Tag: legal

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Legitimate Parent Advocacy vs. Conspiratorial Movements

Photo Credit: Nik

As much as the work we do at KPS4Parents focuses on social justice issues that include parents’ legal rights in the special education process and related areas of public agency regulation, I’ve been hesitant until now to say anything about what has been charading as a parents’ advocacy movement, lately. This is mainly because of the most recent developments involving the leadership of one such faux parent advocacy organization, Moms for Liberty, which pretty much speak for themselves and eliminate the need for me to work that hard at supporting my arguments with evidence.

I’m busy. I don’t have time for deep dives into the world of politics when I’m already doing deep dives into the peer-reviewed research and case law during the regular school year. I see every bit of stupidity and ineptitude in local government as we see in Congress on the daily. Idiot politicians are the reason why lay advocates and civil rights attorneys are needed in a democracy. Mark Twain is quoted as saying, “In the first place, God made idiots. That was for practice. Then He made school boards.” It’s not like any of this is new.

I’ve got over 20 students on my lay advocacy caseload, at least two of those cases are going to due process, several of those cases have outstanding remedies due to them from a federal investigation of their local school district that have not yet been negotiated, and others are requiring me to work with families at the local agency level to hopefully resolve their concerns, all the while also making the record just in case formal complaints or litigation become unavoidable. I’m not going to stop all of that to write a blog post/podcast episode unless the moment is right, and it’s now right.

I’m won’t rehash the Moms for Liberty scandal, here. You can read up on that on your own time, if you don’t already know about it. What I’m focusing on here are the social and psychological sciences as they interact with the rule of law in our democratic republic, and what that means for this country to have a government that is “of the people, for the people, and by the people” with respect to legitimate parent advocacy.

We’re meant to have a representative government and it isn’t representative of most of “the people” when a tiny minority of whack-job conspiracy theorists and con artists with prefrontal cortices made of cottage cheese or something close to it, are put into positions of authority, or otherwise have influence over those with authority, and have access to taxpayer resources with no effective systems of oversight or accountability. Once in power, people like these then attempt to bend reality to fit their whacko notions of how things should be, regardless of what the majority of their constituents want or need or the actual facts of the situation, usually for their own financial gain and without regard for any harm done to others. Berkeley Breathed referred to such an individual as a “tax-fattened hyena,” in one of his old Bloom County cartoons. I find the term eternally apt.

I find that these are “the people” employed within the public sector who are the most opposed to any kind of data collection that could be used as an audit trail and enforcement tool, which is why the backend business automation of most publicly funded agencies at the local level is such garbage. It’s really hard to misappropriate public funds when you’re leaving digital footprints right back to yourself in the process. Effective office automation on par with what has been happening in the private sector for decades has been limited in the public sector for supposed budgetary reasons, but the reality is that the ROI on a good system would make the upgrade pay for itself in no time. It’s not costs that are being avoided, it’s audit trails.

Because “the people” are expected to hold their government accountable according to the rule of law, it is necessary for “the people” to know how to do so and be given access to public agency information through various client’s rights, freedom of information, and public records laws. Because of our laws regarding public access to public agency information and the mechanisms of accountability that are built into the regulations that describe how our public agencies are supposed to operate, our democracy equips us with powerful tools that allow us to advocate for appropriate outcomes as regular members of society, including as parents for our children in programs for which we pay taxes to serve their needs as a matter of law.

Keeping parents in the dark about their rights and the proper paths for recourse and distracting them with pointless displays of anger and hostility are all parts of a strategy to undermine legitimate parent advocacy, not support it. It drains parents’ energy, time, and resources to pursue legitimate remedies by wasting it all on displays of emotion that rarely change policies and create more problems than they solve. The actual processes and procedures afforded to parents as per their lawful parent rights in the public education setting are the only mechanisms of democracy that are designed to address meritorious parental concerns.

No matter how many fits at a school board meeting a parent may throw, until they file a formal complaint of some kind, there’s not much anyone can do. When parents bring their legitimate concerns to a school board meeting, the proper response is for someone from the school board to help the parent exercise their rights, including helping them file a formal complaint. When parents attempt to argue for things outside the scope of what their public schools can legally do, the schools are obligated to explain how the rules actually apply and what can legitimately be done to address such parental concerns.

In the case of special education, this is specifically regulated at 34 CFR Sec. 300.503, which mandates the provision of Prior Written Notice (PWN) to parents whenever a change to a child’s special education program is proposed or denied by the public education agency. If the public education agency’s explanation doesn’t make sense for why it is proposing changes or refusing changes requested by parents, parents have a right to use whatever cockamamie excuse they’ve been given in their PWNs as evidence against their public education agencies in regulatory complaints or legal proceedings. Our democracy protects parents with rules like these, but knowing how to use them and enforce them isn’t something most parents know how to do.

One of the methods of depriving people of their rights is to deprive them of any knowledge of past successful efforts to secure the rights of citizens, such as with the litigation and legislative history of special education law, and the processes and procedures by which everyday people can now assert their rights under the law because of how past cases were successfully argued and won and how legislators have responded to the relevant scientific and legal developments over time. This is why these organizations are so strongly opposed to any curriculum that accurately describe the effects of slavery on American society and governance, and don’t want to acknowledge the growing body of science that better explains gender and sexual orientation than what the science of the past was able to tell us because it challenges behaviors that have been learned and practiced over generations according to religious and political beliefs that don’t always abide by observable reality.

For example, during the 1600s, the astronomer Galileo died under house arrest for heresy after daring to assert that the Earth rotates around the sun based on his observations using telescopes and calculating the movements of the stars and planets, because this contradicted the Church’s position at that time that the Earth was the center of the Universe and everything in the skies rotated around the Earth. Galileo was right, of course. He witnessed the actuality of God’s miracle, but rather than revel in its realization, the Church rejected it because it contradicted a long-standing myth that was being knowingly perpetuated by the Church so that it was not contradicted in the eyes of the people, lest it lose their trust and obedience. The Church did not acknowledge that Galileo was right and absolve him of heresy until more than 300 years later during the 20th century.

A fact-based discovery that contradicted the Church in such a significant way would have cost the Church a great deal of credibility among its believers if acknowledged as true, or at least that’s what the Church apparently feared, so it tried Galileo for heresy and gave him the choice of being found guilty and thrown in prison for the rest of his life or accepting a plea deal and spending the rest of his life under house arrest. He took the plea deal.

Whether you’re religious or not, the Universe functions according to set rules that can be measured, analyzed, and understood with enough time and resources. There may be a difference of opinion as to why that is and who or what caused it to happen, but what has actually happened with respect to Creation is an observable fact that simply has to be studied in order for the design’s function and purpose to be understood.

For example, humankind just spent seven years flying a space craft to an asteroid that is due to smack into the Earth in about 150 years so that we can start figuring out now a way to prevent it from hitting us by the time it gets here. We just flew this thing over millions of miles of space, right up to this asteroid, punched the asteroid using a mechanical arm, captured chunks of debris and dust that flew up off the surface of the asteroid from getting punched, then flew the debris and dust all the way back to Earth so we can analyze it and figure out what the asteroid is made of, which will help us figure out how to prevent it from hitting us. You cannot tell me that our species is capable of doing that and yet we can’t apply science to improve the quality of life for every human on our planet without destroying the world around us.

I help everyday families of learners with disabilities acquire the necessary knowledge about the processes and procedures that apply to their disability-related needs and rights so they can successfully advocate for their loved ones according to the applicable science and the rule of law. I understand the regulated processes and procedures that give my clients access to what the law promises them. I use the applicable sciences to identify each learner’s unique needs so as to inform the requests I make of publicly funded agencies and programs on their behalf. I understand what it means to facilitate “the people’s” participation in democracy at the local level, including participation in state and federal investigations, as well as due process hearings and disability-related litigation in local, state, and federal courts.

I understand that the only way to uphold democracy is to participate in it according to its rules and regulations. Anything that undermines the democratic process by violating a student’s constitutional rights, down to a shoddy triennial evaluation or a garbage IEP, is fair game for citizens knowledgeable enough to understand what they are looking at and the remedies available to them to fix anything wrong. Keeping people ignorant of what has worked in the past is a deliberate attempt to undermine people’s advocacy for themselves, their loved ones, and their communities in the present. People who fail to study history are doomed to repeat it, thus learning their lessons the hard way from trial-and-error rather than from the example set by those who came before them, which wastes time and slows down the rate at which society becomes smarter.

The first step of preventing people from advocating for themselves is preventing them from knowing about past efforts of advocacy that were successful, hence the book bans, altering curriculum standards to promote misinformation and omit important accurate information, protesting community-based pro-literacy and historical accuracy efforts spearheaded by minority groups, and attempting to control any other literary outlet that could expose children to facts that make these individuals uncomfortable. Keeping people ignorant is a powerful tool of oppression. That’s why American slaves generally weren’t taught to read. A literate oppressed class can communicate and collaborate more effectively to rise up against their oppressors.

People forget that America went through upheavals similar to what we are experiencing right now, back in the 1980s and 90s with some people freaking out over mandatory seat belt and motorcycle helmet laws and “no smoking” laws in restaurants and bars the same way some people freaked out about vaccines and masks during the worst of COVID. Back then, the Cold War had all the doomsayers expecting everyone to die in an unavoidable nuclear holocaust. Tipper Gore was coming for everybody’s rock music lyrics and Larry Flint, who once ran for president on the Republican ticket, was defending his first amendment right to show exploitative photos of consenting models to consenting purchasers of his published works, thereby effectively defending the first amendment rights of all pornography publishers.

Ironically, many of the men who I remember from back then supporting Larry Flint’s first amendment rights have since taken considerable issue with Colin Kaepernick’s first amendment rights when he peacefully protested murderous police violence against people of color and other minorities, as well as racial inequalities in America in general, by silently kneeling during the national anthem before the start of professional football games. Games! Grown men running around in matching outfits chasing balls and each other, like that’s somehow more important that the fact that we have a national epidemic of people on our local police forces terrorizing and murdering certain groups of people at will and getting away with it. It rather makes clear that they were willing to defend democracy when it meant they could look at pictures of sexually exploited models, but when it comes to protesting homicidal abuses of police authority against people of color and other minorities, as well as racial inequality in general, that is “a horse of another color,” which is disgusting.

My point is that the whacko minority has always been around, hypocritically asserting itself when it sees the opportunity to cite the law in support of its own agenda while denying the same protections to others with whom they disagree, before retreating into the corners and staying silent for a while until circumstances provoke them into coming out of the woodwork again. With each periodic re-entry into the mainstream, the whackos, at least temporarily, recruit others to their cause until their actual motives and sheer stupidity become evident to their recruits, who then abandon them as they begin to recede back into the woodwork. It’s a predictable cycle and now people are living long enough to see it repeat in their lifetimes.

When you realize it’s a predictable cycle, each new “Groundhog Day” moment leaves you better prepared for when the cycle repeats itself again. The benefit of learning from history is not having to waste time repeating past mistakes through trial and error to eventually arrive at the same conclusions. It’s Vygotskian scaffolding realness. It allows you to step into the problem-solving at a much later stage in the process, building upon the knowledge that was gathered by those who came before you, instead of starting from the beginning with nothing.

Here’s what I can tell you about having to interact with the crackpots that have infiltrated the public sector or otherwise raise pointless hell that interferes with the legitimate functions of government at the local level, as well as my childhood growing up in the middle of the still butt-hurt losers of the Civil War who have just been waiting for as long as I can remember for Dixie to rise again so they can get a re-do of the Civil War: I’m not kidding when I say their prefrontal cortices are made of cottage cheese, or the neurological equivalent thereto.

I’m entirely willing to believe that this is due to environmental deprivation of developmental learning opportunities throughout childhood and being raised by uneducated, usually deeply religious, authoritarian parents who supported slavery or descended from people who did, remained bitter and deeply chagrined about losing the Civil War, and relied on corporal punishment as their primary parenting method. I don’t think most of them were necessarily born without intact cognitive hardware to begin with. I think an awful lot of perfectly normal humans born into that culture have been deprived of developmentally appropriate environments during childhood that prevented the full development of their brains due to cultural beliefs that strictly controlled their lifestyles and environments.

There is a famous case study of a poor woman named Genie who was grotesquely neglected and abused by her family, and then subsequently exploited by the scientific community to study the effects on her development of spending the first 13 years of her life either strapped to her bed on her back or strapped into a toilet chair, always alone in her room with almost no human interactions. She spent most of the first 13 years of her life alone in that bare room with no toys, no language, and no intellectual stimulation. As a result, her brain failed to develop and she will always be intellectually, communicatively, and physically disabled and require constant care.

There were a lot of ethical concerns around how the research community handled Genie once she was rescued from her family. That said, her situation provided tremendous insight into what can happen to the brain of a developing child when necessary environmental stimuli are not present to trigger the brain to grow and develop. Play is learning, and formal education only adds to the learning that a child is naturally inclined to pursue independently in a developmentally appropriate environment. When children are deprived of developmentally appropriate environmental stimuli, the parts of their brains that are most ripe for learning are given nothing to learn and will atrophy from lack of use.

Genie’s uniquely terrible situation made clear that, once developmental milestones were lost due to environmental deprivations during childhood, they could not be recovered. This has since informed a great deal of science designed to understand how environments that contain some developmentally appropriate stimuli but not others affect human development across the lifespan, starting in childhood. In attempting to understand why the whackos are acting so whacky, it helps to understand that a fair number of them can’t help it.

This is how we’ve come to understand how It is entirely possible for a person to get just enough input from their childhood and adult environments to learn how to do accounting, cook dinner, and fly a plane, but still have failed to developed in other areas necessary to functioning as a fully capable member of society. Intellectually capable people with under-developed social/emotional functioning can pose a danger to themselves or others, particularly with respect to domestic violence and disgruntled employees.

What we are now starting to understand about the effects of children being raised in environmentally deprived environments explains a lot in hindsight, but creates a whole new set of challenges about how to ethically address this as a threat to domestic tranquility going forward. Our current societal problems with mass shootings are strikingly similar to the suicide bombers of the 9/11 era. Radicalization is a lot easier to achieve with people who have “holes” in their development from inborn disabilities and/or being raised in developmentally deprived environments. Parents who were raised as children in developmentally deprived environments are more likely to perpetuate the deprivation with their own children because they don’t know that something is missing, much less what it is, so they don’t know to add it to their children’s environments.

Education that includes developing critical thinking skills, such as those promoted by the Common Core, is necessary to create a public that is educated enough to participate in our government “of the people, for the people, and by the people,” with any success. So, when these groups start coming for our public education system to remove content and control what facts our students are allowed to be taught and which facts will be withheld from them, that’s censorship, not first amendment freedom of speech or evidence-based instruction. It’s entirely unconstitutional, and it violates best practices.

That is not legitimate parent advocacy. That is an organized effort to undermine our democracy by groups of radicals looking to cloak themselves in the language and superficial appearance of a cause people can support – here, parents’ rights in the public schools – so they can infiltrate, undermine, and profit from running our public systems in a broken way. As someone who does the job for real, I resent getting lumped in with these kooks by public education agency officials and their representatives when I attempt to help a family avail itself of the actual rules and regulations as a legitimate function of democracy. I deal with enough “Karens” employed within the public schools; I don’t need to also be associated with the “Karens” high-jacking the legitimate cause of parents’ rights and using it as a dishonest cover to pursue undemocratic ends.

In the special education context, which serves as a good example of the kinds of regulated mechanisms of democracy that exist at the local level, parents have federally protected rights to, 1) informed consent, meaning they fully understand any special education-related documents to which they are asked to sign their consent, and 2) meaningful parent participation in the IEP process, including a voice in educational placement decisions. This means that a parent’s input has to be seriously considered by all the other members of the IEP team, and it’s understood that the parent is automatically a member of the IEP team as a matter of federal law. The public schools are not permitted to unilaterally decide what goes into a student’s IEP without parental input and parents have recourse if they ever disagree with the public schools about what their students with disabilities require.

There are all kinds of rules and regulations that describe how parents of children with disabilities can avail themselves of the rule of law and enforce their children’s educational and civil rights. The problem is that the rules and regulations are complicated, the science that applies to their children’s unique educational needs is complicated, the processes and procedures take way too long for comfort, and there are usually at least some unrecoverable economic costs to the families that take time to pursue appropriate remedies from the public sector for their loved ones with disabilities. It’s not fair to the person with the disabilities when the people responsible for advocating for them, usually family members, know less than the people from whom they must make these requests.

The power imbalance is significant and is only further complicated by the reality that the public sector employees have millions of taxpayer dollars to tap into to pay lawyers to keep them out of trouble. Think: “pre-conviction Michael Cohen.” These are often high-priced fixers paid by tax-fattened would-be oligarchs who view their publicly funded agencies as their own little personal fiefdoms, and their consumers as just a means to their own personal financial ends, as though public program beneficiaries solely exist to justify the publicly funded paychecks of public agency administrators.

Every state has adopted standards by which all of its public schools must abide for the purposes of providing America’s K-12 students with what each state considers appropriate for students to have learned by each grade level across all core subject areas. These whacko book-banning conspiracy theorists and their dog-and-pony road shows at school board meetings, public libraries, and community-based literary events are taking their arguments to the wrong venues if they don’t like what is being taught in their states.

Most of these folks tend to favor the idea of reduced federal government and increased state rights, so I don’t understand what their argument is, here. They have an existing state right to establish their curriculum standards at the state level, and if they don’t like those standards, they can put forth proposed state legislation or a bring a lawsuit against their state that proposes to change their state’s standards, but their local school districts are still responsible for satisfying their state’s then-current standards until such time as they are changed, as a matter of law because this is a democracy, and that’s how you change the rules if you don’t like them in a democracy. If attempts to change the curriculum at the state level fail, one’s recourse could include filing a lawsuit or running for public office to effect policies directly, not book bans and death threats.

This brings me to the actual strategy that is at play here, which is something I call the “Anger & Fear Engine.” This goes to something that most people understand, which is the fight/flight/freeze mechanism. For many years, people only thought of the fight and flight aspects of it, and I suspect that’s because they rhyme and it’s easy to remember, but in all actuality, when an organism is threatened, it will actually either run away, fight to defend itself, or freeze and get either ignored or attacked. Plenty of people know what it’s like to automatically freeze in a moment of surprise, especially if it’s scary. The fight/flight/freeze mechanism is a very primitive neurological response that is normal in human development, and something humans share in common with almost all other living creatures.

Anger is generally a secondary response that puts one on the offensive after something has initially put one on the defensive. One gets mad when made to feel afraid, vulnerable, betrayed, insulted, offended, disrespected, rejected, inferior, etc. All of those things instantly make people feel bad about themselves, at least until they’re done processing what is going on, at which point the fight/flight/freeze mechanism kicks in. Anger occurs along with the adrenaline rush that hits when that “switch” is “flipped” from feeling compromised to going on the offensive.

If you opt for fight, you’ve taken that defensiveness and flipped it to going on the offensive. If you opt to flee or freeze, the problem is likely to remain unresolved, at least temporarily. Sometimes you need to retreat and regroup before you know how to most effectively go on the offensive and fight back. Flight can serve a constructive purpose if it buys you the time to figure out what you need to do and what tools you will need to fight back and win. This is the primary reason why most of my clients do not sign agreement to any important documents when they are presented; we take our time to review them outside of any meetings when we have time to sit and focus on what they actually say before responding to them in writing with any signatures. Freezing may buy time if it doesn’t result in getting attacked; if anything, it can buy time until an opportunity to either fight or retreat presents itself.

Dr. Martin Luther King said, “The arc of the moral universe is long, but it bends towards justice.” Those words entirely capture the amount of time it takes to do a good job of gathering the necessary data and documents to inform an appropriate program of instruction for a student with disabilities, much less engage in any enforcement mechanisms that might also be necessary to make that happen.

British film producer Peter Brook is quoted as saying, “Violence is the ultimate laziness.” His point was that negotiations and adult-level problem-solving require a lot of serious thought that is based on a comprehensive-enough understanding of the underlying facts, which can take a long time, but bashing people over the head can take just a few seconds and you don’t have to think that hard to do it. Violence is lazy because it doesn’t include all the hard thought and collaboration that is required for peace. Have you noticed that the people who do the most complaining rarely have a workable plan to fix whatever they’re complaining about? They exist to grieve, not resolve.

Fear can become anger very quickly, and becoming angry can instill fear in others, which can prompt them to become angry as well, hence the “Anger & Fear Engine.” It’s a common psychological response to threats, but uncontained anger and violence towards societies or specific members of society are the methods of barbarians. They are the methods of the lazy or incapable. Successful strategists can manipulate environmental factors according to best practices and the rule of law such that other people’s behaviors are shaped and changed into something more conducive to a healthy, thriving community without any fighting at all, such as when policies and practices actually meet the needs of the people. Sun Tzu asserted in The Art of War that the most successful war is the war you prevent and never have to fight.

The problem, however, is that the dangerously large minority of people whose prefrontal cortices are something akin to cottage cheese literally lack the neurological hardware to understand how to participate in the adult-level problem-solving necessary to seriously address society’s challenges. Legitimate parent advocacy requires a lot of research and writing according to science and law, not screaming in school board meetings, blocking the entrances of public libraries, or disrupting community-based literacy programs. Any organization that purports to engage in standing up for parents’ rights should be actually participating in activities that involve the actual mechanisms of democracy, or they are just fundraising off the backs of people in need without offering real solutions and telling them the only solutions are harassment and/or violence. They are selling the lazy alternative to people who don’t know how to engage in the real solution.

Moms for Liberty and organizations like it are not legitimate parent advocacy organizations. They do not assist parents in participating in the legitimate democratic processes and procedures that already exist to help parents uphold and enforce their rights. If anything, there is an effort by these groups to obstruct and/or subvert democracy at the local level by passing bigoted, unconstitutional local school board policies and aggressively attempting to uphold and enforce them, even if they are unlawful and unethical. The legitimate complaint and due process mechanisms available to parents are not utilized by groups like these, very often because they would not be successful on their merits for the types of undemocratic culture-war claims they want to assert.

It is so very important for parents to make sure that any outside providers they turn to for support are acting according to best practices and the rule of law, and are legitimately taking the needs of client families into account. Parents should be asking a lot of “how” and “why” questions as they learn how to exercise their rights under the law. The first question any parent should ask when embarking upon an effort to exercise their rights is, “May I please have a copy of my parent rights?” Start there and keep digging for more information if something doesn’t make sense. Call your state’s department of education and ask for explanations of things you don’t understand about the rules and how you can legitimately participate.

If you think your local education agency needs better board leadership, run for school board yourself or support candidates who agree with you about compliance issues that affect your children and local community. The only way to preserve democracy is to participate in it, which means voting, running for office, and availing yourself of complaint and due process procedures as appropriate to each circumstance to create the changes in the world you want to see. Throwing a fit and demanding that everybody else force reality to bend to your will isn’t democracy at all.

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Technology and the Intersectionality of Larry P.

Image credit: Fibonacci Blue, Flickr (https://flic.kr/p/q3PXEY)

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
1 Larry 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).
3 Larry 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.

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Example of a Request for a Better IEP Offer During the COVID-19 School Closures

Photo Credit: Mike Cohen

I know that everyone in special education is scrambling to try and make things work during these unprecedented times, but a lot of parents and advocates are struggling to find the language necessary to move things in the right direction and keep entire IEP teams from coming apart at the seams. Our kids who require expert behavioral interventions appear to be losing the most ground.

I want to speak to the families and advocates working with students who have behavioral needs by sharing the language of a communication that I recently had to submit on behalf of one of our families. It’s altered, of course, to protect the identity of the student, but I think a lot of parents and advocates may be able to recycle this language to fit their own situations.

Because so many families are in this same boat without an oar, we all need to share resources with each other so that we can be effective IEP team members. It shouldn’t be on us to keep school district people from spinning out, but humans are humans regardless of who employs them and, particularly if you’re a parent dealing with this on behalf of your kid, it in the best interests of your child to be the anchor that keeps the rest of the IEP team from drifting off course.

Just to put things into perspective, this student is in a Special Day Class (SDC) with embedded mental health and behavioral supports, including a Positive Behavioral Intervention Plan (PBIP) in his IEP that identifies his target behaviors as: Refusing to follow staff directions by either not responding, putting his head down, making statements such as “this is stupid,” “why do I have to do this?” or engaging in a different activity. Not surprisingly, this is what he is now doing at home during his school closure instead of participating in the online instruction.

Below is a copy of the email exchange that includes the language you can hopefully repurpose if you are having to argue similar points on behalf of your own children or clients. The first bit is an email that the parent and I received from the student’s special education teacher/case manager. The second bit is the reply I sent, which has now been forwarded to the district’s main office and we’re awaiting Prior Written Notice (PWN).

For more information about PWN, please see the ad-free early release of our informative Quick Fix video on Patreon by clicking here. This video will be released on YouTube for free, but with ads, in a couple of weeks and run for 30 days on YouTube before retiring to our Quick Fix Video Archive on Patreon, but for the $2.99 monthly pledge to our Quick Fix Video Archive on Patreon, you have immediate and indefinite ad-free access to that information plus all of our other Quick Fix Videos.

Because we’ve already published content on PWN, I’m not going to belabor it, here. I’m just going to get right into these emails and the language I hope at least some of you are able to repurpose and tweak to your own situations.

So, here is the email that I and the parent received:

Good morning,

I hope ALL is well and you guys are staying safe and well.

I was hoping you could help me with [Student’s] participation in our weekly Google Meets. He declined the meeting again for tomorrow  

I really need to speak with him at least once a week.

Thank you VERY much for your help.

Be Well,
[Case Manager]

Now, here is what I wrote in response:

[Case Manager],

We would appreciate the District’s help with this, as well.  Behavior modification is supposed to be embedded in [Student’s] specialized instruction as part of his placement, but that component is not being implemented in the home and no one who lives there is specifically trained, credentialed, or certified in the necessary expert disciplines.  The District is responsible for FAPE, even now.  The fact that [Student] is not receiving the behavioral interventions necessary to afford him equal access to education as that given to his peers without disabilities is directly reflected by his refusal behaviors in the absence of his social/emotional and behavioral supports from his SDC.

The parent is not in any position to implement an expert level of positive behavioral interventions to facilitate [Student’s] participation on her own.  She is relying on the public agency funded by the taxpayers to deliver these interventions under a federal mandate to provide him with a FAPE, that being the District, to come up with these solutions.  The parent requests an offer of appropriate behavioral interventions as part of a prospective offer of FAPE that addresses these immediate concerns or an offer of compensatory services that will be provided to remediate this behavioral and academic regression once school starts back in the Fall and the campuses are re-opened.

We understand that these are difficult times, but regardless of the difficulties, [Student] still has a legal right to a FAPE and he isn’t getting it.  You asking his mother for help to facilitate his compliance with online learning given his unique circumstances inclines us to worry that the District doesn’t know what to do and is grasping at straws.  Any IEP team member that actually understands the complexity of [Student’s] needs would already know that [Student] requires supports beyond what an average lay person would know to provide.

While [Student’s] mother absolutely wants to be part of the solution, she cannot be expected to deliver any kind of home instruction on par with what [Student] was previously receiving in the SDC, which was a step down in restrictiveness from his previous placement, and in which he had been participating for only a few months before the campuses all shut down.  There is an overtly apparent need for an increased level of support to [Student] in the immediate present to avert significant behavioral and academic regression during the shut-down.  

The lack of an appropriate response from the District right now will create a significant compensatory education claim that [Student’s] family will have to pursue in order to make him as whole as possible.  We’re not looking for a lawsuit, but if that is the only procedural mechanism the family has left to protect [Student], I will refer them to a qualified attorney.  It is the District’s burden to offer and render a FAPE.  We remain ready to collaborate with the rest of the IEP team to come up with an appropriate solution, here, and avoid the need to involve attorneys.  We would much rather sort this out than have to litigate.  We want to see [Student] appropriately served as quickly as possible.

[Student’s] family will participate in IEP implementation during the shut-down to the degree they are able, with the full understanding that they do not have the training, experience, or professional expertise needed to competently support [Student] behaviorally and academically at home on their own.  If his mother tells you that something that needs to be done is something they cannot do, they will expect the District to propose viable solutions to each such task.  

[Student] continues to require the expert services from which he was previously benefitting in the SDC and the effects of the absence of those expert services is apparent to all of us.  We understand that these difficult times call for out-of-the-box thinking.  So long as there is a viable plan for how to deal with this situation in place, whether it’s through the immediate increase and/or modification of how current IEP services are provided, a plan for compensatory services upon the campus reopening, or a hybrid combination of these two options, the family can trust that everything will come out okay in the end, but we can’t leave things so open-ended.  That lack of predictability is part of what is causing [Student] to experience increased school-related anxiety and avoidance behaviors.  

The District has a legal obligation to make a firm offer of FAPE based on [Student’s] present levels of performance in the immediate moment, as well as plan ahead for the next 12 months via the IEP process.  We’re not asking for anything other than what the regulations already promise and we’re willing to be creative about how we achieve that as an IEP team given the unique circumstances.  We await the District’s PWN in response to the request made herein.

Kindest regards,
Anne M. Zachry, M.A. Ed. Psych.

So, there you have it. What I see in all of this is a case manager who hasn’t been given the tools and authority to do what needs to be done. I’m not frustrated with the case manager. I feel bad for him because he’s being expected to somehow pull this off without the support of his employer.

I wish I had the PWN to include, here, because I think it would be equally informative. That may become a future post topic. In the meantime, if you think you can recycle this language to create your own request letter to address similar issues with your own children or clients, please feel free. It isn’t the work product of an attorney and I’m not putting this out there as formal legal advice. It’s just a tool that might be useful to some people, but if it helps even one family, it’s worth sharing.

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Prior Written Notice Requirements for Denying Parent Requests in Special Education Matters

Photo credit: Mary Cullen, instructionalsolutions.com

Prior Written Notice (PWN) pursuant to 34 CFR Sec. 300.503 gets a fair amount of general discussion among special education stake-holders, but, in today’s post/podcast, I want to look at it more in-depth. Today’s discussion looks more closely at the regulatory requirements and the types of special education contexts in which PWN becomes necessary.

I pulled a couple of examples from old case files that I can use to illustrate a number of points. These are old, closed cases from school districts where I currently have no active casework that happened years ago, but one of them involves bad players that I know are still out there.

The first one involved a student of an independent study charter school that had contracted with a third-party provider to deliver its special education and related services. Charter schools are often the worst at special education compliance, and online and independent study charters are usually the worst of the worst; for more information about that, see our prior post, “California Charter Schools & Special Education.” This case was no exception.

To put this example PWN into context, first I have to explain what was going on at the time. Our autistic student with high cognition also had debilitating anxiety that, combined with his autistic perseverative thoughts, could spiral his behaviors out of control, requiring intensive Board Certified Behavior Analyst (BCBA) services.

This student also needed interventions to address his anxiety, for which the parents, through me as their advocate from our agency, had requested a referral for a mental health evaluation as part of the IEP process. At the time, what we were requesting was provided by the local County Behavioral Health (CBH) agency under contract with the local Special Education Local Plan Area (SELPA), of which the chartering school district was a member.

So, while we were requesting a referral to the local CBH, it was under the auspices of an IEP-related assessment for the determination of IEP goals and services. In response, the third party special education contractor, using the local SELPA’s PWN form, replied with the following:

  1. Description of action proposed or refused by district: In a letter dated [DATE] and received by the charter on [DATE] the parents requested the school refer [STUDENT] to [CBH]
  2. Explanation of reason for proposal or refusal: Parents can make individual referrals themselves without the involvement of the school.

The PWN goes on to explain how parents can make their own community-based referral outside of the IEP process to the local CBH. In an effort to try and make it look like it was complying with the law by replying with official forms and filling in the blanks with words, what the charter’s third-party contractor actually did was commit a substantive violation of a Free and Appropriate Public Education (FAPE).

First of all, the request was for an IEP-related mental health evaluation and possible IEP goals and services. Going through the community-based referral process does not tie any mental health services provided to IEP goals and the delivery of a FAPE. Regardless of what our student may have or have not received by way of community-based mental health supports, none of that alleviated the IEP team from the mandated responsibilities of assessing for and providing any needed special education-related mental health services.

Further, the charter’s response on official SELPA forms was issued by its third-party contractor, which had no direct legal obligation to our student to offer and deliver a FAPE. The third-party contractor issued PWN on behalf of the charter, which was supposed to be acting on behalf of its chartering district, the latter of which being the entity that was actually legally responsible for FAPE but had no idea any of this was going on.

What this was really about was the charter’s third-party contractor not wanting any other entities involved over which it couldn’t exercise any kind of control. Because CBH would have been directly funded by SELPA and the State, the charter’s third-party special education contractor couldn’t lord payment over its head to control how it conducted itself like it did with its contracted teaching personnel and service providers.

If anything, it put the third-party contractor’s questionable conduct in the path of scrutiny to have an outside agency like the local CBH get involved. The third-party contractor denied the referral and pushed it back onto the parents in order to prevent CBH from becoming part of this student’s IEP and implementation teams. It was out of fear of accountability that the third-party contractor denied the referral and pushed it back onto the parents to pursue through community-based resources outside of the IEP process.

Measurable annual mental health IEP goals with the local CBH as the responsible provider would have likely meant CBH personnel in the home, where additional special education services of all kinds were needed but not being provided. Having CBH come on board to provide mental health services under this student’s IEP would have created outside, impartial witnesses to all of the other special education violations going on with this student’s case at the hands of the charter’s third-party contractor.

Adding CBH to this student’s IEP would have made the chartering district answerable for making sure the mental health goals were implemented as written, which would have required CBH to actually do its job, putting the third-party contractor’s scam operation at risk of exposure. Needless to say, this case ultimately went to a lawyer who filed for due process, the matter settled, and I can’t talk about what happened after that.

Prior to and at the time of settlement, this kid was in no way ready to enter the brick-and-mortar school setting, which is far less restrictive than being educated at home. This was one of those situations where the independent studies charter school kept insisting that the student’s living room was the general education setting because that’s how it was for all of their students, without regard for the fact that the only reason his living room was the Least Restrictive Environment (LRE) for him was because he couldn’t handle a traditional classroom.

If this student had been enrolled in a traditional school district at the time, but still was receiving instruction at home, it would have been regarded as one of the most restrictive placement options possible. His in-home placement was light years from a general education classroom in a brick-and-mortar setting, which everybody knew he couldn’t handle. It was a technicality that in-home instruction was the norm for independent studies charters, such as his. His situation wasn’t about family educational choice; it was about individual educational need.

Educating him at home was an accommodation. His parents would have preferred to send him to school, in all honesty, but they made the choice to home-school because of his demanding special needs. He needed intensive autism and mental health services to get to the point where he was able to access the world outside his home with success.

The charter was effectively trying to turn him into a well-educated hermit, which often seems to be the case with students with these types of needs in independent study programs. Bringing the instruction to students who are challenged to function successfully outside of the home may seem to be prudent, but if it doesn’t include related services meant to increase the student’s independence and access to less restrictive learning environments, it’s not a FAPE.

Preventing the provision of such services in order to avoid accountability is a despicable breach of ethics, as well as a monstrous denial of FAPE. First, in this case, the denial to refer for IEP-related mental health services as requested by the parents interfered with meaningful parent participation in the IEP process, in addition to violating procedure with respect to referrals for evaluations and reevaluations.

Secondly, it denied a FAPE because it meant the student’s IEP was informed by insufficient assessment data. As a matter of FAPE, the student had a federally protected right to assessment in all areas of suspected disability and learning need. That right was denied when the charter’s contractor chose to deny the mental health assessment referral and push the burden back onto the parents to pursue through community-based resources unrelated to the IEP process.

Further, the contractor’s efforts to circumvent the IEP process not only undermined meaningful parent participation in the IEP process as promised by federal law, it also meant that the student’s IEP was not reasonably calculated to render meaningful educational benefits in all areas of unique student need, which also denied a FAPE. As such, the student was being deprived of meaningful educational benefits in the areas of mental and emotional health, which was negatively impacting his behavior and, thus, access to education, which also denied a FAPE.

So, just on the basis of this misuse of an official PWN form, the charter’s third-party contractor made the record of its efforts to circumvent the IEP process, indirectly on behalf of its charter school client’s chartering district, thereby denying a FAPE in at least four different ways:

  1. Denial of meaningful parent participation in the IEP process
  2. Failure to assess in all areas of suspected disability
  3. Failure to design IEPs that are reasonably calculated to render meaningful educational benefits in all areas of unique student need
  4. Failure to deliver meaningful educational benefits in all areas of unique student need

The point I want to get across is that, just because you get a PWN on official paperwork, it doesn’t mean the education agency has actually followed the law. It’s not just the matter of complying with procedure by sending something out titled “Prior Written Notice.” What is written in the notice matters, and is regulated by federal law.

In my second example, also from years ago, and also ultimately settled after the family brought in an attorney, the situation was different. Our student had lived with his parents in the attendance area of a school district near the Southern border of California. Shortly before I became involved, this child’s mother had passed away, leaving his father alone to provide all of the in-home support his autistic son with demanding needs required while holding down a job as a traveling engineer.

As difficult as it was, the most sensible thing to do under the circumstances was for the student to live most of the week with his grandmother in another community far to the north in the San Joaquin Valley. The student’s grandmother, his late mother’s mother, was available to be a full-time primary caregiver and his uncle, his late mother’s brother, was available to help with any kind of important decision-making, such as with IEPs and regional center services. The student’s father shared his educational decision-making authority with his mother-in-law and brother-in-law so that they could take on these serious responsibilities.

In anticipation of the student moving to his grandmother’s and becoming a student of the local school district, his uncle went to enroll him and shared with the District the student’s IEP. The IEP from his incoming school district included a significant amount of Non-Public Agency (NPA) services that were provided during and outside of the school day because of the intensity of the student’s needs.

These services were not typical for most IEPs, but IEPs are supposed to be individualized. Based on the evidence it had at the time, the IEP team at his previous school district had determined that these services were necessary based on his unique circumstances to provide him with a FAPE.

The receiving school district nearly had a fit when it saw this student’s incoming IEP. It utilized every procedural tactic at its disposal to argue that it didn’t have to implement the incoming IEP as written. That’s one of the issues that was addressed by the settlement, so I can’t talk about it, here, which is a bummer because the legal arguments around this issue were total fireworks.

The bigger point that almost got lost over the arguments over procedure, which was likely the District’s intent by arguing over procedure, was what the student substantively required as a matter of FAPE. The receiving school district simply had no intention of paying for NPA services and insisted on stripping out all of the individualized supports described by the student’s IEP, which had him placed in a general education setting with age-typical language and behavior models, and placing him in a Special Day Class (SDC) for students with autism.

This student was mainstreamed with a 1:1 NPA behavior aide to keep him involved in the instruction and facilitate his language, social, and classroom behavior skills development. The receiving school district proposed to put him in a full-time classroom filled with other students with needs like his own and no models of age-typical language and behavior. He was being successful in his previous placement with the configuration of services described by his IEP.

The receiving school district had never met the student, much less assessed him, and therefore had no educational or legal basis to place him in a more restrictive setting. Regardless of whether procedure required the receiving school district to implement the incoming IEP as written or not, it was still obligated to offer and provide a substantively appropriate FAPE. It had no data to inform its offer of services and placement, and certainly nothing that suggested his needs had changed such that a more restrictive placement was educationally necessary.

After articulating the request for the receiving school district to implement the incoming IEP as written, this was the District’s response, crafted with the assistance of its attorney, as I understand it:

Description of the Action Proposed or Refused by the District

The [District] and [County Office of Education (COE)] are refusing to provide BCBA supervision of the BIP dated [Date]. The District and [COE] are denying the request for 1:1 instructional aide support to be provided by a NPA. The District and [COE] are also denying in home support, parent training, and direct speech and language services provided in the home. The District and [COE] continue to offer a [COE] operated special day classroom located at [Campus] as an interim placement for 30 days …

Explanation Why the District Proposes or Refuses to Take Action

… you requested that [Student] be provided with a BCBA to oversee the BIP. The District and [COE] offered 60 minutes per month of consult behavior intervention services to address the implementation and training of the BIP … to be provided by a [COE] program specialist with … required training for Functional Behavioral Assessments (FBA) and BIP … the District and [COE] feel that the program specialist would be able to implement the strategies and recommendations of the BIP.

… you requested that a NPA provide the direct 1:1 instructional aide services. At the meetings, you indicated that the NPA instructional aide is essential to the successful implementation of the current IEP. The District and [COE] recommend intensive individualized services daily … Intensive individualized services are provided by [COE] instructional aides … The District and [COE] feel that [COE’s] trainings, in addition to the support and oversight provided by the program specialist, provide enough knowledge for [COE] to successfully support [Student] and fully implement the current IEP.

The District and [COE] are refusing to provide these additional services and continue to recommend 360 minutes per month of direct speech and language services and 30 minutes per month of consult speech and language services. Given that the in home services that are being requested are now embedded in the categorical program in a way that his prior placement in a non-categorical program did not provide, in home services are not needed.

So, that’s a lot, but here again is an example of a school district complying with procedure by sending a PWN, but, in doing so, making the record regarding its substantive denials of a FAPE. As stated previously, the receiving school district had conducted absolutely no assessments that indicated that this student needed to be placed in an SDC instead of supported in general education with push-in supports. This was an LRE case.

Basically, what the receiving school district was doing was making a placement decision on the basis of what it was willing to spend rather than what was necessary to educate the student in the LRE. The only guidance it had as to what the student required was the incoming IEP. It had no idea whether what it was offering as a 30-day interim placement would completely derail this kid or not (which it would have).

The language that jumped out at me that really chapped my hide were the statements about what “the District and [COE] feel” is best in the absence of any evidence. Basically, this was the District and COE admitting to basing their decisions on opinions rather than the facts that the regulations require.

It’s a violation of both the IDEA and Section 504 of the Rehabilitation Act to to change the type of placement a student with disabilities receives without first assessing to determine that student’s current placement needs. Placement decisions are based on what is the LRE in which the services can be rendered such that the goals are met. There was no data demonstrating that an SDC placement was suddenly the LRE for our student, after he had been successfully placed in general education with push-in supports under the IEP he already had.

Like I said, this case was ultimately settled and it happened several years ago. But, these kinds of things continue to go on all the time. I’m only citing old cases, here, because I don’t want to talk about anything currently being litigated or potentially litigated. The regulations for PWN have been the same for a long, long time, so there’s not some recent change in the law that would make older cases irrelevant.

As a parent, if you get a PWN in the mail denying a request you’ve made, don’t assume that the explanation you’re being given is a good one. Just because it’s on official letterhead or official form doesn’t automatically make it proper.

Really, it all boils down to 34 CFR Sec. 300.503(b)(2), which requires any PWN to include, “An explanation of why the agency proposes or refuses to take the action.” The explanation as to why a parent request is being denied better be a good one, or all the District accomplishes is using a procedural requirement to document its substantive denials of a FAPE on the record. If that’s the case, it’s evidence that parents can use in due process to achieve appropriate educational outcomes for their children with special needs.