District Court for the Northern District of California found that African American students in the San Francisco Unified School District were being placed into classes for “Educably Mentally Retarded (EMR)” students in disproportionate numbers, based on criteria that relied primarily on the results of intelligence quotient (IQ) tests that were racially and/or culturally discriminatory and not validated for the purposes for which they were being used1. In 1979, the court permanently enjoined LEAs throughout California from using standardized intelligence tests2 for (1) the identification of African American students as EMR or its substantial equivalent or (2) placement of African American students into EMR classes or classes serving substantially the same functions3.
The court held that court approval would be required for the use of any standardized intelligence tests for African American students for the above purposes. The court laid out a state process for this.
The EMR category no longer exists. The court has never held hearings to determine the “substantial equivalent” of the EMR identification or placement, or whether IQ tests are appropriate for assessing African American students for identifications or placements other than the substantial equivalent of EMR. The state process to seek approval has not been invoked.
Although the law on assessment has evolved, as described above, the Larry P. injunction remains in place, and the court retains jurisdiction over its enforcement. The Larry P. injunction does not apply to tests that are not considered standardized intelligence tests.
Footnotes 1Larry P. v. Riles, 343 F. Supp. 1306, 1315 (N.D. Cal. 1972). 2 The court defined a standardized intelligence test as one that result in a score purporting to measure intelligence, often described as “general intellectual functioning.” Larry P., 495 F. Supp. 926, 931 n. 1 (N.D. Cal. 1979), affirmed in part, reversed in part, 793 F.2d 969 (9th Cir. 1986). 3Larry P., 495 F. Supp. at 989.
Here’s what everybody needs to get, and which way too many school psychologists and other special education assessors in California’s school districts do not: Larry P.only applies to norm-referenced intelligence quotient (IQ) tests that result in a full-scale IQ (FSIQ) score. It doesn’t apply to the Southern California Ordinal Scales of Development (SCOSD) Cognition subtest. It doesn’t apply to any standardized speech/language assessment measures. It has nothing to do with OT. It has nothing to do with measuring academic achievement using standardized assessment tools.
Unless the assessment measure is designed to produce an IQ score, Larry P. does not apply. But, I’ve now handled a half-dozen cases in the last couple of years in which the whole reason why the students’ IEPs were poorly developed was because they’d been poorly assessed by people who didn’t score any standardized measures for fear of violating Larry P. because they didn’t actually understand the Larry P. rules. The professional development on this issue throughout the State is atrocious.
More to the point, the State needs to invoke its process to seek approval to now use the current, modern, unbiased IQ tests in the special education process, because the assessment failures caused by poorly trained cowards who don’t have the sense to go onto Google and look up the rules themselves and/or push back against administrative supervisors steering them in a non-compliant direction are causing a cataclysm of disastrous consequences at the intersection of the African-American experience and childhood disability in the State’s public schools. This just feeds these kids into the gaping maw of the School-to-Prison Pipeline.
I want to take it one more step further than that, though. I want to encourage more representation of the African-American community in special education assessment. I want to see more college students of color going into school psychology, speech/language pathology, OT, assistive technology, etc., so that they can be there to advocate from an informed, expert perspective within the system for the children from their own community who are at risk of being otherwise misunderstood by people who lack the perspective necessary to appreciate the long-lasting impacts of their assessment errors.
People who don’t actually understand the rules can over-interpret them in an over-abundance of caution. They will not do more than what’s actually been prohibited for fear of doing something they aren’t supposed to, to the point that they’re not doing what they are supposed to be doing. They go from one extreme to the other. In an effort to avoid committing a State-level Larry P. violation, they commit a violation of federal law by failing to appropriately assess in all areas of suspected disability according to the applicable professional standards and the instructions of the producers of the standardized measures used.
It’s currently a “from-the-frying-pan-into-the-fire” situation for the State that is wrecking lives and creating special education violations left and right. The State is setting up its public schools to fail at this particularly significant intersection of social factors, at the same time that the State is seriously considering reparations to the African-American community here in the State.
I promise you that none of the assessors I’ve encountered in the last few years who have been committing these Larry P. violations are actually trying to be hurtful. None of them know what they’re supposed to be doing and they’re making dumb errors in judgment, often under pressure from authoritarian administrators who don’t know an IQ test from a roll of toilet paper.
I’m advocating, here, for both the development and implementation of enterprise-class computing technologies that will automate as much of the public sector’s administrative functions as possible according to the applicable regulations, including mandated timelines, as well as for the State to request the court to reverse Larry P. so that schools are no longer enjoined against using current, valid, appropriately normed IQ tests in the assessment of African-American children in California for special education purposes. These two things matter to each other.
Larry P. is no longer a solution, it’s a problem. It’s not that assessors couldn’t work around it; it’s that they don’t know how to work around it and they commit more errors trying to than anything that could possibly go wrong actually using an IQ test on an African-American student in this modern day and age. Further, the specific ecological factors that contribute to the success of students who are impacted by the intersectionality of their disabilities with other traits that can affect their social standing, such as ethnicity, need to be understood as specific data points worthy of intense administrative and policy-making examination.
As a matter of civil rights and monitoring its own internal compliance with Section 504 of the Rehabilitation Act and the Americans with Disabilities Act, one would hope that a public education agency would want to know if particular classes of students are somehow being under-served and need more attention from the adult decision-makers involved in their educational experiences. Who is monitoring each school district’s compliance with Larry P., right now? Is that the job of each district’s 504 Coordinator? How is Larry P. compliance in the field such an issue, still, after all of these years and, more to the point, why is it even still a requirement after all of these years?
Analyzing data from an enterprise-class computing solution regarding intersectionality among special education students would help public education agencies recognize trends of noncompliance and programming failures. This would include rampant Larry P. violations producing shoddy assessments that result in poorly crafted Individualized Educational Programs (IEPs) that fail to deliver appropriately ambitious educational benefits according to the current Free and Appropriate Public Education (FAPE) standard pursuant to the 2017 Endrew F. Supreme Court decision.
Issues of intersectionality can be captured by competent data analysis, which can be greatly facilitated by properly coded enterprise-class computing technologies, and used to ensure that all students, pursuant to Endrew F., receive an IEP appropriately ambitious in light of their unique, individual circumstances. A properly configured system would be spitting out reports detailing the instances of noncompliance to the inboxes of the key decision-makers so they could respond as quickly as possible.
Had such a system already been implemented, the Larry P. violations I’ve encountered all over the State over the last couple of years would have been caught among all the others I haven’t encountered and either rectified or prevented altogether by the State realizing what a colossal disaster Larry P. has become in the field and executing the process outlined by the Court to put an end to it. Were the State monitoring the right data points, it would have realized that Larry P. needed to be ended a long time ago and that it causes infinitely more problems than it solves because it forces assessors to assess African-American students differently than everyone else, which is not equal access.
Frankly, this lack of equal access is more discriminatory than using an IQ test could ever possibly be and becomes even more so when the quality of the assessments are compromised because the assessors don’t know how to comply with Larry P. and they jack up their entire evaluations in the process. Jacked up evaluations lead to jacked up IEPs, which lead to the denial of educational benefits and all the consequences that these children will experience over their lifetimes as a result of being deprived of a FAPE.
The people who make these kinds of errors will be among the first to engage in victim-blaming once these students end up in the justice system, acting like it was unavoidable and inevitable, because they can’t recognize or accept the degree to which they had a hand in making it happen. The people who do it on purpose hide among the people who don’t know what else to do, fueling the victim-blaming, which becomes part of our current, exhausting, ridiculous, ongoing culture wars.
I would rather see Larry P. ended so that it’s no longer creating confusion among assessors in the field and technology implemented that will identify when things like this are going on so they can be stopped early on. I would much rather monitor digital data as a compliance watchdog as I get older than have to go in, one kid at a time, to hold the public education system accountable to its mandates under our democracy’s rule of law. So long as there is transparency in how the system operates and all the real-time data, other than anything personally identifying, is accessible to the public to be analyzed for compliance failures, technology stands to enhance the functions of democracy. But, it all comes down to how its coded.
I expect that watchdogs and advocates in the future will spend more time analyzing system-generated data than necessarily representing individual students, and that a healthier partnership between the public sector and the citizenry can evolve in which the user feedback shared with system developers and operators can be used to enhance its functions and allow each agency to serve its mandated purposes in a compliant manner that is both cost-effective and substantively effective.
The more that social and behavioral science is integrated into the policies, procedures, and applied technologies in the public sector, the more effective and efficient they will be. The more integrated the technologies among all of the public agency stakeholders, the more cohesive the communications and execution of time-sensitive tasks. I see a future in which systemic violations, such as rampant Larry P. failures, will trigger an examination of the intersectionality of disability and other social factors, such as ethnicity, on compliance and help identify when something like getting rid of Larry P. needs to happen sooner rather than later.
I see this Larry P. mess as yet another compelling argument for the implementation of enterprise-class computing technologies within public education administration. I hope the State is listening.
I’m long overdue to post new content to the KPS4Parents blog, podcast, and social media, but it’s been a busy school year. The continuing fallout from COVID-related school closures that disrupted the educations of most children, and had even more profound effects on our learners with disabilities, has kept me busy.
It’s one of these COVID-related cases that brings me back to the blog and podcast today, because after over two years of waiting for a complaint investigation to get done that was only supposed to take 180 days, the United States Department of Education (USDOE), through its Office for Civil Rights (OCR), finally concluded an investigation of Oxnard Union High School District (OUHSD) and how it handled its students with disabilities during COVID-related school closures. To say I and the student’s family now feel vindicated is an understatement.
You can read OCR’s findings and the resolution agreement that OUHSD entered into with OCR to resolve its violations by clicking here. I’m not going to belabor every little thing in those documents because they speak for themselves and you can read them at your own convenience, but I will summarize them, here. In short, not only did OCR find that the District violated my client’s civil rights, it likely violated the rights of its other students with special needs by refusing, as policy, to provide any in-person disability-related supports and services during campus closures, even if they were necessary in order for the student to access learning.
At the beginning of the pandemic, when the schools were first closed down here in California, the Governor’s office understood immediately that our special needs students were going to be disproportionately affected by the school closures. With the new budget during the summer of 2020, the Governor committed $1B to cover compensatory education costs for students with disabilities who lost educational benefits during the school closures because they couldn’t access the disability-related supports they needed in order to learn.
Back in the Spring of 2020, right after the pandemic hit and the schools shut down, both the Governor and USDOE reminded the public education system that its legal obligations to its students with special needs had not changed in spite of the pandemic and that local education agencies should do everything possible to continue implementing services and supports to students with disabilities during campus closures. But, there was also that extra money set aside by the Governor to compensate students for learning they lost due to unavoidable losses of educational benefits and, presumably, if their local education agencies otherwise botched their pandemic response to the detriment of their kids with special needs.
I’ve been negotiating Informal Dispute Resolutions (IDRs) to claims like these ever since in-person learning resumed, and I’m still dealing with the residual effects of the school closures across my caseload. Which brings me back to this most recent OCR investigation outcome.
What OCR and OUHSD are now doing is working together to repair the harm done to all of the OUHSD students with disabilities at the time of the COVID-related school closures who did not get the services and supports they needed such that they are now owed compensatory education. This is a very big deal!
According to the Resolution Agreement entered into by the District with OCR, OUHSD must send letters to every potentially impacted student and offer a meeting to determine if any compensatory education is owed to them and, if so, document how it will be provided. OUHSD is not being left to its own devices to determine whether it has met each affected student’s needs; OCR will be overseeing OUHSD’s implementation of these remedies to make sure they’re done correctly. OCR will provide the technical assistance to OUHSD to help it clean up this mess and set things straight.
In theory, my work here is done, other than to work with the family of the student for whom I’d filed the complaint to make sure she gets the compensatory education that she is now due. But, for all of the other OUHSD students and former students impacted by this outcome, I still have concerns.
None of the other affected students and their families knew about this complaint. They’re going to get a letter in the mail that they weren’t expecting with an offer to meet with the District to determine if their kids are owed any back-due educational services and not necessarily understand what it is, why they are getting it, or how important it is.
Today’s post is about making sure that the other students who are impacted by this outcome get what they need and are due. I know that OCR will be working with the District to make sure that the families who avail themselves of the offer to meet regarding their possible compensatory education claims have a fair shot at getting the right stuff. I’m not as worried about those families.
The families I’m most worried about are the ones who don’t understand English and/or their rights. We have a fair number of households in the District in which the parents may not be educated sufficiently to understand what any of this is about. Unless they actually take the meeting with the District to learn more, OCR is not in a position to help make sure their kids actually get what they need.
So, my goal with today’s post is to make sure that all the affected OUHSD families are fully aware of what that letter inviting them to meet with the District to discuss compensatory education really means and that they take those meetings and get the remedies that are due to their children. We have to remember that we already paid taxes so these kids could get these services, and then that money was never spent on serving them appropriately during campus closures.
This is about belatedly delivering the services that had been previously purchased by the taxpayers but never actually delivered to their intended recipients. The only part of this that brings new costs into the picture is all of the extra work that will now have to be done to help these kids recoup lost learning and catch back up after having been deprived of what had already been paid for in the first place.
After all of the OUHSD students who were impacted by this outcome, my next concern after that is all of the other students throughout the County whose school districts also refused to provide in-person services during the COVID-related campus closures who were not similarly held accountable by their regulators. The California Department of Education (CDE) has done a shoddy job, in my experience, of addressing these exact same concerns in other area school districts.
None of the school districts in Ventura County, to my knowledge, provided in-person services to any students with disabilities during the campus closures. In fact, I fought tooth-and-nail throughout the period of campus closures with a number of school districts throughout the State to address these same concerns. This instant OCR complaint was just one of many efforts I made to protect my kiddos during campus closures.
One family was able to use their health insurance to get in-home ABA services so their child had 1:1 behavioral supports during distance learning, which was the only reason he was successful, but that was an isolated incident. Another family was able to negotiate a settlement agreement with their district to reimburse the parents for paying for a private aide to come to their house to support their child during distance learning, but that was, again, an isolated incident. Most of my students sat at home with their moms as their 1:1 aides, which either worked or didn’t, depending on the student.
If you look back through the content I created for KPS4Parents during the COVID-related campus closures, you’ll see a lot of what I published back then had to do with the mandates that special education and other disability-related services were required to continue without reductions in services and supports. It’s nice to know that the United States of America has our students’ backs on that point, but they can’t investigate the case of every student with disabilities in America. It took over two years to investigate just this one, although systemic violations were uncovered in the course of it doing so.
I sincerely hope that the outcome of this investigation benefits not only the students of OUHSD who failed to receive appropriately ambitious educational benefits because of the COVID-related campus closures, but also similarly impacted students in all the other school districts that used the pandemic as an excuse to cut corners and not pay for services that were so seriously needed by so many students with disabilities. This outcome needs to impact more students with special needs than just those within the OUHSD attendance area. It needs to set an example.
I find myself frequently telling people that the measure of whether a society is civilized or not goes to how well it takes care of its most vulnerable members, and that special education law is the canary in the coalmine of American democracy. If we can’t respect the civil rights of our children with disabilities, what does that say for the civil rights of the rest of us?
School districts are not for-profit private businesses; they are government agencies funded to execute the functions of our society for the benefit of the public. We should be able to trust our local government agencies, including our local school districts, to abide by the rule of law.
KPS4Parents is currently reaching out to various stakeholders in Ventura County to make sure that the other families affected by this outcome understand exactly what this is, how they are affected, and how to make sure their kids get what they actually need. If you are part of an affected family and need assistance with this process, KPS4Parents will do everything we can to support you, including putting you in touch with other advocates and attorneys if necessary to handle the sheer volume of families who may need this level of assistance.
If you are part of another organization or agency that also serves students with special needs in Ventura County and/or their families, and would like to help area families navigate this process, please contact us and we’ll get back to you as soon as we possibly can. It’s exciting to be part of the solution, but the work is just getting started and our agency can’t do it all alone.
We’re part of the larger community of loving, democracy-minded people who advocate for social justice issues. We need the help of our social justice partners to make sure all of these affected families are properly supported and served, and to help us generalize these remedies to benefit other similarly affected students in other communities. It takes a village, so I’m asking for the rest of the village to step up and help me help all of these other affected families, and for the families who are already experienced with this kind of stuff to help other families who might not be so savvy.
This is an exciting time for systemic change, and I want families of children with special needs to feel empowered by this and set the example on how to participate in our democracy at the local level in a meaningful and impactful way. Bottom line, screaming at school board meetings about their personal beliefs and feelings gets parents nowhere, but regulatory complaints filed to enforce the rule of law can be everything.
The school year hasn’t even started yet and Los Angeles Unified School District (LAUSD), the second-largest school district in the country, has already hit the ground running with illegalities left and right, not the least of which is the systemic policy issue that I’m focusing on in today’s post. It’s hardly the only violation, but its a systemic one that stands to continue hurting a lot of children with disabilities, particularly our kiddos on the autism spectrum.
What I’m about to tell you would sound far-fetched if it was not for the fact that the United States is currently engaged in a soft civil war in which right-wing extremists are attempting to change us from a democratic republic to a ethno-religious dictatorship. The evidence indicates these decades-long plans were started at the local level in city councils, school districts, and various county agencies, then percolated upward into our federal agencies before culminating in the January 6, 2021 insurrection against our democratic republic.
The reality is that I’ve been dealing with these kinds of behaviors from local education agencies for the last 31 years, and there is no end in sight for many families in local education agencies as large as LAUSD. It’s the Titanic, it’s been on a direct course for an iceberg for decades, and it will collapse and sink under its own weight before too much longer at the rate it’s currently going.
This is particularly the case as the pro-democracy backlash to recent fascist efforts to overthrow our system of government is gaining momentum as more and more high-ranking fascist individuals at the federal level face the consequences of their actions with the J6 Hearings and related Department of Justice (DOJ) investigations. When the example is finally set at the national level and all of those responsible for J6 are either behind bars or being pursued by the feds and Interpol after fleeing the country, the trickle-down of legal consequences to State and local government agencies that have been engaging in fascist practices all this time will be severe.
But, we’re not there, yet. The only way to really get there is to make public what the heck is really going on so that taxpaying registered voters in Los Angeles can make informed decisions about the people they entrust with the responsibility of educating their children, particularly their children with disabilities. So, let me get into the actual issue to which I want to call immediate attention, that being LAUSD’s unlawful and unethical method of conducting Functional Behavioral Assessments (FBAs), which it has implemented as a policy, district-wide, according to District personnel.
Title 34, Code of the Federal Regulations (34 CFR) Section 300.304 describes the parameters for how special education assessments are supposed to be conducted. 34 CFR Sec. 300.320(a)(4) mandates the application of the peer-reviewed research to the design and delivery of special education, which includes the assessment process. Taken together, these laws require that competent assessors acting within the scope of their qualifications conduct assessments according to the professional standards that apply to each of the various types of assessments being conducted, in conformity with the peer-reviewed research.
There is no standardized measure, like an IQ test, when conducting an FBA, though there are assessment tools and instruments that can help inform the process. Instead, the applicable science describes the types of critical thinking and lines of inquiry a properly trained behaviorist must apply when determining the function of a maladaptive behavior and the most appropriate ways of responding to it. The science used is referred to as Applied Behavioral Analysis (ABA).
ABA is not a special education service, per se. ABA is the science behind effective behavioral interventions. ABA services requires scientists to think independently in applying the known science to the unique facts of each individual person assessed. It’s not a paint-by-numbers, one-size-fits-all measure. It’s not psychometrics in the sense that norm-referenced standardized tests will be administered to the student. It requires more thought and higher-level critical thinking skills than that, and the people who are certified to do it must prove their abilities to function that way.
There are no formal criteria for FBAs, specifically, but they are based off the Functional Analysis (FA) procedures developed by Dr. Brian Iwata and his colleagues in their published research. While being certified as a Board Certified Behavior Analyst (BCBA) is supposed to confirm that a behavioral scientist is adequately qualified to analyze behavior, BCBA certification is not required in California for conducting FBAs in the special education context. Anyone who has gone to graduate school for a school psychologist credential should have theoretically been trained on ABA just as a part of their grad school education.
My master’s degree is in educational psychology and I had to study ABA more than once during my higher education. It is not typically part of a special education teaching credential program, other than to mention that other professionals are available in the special education context to conduct FBAs and provide ABA-based behavioral interventions.
That is, except, in LAUSD, which is using special education teachers to conduct its FBAs. It will hire Non-Public Agencies (NPAs) that specialize in providing ABA services through and under the supervision of BCBAs, but it will not allow the BCBAs to actually conduct their own FBAs to inform their own Behavior Intervention Design (BID) services, which then compromises the quality of the Behavior Intervention Implementation (BII) services. This is a district policy, according to various LAUSD employees with whom I’ve been speaking about this since April, and they don’t seem to understand why I have such an issue with it.
First, the 8th grade LAUSD student I’m currently representing in which this issue has come up has been “assessed” under this model since the 1st grade and he still has the same behavioral challenges today that he had in 1st grade. He’s made no improvements and now he’s over 6 feet tall. His toddler-like tantrums result in significant property destruction, which has only gotten worse as he’s gotten smarter and bigger over time, and he puts himself and others at risk of injury when he throws them. Not only does LAUSD’s method of conducting FBAs fail to comply with the applicable science and law, it does not work!
LAUSD’s solution is to offer yet another illegal FBA conducted by an inexpert special education teacher who must then hand off their “data” to a BCBA who is then supposed to somehow magically engage in scientifically valid BID and supervise a Registered Behavior Technician (RBT) who is supposed to provide the BII in conformity with the plan designed by the BCBA. When I point out the epic failure of logic behind this practice to LAUSD personnel, I’m met with the Orwellian Doublespeak of corrupt District administrators and the blank stares of ineptitude and rote recitations of District policy from school-site personnel.
One school site administrator actually tried to get me to lie to the parent and trick him into doing something he otherwise was not inclined to do. I analyzed her behavior according to ABA standards based on what information I could gather and ultimately concluded that she’s as stupid as she is corrupt; her behaviors were automatically reinforcing and externally reinforced by her employer, which appears to employ the dumbest people it can find in positions of authority well beyond their critical thinking abilities and professional skills so that they can be the clueless, easily manipulated henchmen of the mafiosos at the main office on Beaudry.
Basically, what we are dealing with here is science denialism and unconstitutional conduct on the part of public officials to the tune of hundreds of millions of taxpayer dollars. LAUSD is the government, regulated by the rule of law and answerable to its local constituency, but the people generally have no voice against this behemoth of a self-serving institution, which is why I’m talking about it, here.
LAUSD is long overdue for a reckoning regarding its systemic illegal conduct across all aspects of special education, and it’s probably safe to say that if the District is willing to compromise its most vulnerable constituents, that being children with disabilities, it’s likely equally comfortable violating everybody else’s rights, as well. I can’t speak to the other social justice issues in which the District might be in the wrong, but it has historically failed on the special education front ever since special education and related civil rights laws were first passed in the 1970s.
Disability-related civil rights law is truly the canary in the coal mine for American democracy. The measure of how civilized a society is can be determined by how well it takes care of its most vulnerable members, and children with disabilities are among the most vulnerable humans on Earth. If LAUSD is willing to treat children with disabilities this way, it’s top administrators should probably swap out their dress suits for animal pelts so that their lack of civility is adequately conveyed. Otherwise, they’re just wolves in sheep’s clothing, preying our our most vulnerable children.
The Chanda Smith Consent Decree came after decades of unlawful special education conduct and was in place for decades thereafter in an effort to end the District’s unlawful conduct, which it failed to do. The courts attempted to pull LAUSD out of the gutter with the consent decree, but LAUSD just pulled the courts into the gutter with it. An Independent Monitor was hired to oversee the consent decree until such time that LAUSD came into compliance with special education law, but that day never came.
Apparently, presuming that compliance would never happen, the Independent Monitor began engaging in equally corrupt behavior, assuming lifelong job security for so long as LAUSD continued to violate special education law and grifting the system by overpaying consultants who failed to make any kind of perceptible difference with respect to LAUSD’s compliance. The Office of the Independent Monitor was shut down and the consent degree was closed out following an audit that revealed excessive unnecessary spending by the Independent Monitor that could not be related to the District’s conformity with the consent decree.
Further, while it may be true that the District legitimately improved some of its special education programming, by no means had to come close to a reasonable degree of compliance, as evidenced by the number of families who have still had to file lawsuits to get services, and even that doesn’t guarantee they’ll get all of the right services for their children. Many get only some of the services their children need, making their IEPs as effective as watered-down penicillin in the face of a raging bacterial infection. For all the services they may actually get that they need, the absence of the other services they also need undermines any successes they may have in the areas in which they’ve actually received help.
Which circles back around to the question that serves as the title to today’s post/podcast, which is, “Is LAUSD Run by a Fascist Mafia?” From the outside looking in, this seems to be a legitimate question.
Let’s start with the fact that LAUSD hired computer coders to work with its in-house counsel decades ago to bastardize a piece of insurance software known as Welligent into its IEP software. As a result, LAUSD has basically bureaucratically obligated its school site personnel to break the law because of the software limitations of Welligent, or at least how it has been coded by the District, that fail to even offer compliant options to its users in many areas of special education.
For example, let’s look at the assessment plan, redacted for privacy, that was offered to my current LAUSD student, which was generated from Welligent, and compare it to another redacted assessment plan for another student on my caseload in a different school district who also needed an FBA.
Example 1, below, is the assessment plan offered to my LAUSD student, and shows the FBA as an “alternative assessment” to be conducted by a special education teacher. “Alternative assessments” usually refer to non-traditional assessment measures or methods from those typically used in the place of standardized testing.
For example, using curriculum-based assessments in the classroom to gather informal data on actual classroom performance can be a more reliable method of assessing academic achievement than a standardized measure like the WJ-IV or the WIAT-4. None of this assessment plan makes sense with respect to the FBA.
Example 1 – page 1
Looking at the table of “standardized” testing from page 2 of this assessment plan, which is referenced by page 1, FBAs are not listed. Item 7 targets “Adaptive Behavior,” but that goes more to independent living skills and self-care, like dressing, toileting, and navigating the school setting. FBAs do not fit that category and the LAUSD assessment plan has no category that FBAs would logically fit. This was a deliberate coding decision made in Welligent by the District that has absolutely nothing to do with adequately assessing children with special needs and offering them appropriate behavioral supports at school.
Example 1 – page 2
Example 2, below, shows a different student’s assessment plan from a different school district. This assessment plan offers the student involved an FBA to be performed by the school psychologist in collaboration with a district behaviorist. This actually makes sense.
In this student’s case, it turns out the special education teacher was the problem and she got reassigned to a different classroom. This student had gone without behavioral challenges until she was placed in this teacher’s class, and the FBA made clear that the teacher was the one provoking the behaviors. Objectivity is one of the most critical aspects of science that must apply to special education assessments. Can you imagine if she had been trusted to conduct the FBA?
I can assure you the quality of the outcomes using appropriately qualified people who actually care makes all the difference in the world. Whereas our LAUSD student has historically been assessed according to plans virtually similar to Example 1, above, and has now gone for over six years with next to no improvements in his behaviors, our student from whose case Example 2 was taken is now thriving in school with no serious behavioral challenges of any kind.
To be clear, it’s not like the student in Example 2 has never had issues with this school district. There were problems years ago when she was little that I had to deal with, but it had been smooth sailing until she ended up in that whacko teacher’s classroom, last school year.
Because the student’s behaviors were interfering with her learning, even though we suspected the teacher was likely the problem, we didn’t go in accusing the teacher of anything. We simply asked for an FBA to get to the bottom of the behaviors and the next thing we knew the teacher was gone. The FBA report we got back was very well-written and explained the facts without demeaning the teacher or doing anything else unprofessional.
We hit a huge bump in the road that had the potential to go really badly, but the District in that student’s case handled it professionally, compassionately, and responsibly. I’ve yet to see any of those qualities from anyone I’ve dealt with from LAUSD regarding my LAUSD student. The difference in handling is night and day, and I’ve caught both districts messing up before. The difference is that my other student was met with professionalism, while my LAUSD student is being met with science denialism and an utter abandonment of the rule of law.
It is this refusal to abide by science and law on the part of the second largest school district in the nation that raises the specter of fascism. It’s all very “Marjorie Taylor Green-ish.”
Consider that California has adopted the Common Core as its State Standards. The purpose of these standards is for our public schools in California to teach students how to use academic knowledge and skills to solve real-world problems, yet LAUSD doesn’t use academic knowledge and skills to solve problems. It denies science and breaks the law.
How can people who deny science teach our kids to use science to solve problems? How can people who have abandoned the rule of law credibly teach social studies, particularly civics, and educate our kids to become knowledgeable participants in American democracy? How is this anything other than fascism and when are the feds going to do something about it?
I tried filing a complaint with the U.S. Department of Education, Office for Civil Rights (OCR), but it twisted my words into a narrower complaint than what I alleged and then declined to investigate its twisted version of my allegations, which is a first for OCR with me, I have to admit, and it makes me fear for our democracy even more, now.
If OCR is too intimidated by LAUSD to investigate such that it makes up lame excuses as to why it shouldn’t have to, how does that not also suggest the presence of organized crime within LAUSD so large and expansive that even the feds won’t touch it? DOJ is a little busy with the J6 investigations, but I suspect all of this stuff in inter-related as multiple spokes of a wheel-and-spoke conspiracy to overturn democracy in America.
Remember that Betsy DeVos tried to shut down OCR after she was appointed Secretary of Education by the 45th President until she had the snot sued out of her and subsequently reinstated it. She also admitted that her goal was to abolish USDOE as the Secretary of Education; she took the job with the specific intent of shutting down the entire agency from within.
How many people from the last administration continue to poison the well at USDOE? It’s the same question Americans have to ask about every single federal agency, but as pointed out in the above linked-to article from The Root describing DeVos’ desire to abolish USDOE altogether also describes the conference at which she recently shared her continued desire to shut down USDOE as teaching far-right parents how to build conservative-dominated school boards in their local communities, ban books, and a host of other undemocratic activities intended to deny the civil rights of children with disabilities, LGBTQ+ students, students of color, and students from other protected classes.
It’s an anti-science, anti-democracy approach that includes anti-vax, anti-masking nut-jobs who are too dumb to know how dumb they are and/or are profoundly mentally ill, being manipulated by grifters like DeVos to vote against their own interests in favor of the interests of the grifters. It’s the “have-nots” falling for the tricks of the “haves” who know the only way they can have way more than what they actually need is to make sure others don’t have enough.
Today’s post isn’t about documenting how I’ve figured out a way to overcome whatever fascist mafia might control LAUSD. It’s about exposing what I’ve witnessed and adding my voice and the voices of the LAUSD students who aren’t getting what they need to the conversation in the hopes that it will spark others to also help hold LAUSD to account for its egregious violations of special education law.
I’m hoping that voters in LA will learn more about these issues, understand that special education social justice issues cuts across all other demographic groups, and no segment of society is safe for so long as our government is allowed to conduct itself in this way. If you are involved in any type of social justice issue in which LAUSD has engaged in discrimination and withheld services it is legally required to provide, consider getting involved with our Meetup Group, Social Justice Series – Everyday Local Democracy for All.
Our Meetup Group is not limited to people living within the LAUSD attendance area, but we certainly have Angeleños already in the Group. You can comment/DM us directly on Meetup or on our social media, or use our Contact Us form on our site with any questions/feedback. We don’t have all the answers, but awareness is the first step to solving a problem, so we’re starting there.
Christine Priola, OT, on the right in the Vice President’s Office of the Senate during the January 6, 2021 insurrection at the Capitol in Washington, DC
On January 6, 2021, a group of people, radicalized by false propaganda generated by the 45th President of the United States and his co-conspirators, attacked the United States Capitol with the intent to kidnap and/or murder members of Congress and the Vice President. This is an event that will live in infamy for so long as America remains a nation, and be blamed for it if it does not.
I’ve been working in special education advocacy, helping parents protect their children with disabilities from physical, emotional, and educational abuse/neglect by the public sector, primarily the public school system, since 1991. By now, you would think there’s nothing new for me to see when it comes to all the ways that adults can do wrong by those among us with disabilities. Clearly, I was wrong.
These recent events at the national level have left me with a whole new set of concerns that I believe are important to talk about, right now. Not the least of these concerns is the fact that a profoundly mentally ill president, along with his pathologically self-serving sycophants, exploited the suffering of some Americans with mental illness and the unfounded sense of entitlement experienced by other Americans with mental illness.
In the end, it’s a bunch of people with mental health issues frenzying like piranha at the smell of blood in the water and taking down the rest of us with them. The inmates are literally running the asylum, right now, and the survival of us all rests on the shoulders of those of us intact enough to realize what is happening, and equipped to deal with it.
For the last 30 years, it’s been my observation – and one I’ve repeatedly shared – that there are individuals employed within the public education system who believe children with disabilities are expendable and unimportant. In a sea of deprived students in general, special education students are uniquely further deprived because of their disabilities.
It’s been my observation that these individuals see their constituents – in this case, our children – as a means to their own personal financial ends, and nothing more. When the costs of educating these constituents increases due to disability, they become a hated burden to those looking to profit off them.
It’s not like the public education system is doing that great by any of our kids, right now. It’s just that problems that impact education in general tend to have a magnified effect on our kids with special needs. Public school officials will say things like, “My heart is bleeding for your child. I wish there was something I could do,” when there’s totally something they could do. They just don’t want to pay for it, which is unlawful.
Special education laws would have not become necessary back in the 1970s if it were not for the fact that people who do not believe in science or law were already employed in positions of authority within the public education system and engaging in unconstitutional conduct towards children with disabilities at that time. The public schools would refuse to enroll these students at all or, even if they did, let them languish in general education classes until they dropped out.
In spite of compulsory education laws, back in the day, it was totally okay to drop out of school if you couldn’t keep up with the instruction and nobody would come after you for truancy. This was what happened to a lot of people with relatively mild challenges, like learning disabilities, who ended up reaching adulthood functionally illiterate and unable to find gainful employment except as factory workers, coal miners, and all the other dangerous jobs that don’t require academic skills, in spite of their normal intelligence.
I provided adult literacy instruction to this population at a local vocational/technical college as a young adult in Arkansas. I’ve met these people. I’ve seen this play out, first hand.
This has led to a class of individuals who have increasingly lost the ability to support themselves, as robots take over dangerous jobs that don’t require real thinking. While the laws that passed in the 1970s were the right place to start, it’s foolish to think that enough has changed since then that the system isn’t still biased against kids with special needs. If things had changed, I’d have worked myself out of a job a long time ago.
The public education system is biased against any kid who isn’t white, male, and expected to inherit property upon reaching age of majority. It was created in its present form during the Industrial Revolution and hasn’t changed much since.
For the longest time, public education agency administration was male dominated while the teaching staffs were female dominated, putting men in authoritarian control over women employees. Teachers unions grew out of the very real discrimination and abuse of women in the public education workplace by their male “superiors” around the same time that unions gained popularity among the laborers working ot inher dangerous jobs in factories and mines.
Students, however, have no collective bargaining power. Even though they are the reason the system exists, they are the last individuals served by it. They get whatever leftovers are left after public agency administrators bleed their agencies dry with undeserved six-figure annual salaries while teachers are buying classroom supplies with their own money. Students are just an excuse for politicians to pay themselves.
So, the idea that discrimination and abuse do not manifest in the public education sector is plainly inaccurate. There are mountains of evidence to the contrary, my caseload being only one such mountain. The judicial and legislative history of special education law is not the total point, here, but it’s relevant in that it establishes that bad actors in public education have made it necessary to regulate public education to control for their inappropriate behaviors.
The evidence of bad faith in public education has been documented in the courts long enough that I don’t have argue it, here. That’s a done deal. So, when someone tells me they are worried about child welfare at the hands of government officials, I have to say, “Me too! That’s why I’m a child and family advocate.”
However, now when someone tells me they are worried about pedophiles in public education, I have to do a double-take and ask, “Why?” That’s only because of the whacky Q-Anon and similar conspiracy theories, now going around about Satanic cannibals molesting and trafficking children.
It’s not that human trafficking isn’t real or horrible. It’s that there is zero proof that it’s being perpetrated by the people these conspiracy theorists are targeting.
There is proof, however, that the 45th President was pals with a known, convicted pedophile and wished this pedophile’s co-conspirator well when she, too, got arrested. He’s also been accusing of raping a 13-year-old who was made available to him by this same duo of pedophiles, but these conspiracy theorists are not going after him. They think he is the champion of their cause, which defies logic in every possible way.
Even if the allegations of child rape cannot be sustained against #45, he’s sexually assaulted plenty of women and bragged about it on the record. How he’s become the champion of a human rights cause given his history of sexual assault and his policies regarding the children of lawful asylum-seekers at our borders is beyond me.
We have all seen news stories of the occasional teacher, aide, specialist, or administrator who gets busted for sexual relations with their students. It’s not that pedophiles are not employed within public education; we know some have slipped in and we do a poor job of screening them out, often only finding them after the harm has been done.
The more important point is that a ring of cannibalistic pedophiles do not run public education. The average school district administrator doesn’t come anywhere near actual children. They don’t appear to care for the company of children; they just want to exploit them for public dollars.
While I don’t doubt that there are people employed in public education administration who would gladly traffic in humans if they thought they could turn a profit and get away with it, that’s a whole lot of work to make happen within the public education system and not get exposed. It’s easier to milk the broken system as it is without taking on that risk. They can get rich by lazier means than selling their students into slavery.
As soon as someone gets caught engaging in pedaphilia with students in the public education setting, most school districts are the ones that call the cops. If school district administrators come to an accused educator’s defense, it’s either because the educator was wrongfully accused or because the administrators don’t want to be held accountable for the fact that they let a pedophile come work for their public education agency, so they’re trying to convince everyone that they didn’t.
It’s not that public education isn’t being run by a pack of corrupt jackals. By and large, like local police departments, local school districts get away with as much as they do because they only answer to their local constituents, most of whom don’t know how to monitor and audit a school district on an ongoing basis for compliance issues. Jackals are in gross abundance.
Even the most ethical educators can be corrupted once they are promoted into administration, and I suspect most of that is economics. Once they start getting that six-figure annual salary, they start buying nice houses and cars, putting their kids through college, and going on expensive vacations. That quickly creates debt.
If you have a six-figure income, you can pay that debt, but if you lose that income and can’t replace it fast enough, you’re quickly screwed. This is how good educators get pulled into the Dark Side of the Force when they accept promotions into administration. It’s the rare pure soul that sees what’s really going on and refuses to be manipulated that way before it’s too late.
The overarching problems I see in public school administration are about money, not pedophilia or cannibalism. I’ve yet to encounter cannibalism, actually, but it’s only January 2021, so let’s see if this year tops last year for the most disgusting conduct to be revealed among public servants for the whole world to see.
What prompts me to discuss this, now, is the recent resignation of Christine Priola, an Occupational Therapist (OT) from Cleveland Metropolitan School District, one day before she participated in the January 6, 2021 insurrection against the American government. Ms. Priola occupied the Capitol building with other insurrectionists and was photographed in the Vice President’s office as part of the occupation.
In her resignation letter, Ms. Priola, who is currently out on bail pending trial, stated she was leaving her job as an OT for the District’s special education department for three specific reasons:
She refused to take the Corona virus vaccine before returning to in-person learning;
She disagreed with paying union dues because she believes that money is funding abortions; and
She’s embarking upon a fight against child trafficking by government agencies.
So, I’m going to pick these apart one by one, first, and then get into the rest of it.
First, it’s unclear if Ms. Priola is an anti-vaxer opposed to vaccines in general, is against the current Corona virus vaccine because it was rushed to market so quickly and she questions its safety and efficacy, or just resents being told she has to take a shot before she can go back to work. Maybe it’s a combination of those things.
We don’t know why she was opposed to the vaccine, so I can’t automatically lump her onto the science-denying anti-vaxer wagon with this limited amount of information, though her overall behaviors incline me to suspect that she could be an anti-vaxer. Because she’s an OT, which is a scientific discipline that functions within the medical and educational realms, I don’t want to assume too much, here. However, science is a fact-based discipline and Ms. Priola has not be operating according to facts.
When we look at her second objection, the total absence of logic casts an unfavorable light on the first objection, even further. How union dues, which pay for the administrative overhead of each union’s operations, somehow funds abortions makes no sense.
The district may withhold those dues from educators’ paychecks, but there is an audit trail that shows where that money goes. If you’re worried about where the money is going, you do a request for public records asking for the accounting details and turn them over to a grand jury if you find that the money is being misappropriated.
The rule of law already provides a remedy for the misuse of public funds. You don’t raid the Capitol with the intent of hanging the Vice President to death to resolve issues such as these.
The idea that the rule of law had collapsed to the point that it was ineffective cannot be argued, here. Ms. Priola did nothing on record to resolve the issue with where her union dues were going before resorting to the violent overthrow of the government and an effort to assassinate the Vice President.
The government already had a legal remedy that she chose not to access and the “remedy” she opted for instead did not fit the situation. This strongly suggests disordered thought. It also, however, goes to the degree to which legitimate remedies to harm done are often inaccessible to everyday Americans because they can’t afford to lawyer up every time the government shirks its responsibilities and hurts people. When the appropriate options are closed off to people, they are only left with the inappropriate ones.
This is where peaceful protests for changes to the rules become such an important part of democracy, none of which involves insurrection or execution. Insurrection as a more expedient option to litigation speaks to the degree to which the legal system is often unavailable to most people because of the associated costs, but it’s not a valid excuse for what Ms. Priola has done. Ease of access to remedy may have made it less likely that she wouldn’t have done something literally insane, but that’s speculative at this point.
The third justification for resigning given by Ms. Priola was that she’s embarking upon a fight to protect children from abuses by government employees. On it’s face, I can’t take issue with that because I’ve been fighting to protect children with disabilities – the same students Ms. Priola served as an OT – from abuses within the public education system for the last 30 years.
Very often, though, I’m protecting them against people like Ms. Priola who are so divorced from science and, therefore, reality that they engage in violations that require me to file complaints with regulators. Again, the rule of law provides a remedy. The difference between Ms. Priola’s efforts to protect children and mine is that I use science and law to protect my babies. She’s trying to kill the members of Congress most likely to help her protect children from the real predators.
I’ve never had to violently overthrow a government agency or hang anybody to protect a child from government employees. Has the rule of law let my babies down, before? Yes, in hugely significant ways. Has the rule of law protected my babies when I’ve pursued enforcement of it? Yes, more often than it has not. It’s not a perfect system, but insurrection on behalf of the people responsible for undermining it is not going to fix anything.
And, it’s not like I haven’t seen evidence of child trafficking in government agencies. I have, just not in public education. Specifically, I’ve been working on a separate justice project with our organization’s founder, Nyanza, to address the egregious over-incarceration of African-Americans in Oklahoma that dovetails with what may be State-sponsored child trafficking.
Based on the publicly available research data we’ve gathered to date, it appears there may be an orchestrated mechanism in place in which officials in the State of Oklahoma incarcerates people of color and remove their children from their homes through the Child Protective Services (CPS) system, only to place these children in privately owned foster care facilities and/or adoption agencies that operate for profit.
It appears that at least some of the foster care and adoption agencies in Oklahoma that participate in this dynamic are owned, at least in part, by State officials responsible for passing and enforcing the laws of Oklahoma, from which they profit. It should be noted that Oklahoma’s CPS system was found to have been responsible for the death, rape, and maiming of many children processed through this system via a federal class action lawsuit that resulted in a consent decree that is not being properly enforced.
CPS employees have come out as whistleblowers to advise that the “proof” of compliance with the consent decree is falsified information and Oklahoma isn’t taking this federal court consent decree as anything other than one more thing to lie about. It should also be noted that all of the individuals involved in these behaviors appear to be Republicans, or they were at the time the data we collected were gathered.
From what we’ve seen so far in our data, it appears that Oklahoma lawmakers and judges are incarcerating people so they can steal their children and sell them for profit. If true, that’s a legitimate State-sponsored human trafficking ring that needs to be shut down immediately. But, it isn’t a Satanic group of Hollywood actors and Democrats eating and raping children.
While this possible human trafficking ring has not been investigated as such to my knowledge, thus far, it’s one of those things that can’t last forever without someone getting caught. Nyanza and I are working to get enough evidence together to get the situation investigated, and she’s been filing documents this whole time, but that’s how you address these things. We are availing ourselves of the mechanisms of our imperfect, but better than anarchy, democracy to fix this heinous problem. Whatever is responsible for Oklahoma’s ridiculous incarceration and CPS numbers is a problem that needs to be fixed, regardless of what it is.
This is painful because we know of families suffering horribly because of what is currently happening until this gets resolved, but justice can take time. I’ve learned that lesson from 30 years of working cases from IEP meetings all the way up to the 9th Circuit Court of Appeals, and you don’t always win. But, you always make a difference, even when you lose on some technicality. I’ve had cases where we lost on an issue, but just barely. The involved districts knew the next time they pulled the same stunt, they wouldn’t necessarily get lucky again, and have changed their practices as a result.
What I’ve learned from relying on the rule of law to address failures of the system is that you have to look at things in the aggregate. It becomes a measure of how many things I’ve prevailed on versus how many things I have not, and I’ve prevailed on more things than I haven’t. Overall, my work is highly effective. On a day-by-day basis, it’s a mixture of resolution and being obstructed by law-breaking public servants.
You have to get to the point where you can identify when it’s time to negotiate and when it’s time to collect evidence and file a complaint of some kind. We have processes and procedures already to address all of the concerns raised by Ms. Priola’s resignation letter, none of which involve insurrection and execution of elected officials.
So, having said all that, now I have to turn to the issue of people who think like Ms. Priola who are still employed in public education. I first have to say that she may be in the minority, but we don’t know how large or small that minority is because they have not been outspoken within the public education context, thus far.
Further, because I have been dealing with disordered thought on the part of school district personnel that results in harm to children for the last 30 years, I’m willing to believe that people whose thinking is as impaired as Ms. Priola’s appears to be are still deeply rooted in special education, right now. Whether their disordered thought makes them vulnerable to Q-Anon and similar propaganda or not isn’t anything I can answer. But, Ms. Priola’s departure from science in spite of her scientific training is consistent with much of what I see in special education when things go wrong.
What this really comes down to is a concern that I’ve had for years and have spoken about with colleagues, but we haven’t really figured out the most appropriate way to address it. What is happening now and the national dialogue around it may have finally opened a door to deal with this issue, and that issue is the societal impact of having so many members of our population who are apparently incapable of logical thought when it comes to abstract concepts like justice, democracy, and fascism. And, it circles back around to the quality, or lack thereof, of our public education system.
One of the tools I regularly use, or request that it be used, in special education is a standardized assessment called the Southern California Ordinal Scales of Development (SCOSD). The history of what led to the SCOSD’s creation is a story unto itself, but suffice it to say that it is a scientific way of measuring all the different domains of development according to Piaget’s stages of development.
The SCOSD breaks development down by subtest into cognition, communication, adaptive abilities, social-affective functioning, and motor skills. It is possible for an individual to function at a higher developmental level in one area than other areas. Each person’s outcome on the measure paints a picture of their relative strengths and weaknesses across the developmental domains. When working with children and young adults with developmental disabilities, this becomes important to designing effective programs for each of them.
What I’ve come to realize from the data I’ve seen produced by the SCOSD over the years is that it is possible for someone to have age-typical cognitive and communication skills, but then have below age-typical social/emotional functioning. What this means is that their emotional development is delayed while their abilities to acquire academic and job skills are intact. They can emulate adult behavior, but their motivations are child-like because of their delayed social/emotional functioning.
When otherwise intelligent people get whipped up into an emotional frenzy over things not supported by any credible evidence, this disconnect between intelligence and social/emotional functioning is apparent. When otherwise intelligent people argue against evidence that they did something incorrectly, this same disconnect is again apparent.
This disconnect is what I’ve been fighting over the years more than anything else. Any reasonably intelligent and socially/emotionally intact person would not engage in the kinds of crap I encounter in the public education system. Most of what I encounter in the public education system is the consequence of ineptitude, not a cabal of cannibals.
If any kind of cabal exists in public education, it’s the same one currently running the American Presidency into the ground. All of this makes me think of the right-wing folks in Orange County, California, who started a non-profit membership organization, self-described as a “brotherhood,” of school district officials who would all pay membership dues and then use that money to finance legal battles against parents of children with disabilities.
It also makes me think of Lozano Smith, a law firm that infamously (within special education circles) got eviscerated by a federal court judge after trying to lie, cheat, and steal in a special education due process appeal. The firm, the responsible attorneys, and the district it was representing all got sanctioned for jerking everybody, especially the court, around with their lies.
All of the firm’s attorneys were ordered to participate in additional ethics training, in addition to the reprimand and sanctions meted out by the court. At the time, Lozano Smith had over 200 attorneys on staff statewide throughout California. Shortly thereafter, most of them jumped ship and went to different firms or started their own firms. It’s quite reminiscent of what we are seeing in Washington, DC, right now, as cabinet members and other high-ranking personnel turn their backs on the outgoing President in the wake of all the destruction and death he has caused.
Lozano Smith is still around, but I haven’t encountered them in the field in several years. The last big thing I saw from them was in 2013 when my colleague, David Grey, prevailed on a case at the 9th Circuit against two school districts engaging in the same violation of the Americans with Disabilities Act (ADA). At least one of the involved districts filed an appeal to the U.S. Supreme Court, but it was shot down; the Supreme Court declined to try the case.
When the Supreme Court appeal was first filed, Lozano Smith, which had been uninvolved at that point, wrote an amicus brief that looked like something that could have been produced by Sidney Powell and Rudy Giuliani. It made nearly hysterical arguments about how the 9th Circuit’s interpretation of the ADA would undo decades of precedent within the public education system, as though decades of an established practice of discrimination should be maintained.
The point is that the conservative “fringe” has never been the “fringe.” To quote Stephen Colbert, “Lunatic fringe? There were tens of thousands of people in that murderous mob. The day after the riot, a poll found that 45% of Republican voters backed the attack on the capitol building. That’s not a fringe! That’s almost half the outfit! If you wore a suit that was 45% fringe, you’d be arrested for public indecency! But at least we’d be able to see through your pants to know you don’t have any balls!“
Based on how scholars look at the political spectrum, conservatives have gone further and further to the right towards radicalization as the left has remained predominantly centrist. The far right looks at centrist politics and mischaracterizes them as the “radical left.” Democracy is not the radical left.
Conservatism is no longer part of democracy in this country; it’s become a movement towards dictatorship in which 45% of the population believes it needs to be led by the nose by a demagogue. When left to think for themselves, these individuals run towards authoritarianism, thinking these leaders understand their needs and will fight for them, rather than exploit them to help take over and then kick them to the curb when they no longer serve a useful purpose.
It’s my suspicion that, once the people who participated in the insurrection realize that the 45th President will let them rot in jail for taking up his cause while he claims to have nothing to do with any of them, his base will finally get the backstabbing that has been coming their way this entire time and will realize he’s not in their corner like they thought. We can at least hope getting stabbed in the back will have this effect.
We’re going to have to watch the prosecuted go through this epiphany over time as we try each of their cases one by one. The stories we’re going to hear from these people are going to reveal legitimate unmet needs, impaired problem-solving skills, and exploitation of those factors by Republican terrorists looking to radicalize them.
Those of these defendants with the mental wherewithal to realize they’ve been played and the emotional stability to own it will turn on those who exploited them, as have many former allies of #45, such as Michael Cohen. Those who don’t have the emotional stability to own the fact that they made a mistake in judgment will continue to assert they’ve done nothing wrong and describe themselves as political prisoners rather than criminal insurrectionists and traitors.
In the minds of the insurrectionists, as they’ve reported themselves, they were responding to the call of their President to defend democracy. If that’s what you’re really doing, defending democracy isn’t bad. But democracy relies on the rule of law. You defend democracy by participating in it and putting its mechanisms into constructive use, not trying to overthrow it.
If our democracy is not working for all of the people – and people of color, indigenous people, LGBTQ+ people, women of all stripes, and people challenged by disability can attest that it has not for a very long time – we need to fix it. What boggles the mind is that now that groups made up mostly of white males in this country are finally beginning to experience the lack of undemocratic entitlement and advantage they’ve historically known, their response to advocate for themselves is to engage in insurrection. This means that what they want is nothing a true democracy would ever give them, and that tells you all you really need to know about them.
There is absolutely a silver lining in all of this, and I rely on Applied Behavioral Analysis (ABA) to inform that determination. In ABA, there is a term that I’ve discussed in previous posts called “Extinction Burst,” and that’s part of what we are looking at with the current state of things. In an Extinction Burst, a behavior that had previously been reinforced is no longer being reinforced, and the organism tries to force reinforcement to come by escalating its behavior.
Think of it this way: If, every day, you put money in a vending machine and a candy bar comes out, the candy bar reinforces the behavior of putting money into the machine. But if, one day, the candy bar gets stuck and won’t come out of the machine, what do we do? Walk away sad? No! We beat on the machine in an effort to make the candy bar dislodge and come out.
That’s an Extinction Burst. If the candy bar dislodges and comes out, it reinforces the behavior of beating up the machine. If beating the machine doesn’t work, then you walk away sad. After than, you’re less likely to use the machine again. If you stop using the machine altogether, the behavior of putting money into it becomes extinct.
What is happening in this country with the radicalized right is an Extinction Burst. Behaviors engaged in by the right wing that were previously reinforced are no longer being reinforced. The behaviors of the 45th President, his co-conspirators, and his followers over the last five years, leading up to January 6, 2021, and what may still yet happen as the 46th elected President takes office, have been an extended Extinction Burst.
The most important thing about an Extinction Burst when you’re trying to extinguish an inappropriate behavior is that you cannot allow it to produce the reinforcement being sought. If you want someone to give up on the candy machine, there can be no way to beat the machine until candy comes out.
We want the radical right to give up on trying to destroy democracy, so we cannot allow their behaviors to result in the reinforcement they are seeking, which, here, is to remain in power regardless of the will of the people. This includes holding them accountable according to the letter of the law. That’s what I’ve been doing in my niche of governmental accountability for the last 30 years and it’s the only way to preserve democracy going forward.
The other silver lining, here, is that in spite of all their efforts to overthrow democracy, it’s our democracy that will ultimately prevail. When we apply the rule of law to what they have done, democracy will have the opportunity to defend itself.
What saddens and scares me the most is the number of people whose developmental weaknesses and mental health conditions are being exploited by the right wing to radicalize them into becoming domestic terrorists while convincing them they are upholding American principles through their terrorism. When we talk about the mental health problems in this country, we tend to point to homelessness and addiction issues, like this is the only way they can hurt us.
As an advocate for people with disabilities, I am torn between being sad for and fearful of these individuals. On the one hand, we absolutely need to hold them accountable under the law. But, we prove the point that the system is skewed towards specific demographics when mentally ill right wing radicals suddenly get criminal consequences and nothing to address the real-world problems that they couldn’t solve that propelled them into radicalism.
In the end, once again, it’s people with disabilities being used as political pawns by self-serving, undeserving, overpaid public officials looking to line their own pockets with taxpayer dollars as part of a grift. This is something I know all too well in special education.
I’m willing to believe, in light of the evidence thus far, that decades of special education failures have produced an entire class of emotionally disturbed adults who are still vulnerable to the manipulations of public officials and that Ms. Priola and many of her compatriots are among them. I’m also willing to believe, in light of the evidence thus far, that the people manipulating them are just as mentally ill; they just have money and power.
I will never pretend to have all the answers, here, but I do know a thing or two that can help. All of us do. We need to weave our efforts together to repair the fabric of our country and make it stronger than it was in the first place. It’s not impossible. This country’s founding was far more difficult than its current preservation and we can do this.
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.
One of the many populations of individuals directly negatively impacted by the current quarantine is the special education population. Among those students are those whose impairments are significant enough that any significant disruption in their school routines will cause them to regress, which is to lose learning they had previously acquired.
Regression happens for students such as these during lengthy breaks, like summer, which is why we give them Extended School Year (ESY). By extending the school year through periods of normal breaks, we prevent them from losing ground. When kids regress from disrupted instruction, once the instruction resumes, that time has to be spent on recoupment, which means re-teaching what was forgotten. That means time spent re-teaching previously known information instead of adding onto it with new information. For kids already behind in the first place, this puts them even further behind.
Compensatory education can be used to make up for regression and can take different forms. Sometimes its intensive services over a summer break so the student is where they should have been by the time school starts back in the fall. Other times, it’s supplemental services being provided outside of the regular school day in addition to the instruction being provided during school, though that can be pretty tough on a lot of kids. Sometimes, it takes putting the student into a more restrictive, but more intensive instructional placement for a period of time so they can catch up in their learning before being returned to the public school setting with services in place that will prevent them from regressing again.
Compensatory services can be provided in other contexts, as well, regardless of whether regression has occurred or not. When families find it necessary to take their Local Education Agencies (LEAs) to due process to achieve remedies for the deprivation of educational benefits, compensatory education is the likely remedy, though the form it takes varies from case to case.
From a procedural standpoint, if an IEP calls for a specified number of service minutes for a particular intervention and not all of those services minutes are provided as they should be, a minute-for-minute compensatory remedy is due simply as a matter of procedure. The regulatory procedures require that IEPs be implemented as written and, if they aren’t, whatever services that weren’t provided according to their mandatory statements of frequency and duration remain due to the student.
An Individualized Education Program (IEP) is a legally binding contract that obligates LEAs to deliver on it as written, so if they don’t, they have to make up the services minutes to which they committed themselves as described by the affected student’s IEP. When compensatory minutes are ordered following a state-level compliance complaint or due process case on the basis of procedural violations, the compensatory services are minute-for-minute as described by the IEP because the number of service minutes the student should have received are documented in the IEP, which the LEA is legally obligated to implement as written as a matter of procedure.
However, compensatory education can also be ordered by a judge in due process on the basis of substantively inadequate IEPs. In such instances, a student’s IEP does not contain services that it should, so they can’t be enforced as a matter of procedure. When necessary services are left out of an IEP such that the student suffers a deprivation of educational benefit, or when services in the IEP are not delivered as the result of a procedural violation and the student then regresses, now you’re talking about substantive harm.
Failing to follow the rules and owing something previously promised is one thing, but causing further loss of learning by failing to implement the IEP as written such that regression occurs is a much bigger issue. Failing to teach necessary instruction because it was left out of the IEP is just as big of an issue, if not bigger.
When special education students are deprived of educational benefits by their LEAs, how much of what kind of services they get to make up for those deprivations has to be figured out on a case-by-case basis. Judges rely on expert testimony and evidence, usually assessment reports, to figure things out when these cases go to hearing. How well a student’s attorney argues the case has a lot to do with how much compensatory education that student will get for any sustained allegations of substantive harm.
Those are the basics of how and when compensatory education can be ordered. Compensatory education can also be negotiated as conditions of settlement to prevent any kind of regulatory and/or judicial intervention. I’ve even had situations in which procedurally owed compensatory service minutes are written into IEPs at IEP meetings without lawyers and lawsuits even coming up in the conversation. This latter action has usually occurred when there was a temporary lack of a qualified provider and the service minutes had to be made up once the position was filled.
All of this is based on how things were before the quarantine and, at least for right now, no waivers of the Individuals with Disabilities Education Act (IDEA) have been authorized by Congress. Parents and educators are still waiting to find out if any waivers will be passed in the near future (sign our petition to ask Congress to not authorize waivers), but for now, the law still stands as it always has.
Any child whose IEP is not currently being implemented as written, right now, is going to be owed compensatory minutes purely on the basis of procedure. If a kid’s IEP calls for 30 minutes per week of speech/language services and that kid has been in quarantine for six weeks without those services, that kid is now due 180 minutes of back-due speech/language minutes, and that number will continue to grow for so long as that kid continues to go without those speech/language services.
Dealing with procedurally required compensatory services along these lines is going to be burdensome enough on LEAs after people adjust to quarantine and new ways of doing things are put into place, as well as once the quarantine is over. Both state and federal education agency officials have already started talking about how they’re going to tackle that.
Dealing with kids who are due compensatory remedy because they were deprived of educational benefits during quarantine because necessary services weren’t in their IEPs in the first place and/or they regressed in the absence of services that were written into their IEPs but not provided, is going to be a whole other thing that is likely to burden our due process mechanisms and take money out of the classroom, virtual or otherwise, to pay lawyers. The substantive compensatory education claims are going to be significant and the reality is that an ounce of prevention is worth a pound of cure.
Compensatory remedies are never as effective as the instruction students receive as a matter of a Free and Appropriate Public Education (FAPE). For one thing, IEPs are based on present levels of performance when they are written. Those present levels establish where the student was performing at the time the IEP was written and the IEP goals target learning outcomes for a year down the road, relative to the baselines established by the present levels.
When kids regress from lack of instruction, their present levels of performance move backwards, not forwards. When kids fail to learn for lack of appropriate IEP goals and, thus, a lack of appropriate IEP services, further deficits are induced on top of the deficits that were already there as a result of their disability. When these same kids sit at home not getting appropriate special education, they fall further behind and no amount of compensatory services will ever restore them to where they should have been had their services been appropriately provided in the first place.
Many special education students were facing IEP implementation failures and/or poorly constructed IEPs before the quarantine. Now, many more are joining them in the “Deprivation of Educational Benefits Club,” as they sit at home without adequate services to see their IEP goals met and/or without adequate IEP goals to drive the provision of necessary services. Further, because their learning environments have dramatically changed, many of these children now have new needs specific to learning at home that are not addressed by their IEPs.
Behaviors in response to parents’ attempts at instruction top the list. Parents without any kind of training in delivering specialized instruction are attempting to nonetheless do so without the support of behaviorists that would otherwise be provided to credentialed special education teachers. Most parents give up in exasperation because they have to decide between the lesser of two evils: behavioral regression or academic regression.
Recoupment of academics is usually a lot easier to achieve than remediating a big behavior problem. Remediating a behavior problem requires the student to unlearn maladaptive strategies and replace them with adaptive ones that have to be taught.
Remedial academics just involves new learning; kids generally don’t have to unlearn something inaccurate, first. At worst, they’ll have to be retaught something they learned previously but forgot, before they can pick up with new stuff, again.
Parents who have the means, right now, are working their health insurance to get online speech/language services, consultations with specialists like Occupational Therapists (OTs), and online social skills groups. They are paying out of pocket for online tutors and classes to give their kids some kind of academic routine. Many of those out-of-pocket costs are going to be recoverable as a matter of compensatory education.
There are two ways that compensatory education gets funded:
If it is agreed-to or ordered first, it is provided thereafter at the expense of the LEA. Either the LEA pays for it directly or the parents pay for it and the LEA reimburses them, as agreed to by the parties or as ordered by the judge in due process.
If it is not agreed-to or ordered first, parents pay out of pocket for the services, then request reimbursement after the fact. If that’s the case, either their LEA will agree to reimburse them, usually via a confidential settlement agreement, or the parents will have to file for due process and prove to a judge that they had to pay out-of-pocket for the services because the LEA failed to provide them, they were educationally necessary, and their child would have likely regressed or otherwise been denied a FAPE without them.
That’s something that some families should seriously think about, right now. Not everyone is out of work. Not everyone is without resources. If savings or lines of credit can be used to provide services in the home, now, while waiting for the local LEA to get its act together, parents can sit on their reimbursement claims until the dust settles. Due process claims come with a two-year statute of limitations. A denial of a FAPE that began on March 1, 2020 will remain viable until February 28, 2022, for example.
Families that have the means to privately fund what their children with special education needs are not currently getting should do so just because it needs to be done, regardless of whether they can recover those monies from their local LEAs or not. But, because the taxpaying public has already paid the LEAs to render a FAPE but they aren’t, parents should still keep their receipts in case they are able to recover their out-of-pocket later. The focus should be on keeping your kids moving forward in their learning and preventing regression. You can worry about the money later, given that you’ve got two years to act on your reimbursement claims.
However, for families that do not have the means to pay out-of-pocket for now, there is a tremendous need for immediate intervention. As LEAs scramble to come up with solutions, one that seems obvious to me but which might not occur to others is to open up the provision of related services by private providers that are not currently licensed as Non-Public Agencies (NPAs).
There are more qualified providers that are not licensed as NPAs than there are providers that are licensed as such. The barriers to entry into the NPA arena are ridiculous and multitudinous, plus they get paid at Medicaid rates, which is usually less than what it costs to deliver the services, so providers can’t keep their doors open by operating as NPAs.
Most NPAs are also set up to do business with other agencies and private insurance, which offsets the shortfall created by their NPA business. In many states, becoming an NPA is more of a marketing expense to get the agency’s name out there in front of people, build up a trusted reputation as a provider, and then dump the NPA status to carry on with private insurance and other agency contracts in exchange for payments that actually keep their doors open.
While NPA licensing requirements may have been created to keep the sketchy people out, they actually achieve keeping most of the really good people out, too. Now is the time to reform that process so that we have more providers that can reach into the homes via whatever safe means possible of the special education students who are currently being denied a FAPE and regressing at this very moment.
In-person services can be provided with adequate Personal Protective Equipment (PPE) and safety protocols. Not every special education student is able access instruction online. Those who can, should, but that still takes a lot of skill and expertise to facilitate. When you’ve got a kid at home with a parent refusing to participate and no in-home behavioral services to facilitate their participation, the parent sits there helpless as the parent/child relationship suffers and no learning occurs.
By relaxing the NPA licensing rules and letting non-NPA providers that are otherwise qualified with the proper professional certifications, such as Speech-Language Pathologists (SLPs) and OTs who are medically certified, a great many students can still receive services at home who otherwise wouldn’t due to LEA staffing limitations.
The goals that were determined to be educationally necessary by each child’s respective IEP team are still educationally necessary. The services determined necessary to see those goals met in a year’s time are still necessary.
The only thing that has changed is placement, and now IEP teams need to figure out how to deliver services in the current placement such that the goals are still met. This is the same line of inquiry every IEP team has to pursue when normally making placement decisions. Placement is driven by what learning environment is the Least Restrictive Environment (LRE) in which the services can be delivered such that the goals are met. That’s best practices according to educational science, plus it’s the law.
Now that placement changes have been forced on everyone because of quarantine, it’s time to back up the conversation to that point, again, where services necessary to see the goals met in the current placement have to be identified. That said, new goals may actually be needed to address how the student functions in the home learning environment. New evaluations may be needed to inform what those goals should look like.
One thing is certainly clear from all of this: the next time the IDEA gets reauthorized, it will need to include language that describes how it will be implemented during a national crisis. The absence of any such language automatically puts LEAs out of compliance when disaster hits, which benefits no one; leaves students stranded without a contingency plan, deprived of a FAPE and actively regressing with each passing day; and creates compensatory education claims that will become a greater burden on the public education system than serving these students appropriately during a crisis in the first place.
As much as special education in general is all up in the air in most quarantined school districts, with unlawful conduct being perpetrated by school officials who have never believed in the IDEA seeing this as an opportunity to get rid of its obligations while still collecting federal special education dollars, there is a subpopulation within special education that is even more affected by this than others. That subpopulation is made up of the students whose educational and civil rights were already being violated by their local education agencies (LEAs) prior to the quarantine.
There is huge debate going on right now about Betsy DeVos, the Trump Administration’s appointed Secretary of Education, and the waiver power she does and does not have under the law to exempt school districts from delivering a Free and Appropriate Public Education (FAPE) to students with disabilities. Congress has now asked her to testify as to what parts of the IDEA she thinks needs to be waived and we don’t know how it will vote on the matter.
More and more comes out on this topic each day. The Council of Parent Advocates and Attorneys (COPAA), the national nonprofit professional organization that advocates and, where necessary, litigates on a national level on topics like these has published its own policy statement about the current situation, which can be found on the COPAA website.
Currently, there are no waivers of the IDEA in place. The only exemption right now is that LEAs that are not providing distance learning options to their general education students don’t have to provide education to their special education students, either. Until there are actual Congressionally approved waivers, nothing has changed with respect to implementing the IDEA for those special education students served by LEAs that are currently providing distance learning to their general education students.
Nonetheless, I have four families with students in one particular school district that is currently providing distance learning to its general education students and something half-baked in terms of online options for its special education students. All four of these families received generic Prior Written Notices (PWNs) over this last weekend advising that it’s impossible to implement IEPs under the current circumstances, even though it very often is possible and the administrator sending these things out has a decades-long history of throwing money at lawyers to defend her decisions instead of actual services for students. Three of those families already have due process cases filed or about to be filed.
Just like everything in special education, PWNs are supposed to be individualized to each student, but she sent the same PWN to the families of everybody in her district in special education, telling them all that implementing their IEPs under the circumstances is impossible with no examination of each student’s unique, individual situations. She may have finally dug herself into a hole that she can’t get back out of.
This administrator made unilateral decisions on behalf of her district outside of the IEP process during a time when the IDEA has not been waived in any kind of way, in part or in whole. It’s a systemic violation of the law memorialized in writing on district letterhead to the family of every special education student in her district. She may have well just created a class action lawsuit against her employer.
Children with disabilities from low-income, single parent, immigrant, and non-white households were already getting the short end of the stick when it comes to special education. Being white and affluent doesn’t necessarily protect you, but it does increase your odds of avoiding at least some FAPE violations.
That said, the aforementioned administrator sending out PWNs that break the law on her employer’s behalf worked most of her career for an affluent school district where the only way to get a decent IEP was to sue the crap out of her district. Her department would play to the egos of affluent parents and tell them special education was a welfare service and they would be better off privately paying for services, thereby collecting federal IDEA dollars without actually having to spend them on services.
Now she’s working for a district in an economically depressed community with a largely Latino population and is preying on low-income, non-English speaking, families of color. Maybe she thinks they aren’t going to stand up to her taking advantage of the pandemic to bring in IDEA dollars without having to deliver on IDEA obligations. She’s wrong.
I already had cases that were pending due process on my caseload when this pandemic hit. The students involved in those cases were already being under-served, if served at all, and now they’re sitting at home with even more nothing. One student’s parent has an elderly parent in a nursing home she can’t visit and is working from home (or at least trying to) while her adult autistic child who is still eligible for special education has one meltdown after another because of the sudden disruption in routine and her inability to go out and do anything (trips into the community were being used as reinforcers as part of her behavior program, as well as community-based instructional opportunities, before all of this hit).
This parent is understandably furious. All that she’s gotten so far from her daughter’s teachers is a useless Google classroom link that takes her to a page full of nothing to do with her daughter’s IEP goals. And, while her daughter’s IEP makes clear that she requires “highly trained staff” to meet her goals, all she’s got right now is her frustrated mom and useless downloaded worksheets that her mother doesn’t know how to teach to her and she doesn’t know how to complete. There is no support from the teaching staffs to help this parent engage her daughter in the distance learning option, such as it is, that they’ve been given.
This student is from the same district mentioned above that is sending unlawful F-You letters on PWN forms to its special education families. I have three other students in this district, two of them already with litigation pending for violations that occurred before the quarantine. They were already being denied a FAPE before quarantine, and they sure as hell aren’t getting a FAPE now.
I’ve already written about the impact of the quarantine on special education before to some extent, but I want to hammer a particular point once again: Many special education students are at risk of significant regression, which is the loss of previously learned knowledge and skills, during lengthy breaks from instruction. These students are eligible for Extended School Year (ESY) services for this very reason; summer breaks, and sometimes winter breaks, are just too long for them to go without services or they have to make up for lost ground once they return to school, which makes them unavailable for learning anything new.
The impact of the current situation on these students in particular stands to compound an already egregious denial of FAPE. If they were already being denied a FAPE before this all happened, additional regression on top of that will create deficits that will never be overcome.
As of right now, no IDEA waivers have been permitted. Congress is waiting for Mrs. DeVos to tell it what waivers she wants to push through in response to the pandemic and mass quarantines. There is significant fear that the waivers Mrs. DeVos will request will include exemptions from implementing all or part of the IDEA.
The consequences to students if Mrs. DeVos is successful in getting IDEA waivers are obvious. What is not quite so obvious is what becomes of federal special education dollars to school districts if she manages to get any or all of the IDEA waived. While some school districts may be ready to embrace reduced duty and accountability, do they realize that IDEA dollars are tied to complying with the law? Does Mrs. DeVos intend to use IDEA waivers to not only reduce accountability for the public schools, but to also reduce their special education funding? How many school districts are willing to walk away from special education dollars in order to get out of having to implement IEPs?
Parents of children with disabilities, their extended families, their friends, and any taxpayers who otherwise get it need to act on this right now. You need to reach out to your representatives in Congress to tell them that any IDEA waivers are unacceptable. There is a way to deliver a FAPE to most special education students right now; it just takes cleverness and ingenuity, things most government agencies are not particularly known for. Clever problem-solving is generally unaccepted in institutions built on political corruption.
So, here’s your call to action: Contact your Congressional representatives and tell them that no IDEA waivers are acceptable or necessary. Look up your Senators here, and your Representatives here. You can also use our easy-to-use form letter generator or sign our online petition. If you are listening to this as a podcast rather than reading it as a blog, you can find the links in the text-only portion of this post.
It shouldn’t be necessary to have to fight to keep civil and educational rights in place for our nation’s children, but it is. Many LEAs are pushing compulsory education laws by threatening families with truancy proceedings if they don’t participate in distance learning options, but then are looking for any and all excuses to not actually deliver a real education, particularly to their special education students.
These distance learning options are all about keeping those Average Daily Attendance dollars coming in, I assure you. LEAs can’t live without that money and its based on attendance, which is why they are threatening to criminally prosecute parents who don’t implement their half-assed distance learning options for truancy. But, to actually deliver a real education in exchange for those dollars seems too much to ask, and it’s a thousand times worse for students with special needs.
It may quickly become the case that the only way for families of special education students to protect themselves against unjustified truancy charges, which are tried by local superior court judges who know nothing about how special education is actually supposed to be delivered, is to file for due process and make the record that the education being offered to those special education students during quarantine is inappropriate to their needs and they are unable to access learning as a result.
Parents should not feel forced to make their kids do something that will not help or just make things worse out of fear of being criminally prosecuted for truancy if they don’t. The sad reality, however, is that so long as they log or call in every day to whatever distance learning platform has been made available to them, even if their kids aren’t learning anything, they will not be prosecuted for truancy because those logs will be used as proof of attendance so schools can get their Average Daily Attendance dollars. That still does nothing to ensure their receipt of a FAPE, though.
Now is the time to reach out to advocates and attorneys if your child with special education needs isn’t getting appropriate instruction and related services while sheltering in place. You can find people to help you by searching online for “special education advocates near me” and “special education attorneys near me.”
Just be careful of the con artists out there, though. There are lawyers who will claim to represent families but then cut backroom deals with the attorneys representing the LEAs in which they convince the family to sign settlement agreements that short-changes their kids and eliminates their claims against the LEAs. There are also lay advocates who mean well, but don’t know the applicable science or law.
You should be leery of lawyers who have been in practice for years but have no litigation history. If they could actually litigate, they’d do it. But, if they can’t, they’ll get a few thousands dollars in fees for selling out their clients via backroom deals cut with school district lawyers and administrators. There are sleazy people on both sides, so parents do have to be choosy about who represents them.
Your state should have some kind of online database of due process decisions that you can search by an attorney’s name. If no due process decisions come up with that attorney’s name, and they’ve been in practice for years, that’s a red flag. If you search the decisions by attorney name and the results produce only cases that the attorney has lost, that’s another kind of red flag.
The good lawyers’ caseloads already get impacted by this time of the school year, but this situation just takes it to a whole different level, so parents should find someone fast if they think they even might need the help. One source that helps parents find advocates and attorneys is COPAA. It has guidelines to parents for choosing a special education attorney and/or advocate, as well as a searchable directory of COPAA members by location.
You will note that I am not listed. I am not a COPAA member and with good reason. As much as I appreciate what COPAA does on a national level, particularly with respect to its amicus briefs, it has no membership options for paralegals. This isn’t about bashing COPAA because there are things about it that I genuinely love, but there’s also things about it that I find wholly unacceptable.
I’m speaking to my truth, not disparaging an organization that I am, here, deliberately telling parents they should check out as a valuable resource. My issues with COPAA are mine, but I’m sharing them here for the benefit of those who search the database I’ve referred them to, don’t find me on it, and wonder why.
If I go to the COPAA conferences, I can only attend the workshops for parents and other advocates, where I spend the whole time either biting my tongue or correcting the presenters because they’re disseminating misinformation, and I never learn anything I didn’t already know. I’m not allowed to attend any of the attorney sessions, even though I totally could use the MCLEs for my paralegal status.
I can’t even subscribe to the COPAA listserv for attorneys, even when it contains information that would benefit my supervising attorneys for me to have access to it. My supervising attorneys are not even allowed to share it with me, even if it pertains to a task they are delegating to me. Until COPAA makes a space for me and people who work in the profession as I do, I can’t justify the expense of a COPAA membership or its conferences.
Besides, when I’ve gone to the conferences, I’ve walked through the tables and booths between sessions and, every year, there sits a table set up by a non-public school that broke one of my student’s arms during an unlawful restraint several years ago. When this issue was raised with COPAA the first time I saw this bunch at a conference, they ignored my supervising attorney on that case and continued to take money from these child abusers for the table space each year after that. I’m not okay with that.
Given the poor instruction options available to me at the COPAA conferences, the presence of known child abusers at the conferences, and the overwhelming evidence I’ve observed that far too many people only attend it so they can drink to excess and cheat on their spouses for a week, I don’t find the COPAA conferences worth the thousands of dollars in fees, hotel and travel costs, and lost billable time to be worth it. Plus, they hold it in the middle of the busiest time of the school year, which makes no sense at all. I’ve always got way too much work happening when the conferences are held to attend, anyway.
So, while I don’t have a high opinion of the COPAA conferences, I have a very high opinion of the brilliant legal minds that write COPAA’s amicus briefs and I’ve agreed with every one of them I’ve ever read 100%. Nothing is perfect and COPAA is a good resource for many. The actual work COPAA does, aside from its annual conferences, is stellar and I can look past the conferences for the sake of the bigger picture, which is legally protecting children with disabilities from educational and civil rights violations.
COPAA has taken on the U.S. Department of Education with bold, accurate words in legal proceedings that make my heart want to burst with pride in our profession. That’s what matters to me about what COPAA does. That is, in my opinion, the most important thing COPAA does.
If you are looking for an attorney or advocate, the COPAA membership directory can be a good resource for many parents. Just know that there are a lot of other professionals out there who are really good at their jobs who are not members, there are members who aren’t that good at their jobs, and there a non-members who haven’t signed up because they’re crooked and don’t want to get caught by those of us who are doing this work for the right reasons. Like everything else in life, it’s a mixed bag.
Being on the COPAA membership directory doesn’t automatically mean someone is good and not being on it doesn’t mean someone is bad. It’s just a list of people who work in this field and pay membership fees to COPAA, but it’s the only national directory of advocates and attorneys that I know of and it’s foolish to not regard it as a valuable resource. Just take it for what it is and don’t think that hiring a COPAA member automatically means you don’t have to put much thought into it.
As I stated before, the membership directory page includes links to COPAA’s guidelines for finding a qualified attorney or advocate, which is pretty sound advice. Regardless of whether an advocate or attorney is a COPAA member or not, COPAA’s guidance as to how to vet attorneys and advocates is still good.
If you are the parent of a child with special needs who is not receiving a FAPE while in quarantine and your LEA is providing alternative learning options to its general education students, as of the time of this writing, there are no waivers of any part of the IDEA and it is still fully in force. This isn’t about kicking your LEA while it’s down; this is about protecting your child from being kicked by his/her LEA while your child is down. LEAs have millions apiece of taxpayer dollars intended to pay for the education of our children and that damn sure better be what it’s spent on, regardless of the situation.
Students who were already being denied a FAPE before the pandemic are now further compromised. How this is going to play out in litigation remains to be seen. If the rule of law is followed, there are no exceptions to providing a FAPE right now. Any FAPE violations that were already going on before quarantine have not been made better by it and families in those situations very likely need to consult with a qualified special education attorney sooner rather than later, if they haven’t already.
This is a difficult time for everyone, but the true measure of a society’s health is how well it takes care of its most vulnerable members during times of crisis. While some fascist LEA administrators may see this as an opportunity to finally carry out their bigoted agendas and terminate special education like they’ve been wanting to since 1975, those of us who still prefer democracy to fascism have to stand up and enforce the laws that have been part of the fabric of our country for the last 45 years.
As soon as one civil rights law falls, all the rest of them fall, the tenuous thread that our democracy is holding onto right now will snap, and we will find ourselves suddenly living in a real oligarchic regime. The moment it becomes okay to violate the civil and educational rights of children with disabilities, it will become okay to violate everyone else’s rights, too. Every protected class – women, minorities, LGBTQ+ individuals, low-income families, single-parent households, etc. – will lose rights one by one thereafter until no one has freedom anymore, except the wealthy oligarchs.
While I am focused on the individual needs of the children and families involved, I can’t help but appreciate the over-arching ramifications for democracy at large. We protect everyone’s rights, or we protect no one’s. True democracy means everyone is equal, including special education students.
And, regardless of whether IDEA waivers get approved, no one is contemplating waivers of Section 504 of the Rehabilitation Act or the Americans with Disabilities Act (ADA). If the IDEA is no longer enforceable, those laws still are and Betsy DeVos has no control over them. So, if she manages to get IDEA waivers passed by Congress, families will still have recourse under 504 and the ADA, which can have harsher ramifications than the IDEA on LEAs.
The IDEA diminishes “equal access to education” but expects no expense to be spared in the pursuit of that watered down version of equal access; the ADA says “equal access” must be 100% equal, unless it creates an undue burden on the responsible party, which it has to prove. We’ve not had civil rights litigation under 504 or the ADA since either of them passed that sets a precedent for what we’re dealing with right now, but I can promise you that what special education students are getting at home during quarantine doesn’t come close to equal access to education as that being given to their non-disabled peers.
These are uncharted waters and only time will tell how this is going to play out, but it’s up to those of us who do this work and the families we serve to do everything we can to protect our children with special needs. Please contact your Senators and Representatives, tell them that no IDEA waivers should be granted, and let’s all keep the pressure on until we have an answer. In the meantime, nothing has changed and the law is still enforceable, so we need to enforce it.
While many courts have moved to a work-from-home model (I recently watched a federal court trial in which Google was accused of aiding and abetting the Taliban that allowed me to see into the homes of three federal court judges and the Plaintiffs’ attorney), some state special education hearing offices have closed down, ceased operations except to issue continuances and stays, and are accruing a backlog during quarantine that is going to explode with new cases from all the FAPE claims arising from school district misconduct currently going on. Parents may need to use this time to find an attorney, start organizing their evidence, and file to preserve their timelines, even if they aren’t going to get in front of a judge right away.
For families that were already facing due process before the quarantine, if their states are operating their complaints and due process hearings according to a work-from-home model, which Texas is doing, then there should be some kind of mitigation in place to prevent that huge of a backlog. If three federal court judges on a panel can hold a trial to determine if Google was complicit in the Taliban’s use of its technologies to engage in acts of terrorism from their homes, special education due process cases can be tried the same way.
If you have a due process case that was pending before the quarantine, then you’ve likely already been communicating with your attorney about what is going on. If you haven’t, yet, do it now. You need your attorney looking into what due process mechanisms remain intact in your state and what the procedures currently are. Any competent attorney will have already done this, but may be so overwhelmed by the sudden explosion of casework that is starting to happen that they haven’t had a chance to talk with you about it, yet. Don’t overwhelm them by stalker dialing ever 5 minutes, but do reach out and make an appointment to discuss how all of this impacts your case.
There is never a good time to participate in litigation. For most parents, “litigation” and “good time” generally don’t go together. But, this is definitely a worse time to be pursuing due process in a system that was already glutted with cases. The sooner you act, the better.
