Dear Colleagues,
Introduction
Earlier this summer, I served as an Expert Witness for a High School student trying to get more extensive special education services for a very serious and rare medical condition. While we made the best case possible for the Administrative Law Judge, the student lost.
While I legally understood the Judge’s ruling, the fact is that school districts historically have won the vast majority of special education lawsuits in this country—at both the Due Process and State or Federal Court levels.
At the same time—having testified many times in State and Federal Court for both students and school districts—I would like to suggest that some Districts focus more on the short-term “Win,” not understanding that, inadvertently, they are also incurring a long-term “Loss.”
In the next few years, special education litigation is expected to skyrocket due to the direct and/or related services not provided to Students with Disabilities (SWDs) during the pandemic. In fact, the U.S. Office of Special Education Programs (OSEP) telegraphed this coming “storm cloud” when they published an official Guidance Letter to state and local education agencies on August 24, 2021—while our country was still in the midst of the pandemic.
The Guidance reiterated OSEP’s “commitment to ensuring children with disabilities and their families have successful early intervention and educational experiences in the 2021-2022 school year.” The byline to the Press Release stated: “Regardless of the COVID-19 pandemic or the mode of instruction, children with disabilities are entitled to receive a free, appropriate, public education.”
And, the Press Release quoted U.S. Secretary of Education Miguel Cardona:
"Serving all children and students with disabilities
in our public schools isn't just written into law—it’s a moral obligation and
strong equitable practice. When we recognize and celebrate these
differences as strengths, and when we help all children make progress toward
challenging educational goals, everyone benefits."
_ _ _ _ _
Critically, the pandemic has no “statute of limitations.”
Thus, it is possible that the parents of a kindergarten student with disabilities—who was not appropriately educated during the pandemic—could file a lawsuit ten years later when that student is failing his/her sophomore year in high school.
The primary claim? That the pandemic-year loss of services in 2021 created a multi-year “educational cascade of student failure and frustration” in 2031.
NOTE that I am not saying that these parents will “win” the case.
What I am saying—for anyone in a district or school who has had to prepare for and participate in a Due Process or Federal special education court case—is that the case still needs to be tried.
And this will involve countless hours of staff documentation, preparation, and participation. . . not to mention the emotional toll during the entire process.
Given this, I would like to provide my own “guidance” of what to do and not do when parents of SWDs express serious and ongoing concerns about their child’s IEP services. . . and litigation appears to be on the horizon.
I do this as a school psychologist who has
worked in schools for over 40 years, and as an experienced Expert Witness who
has consulted with and/or testified in court for both parents and school
districts many times
_ _ _ _ _ _ _ _ _ _
Seven Suggestions to Help Districts When Special Education Litigation Looks Inevitable
Suggestion #1. Admit Mistakes/Don’t Focus on Being Right
Too many times, district or school personnel have made legitimate and important (or, at least, questionable) errors when delivering IEP services. And yet, they fear that these errors will result in sanctions or penalties, and they take a hard line, denying the mistakes while hoping that they can create enough uncertainty to “scare” the parents (or guardians) from filing a formal complaint.
Here, I suggest taking a page out of the “Corporate Handbook.”
We have found time and again that—when big companies make major errors—the fall-out is moderated when the CEO sincerely and publicly admits the mistake and outlines a plan to address the breach and make amends.
In most cases, when legitimate special education mistakes are litigated, the result is a ruling requiring compensatory services.
Given this, why
would a district not admit its mistake(s) to the parents, sincerely apologize,
and offer the compensatory services that will likely be required anyways after
a long, emotional, and relationship-damaging due process or court case?
_ _ _ _ _
Suggestion #2. Remember that Younger SWDs (and their Parents) may be in Your District for Another 10 Years
Expanding on my “relationship-damaging” comment above, district and school personnel need to remember that—while a SWD’s administrators and teachers change over time, a student’s parents typically do not change and they often have long memories.
Thus, when an emotional, relationship-breaking special education disagreement (with or without a due process or court hearing) occurs early in a SWD’s educational career, this may negatively affect the parents’ attitudes, beliefs, expectations, interpretations, and interactions with school district personnel for many years to come.
While I am not suggesting that we placate parents who have SWDs, I am saying that (as above) districts may “win” the short-term battle over IEP services, but lose the long-term relationship war.
And remember, that
loss may impact every annual IEP review meeting, every three-year
re-evaluation, and many well-meaning staff who don’t know the history, but
experience the tension (or worse) nonetheless.
_ _ _ _ _
Suggestion #3. Make Sure that All Communications and Discussions are Clear
Educators—and, especially, special educators—live in a jargon-filled world. And even when we boil the jargon down to essential special education terms, parents still do not always fully understand these terms.
For example, do parents of SWDs really understand what the “appropriate” in the phrase, “free and appropriate public education,” really means?
No.
Parents hear this phrase and think only about what they belief or know is “appropriate” for their child’s education. They do not understand the case law and the functional (and limited) meaning of this loaded term.
District and school personnel need to do some soul-searching and analyze what they say when “communicating” with parents of SWDs. These professionals need to especially focus on determining what the parents actually understand versus what they think they communicated.
The best approach here is to watch parents’ facial and physical reactions during meetings, to listen to their words and intonations, and to respectfully ask them what they thought they heard when there appears to be a disconnect.
This will go a long way toward clear, consistent, accurate, and parent-centered communication.
In contrast, the
worst approach is to plow through the agenda, get the reports done, and hand
the parents the state’s Special Education Procedural Safeguards Manual,
checking that step off the meeting checklist while suggesting that they read
it.
_ _ _ _ _
Suggestion #4. Know that Parents Know What They Know, Not What You Know
Related to #3 above, districts and schools need to understand that, when unhappy with their child’s special education program, parents with SWDs consult three primary sources: (a) friends or other parents with SWDs; (b) Google; and (c) formal or informal advocates.
Thus, they only “know what they know.”
From an advocacy perspective, educators are responsible for educating parents about their child’s status and needs, their roles and responsibilities, and their rights and safeguards.
Indeed, when educators have their own SWDs, they expect no less.
For example, some parents come into IEP meetings with specific interventions or programs that their child “must have” in order to succeed.
When this occurs, some (special) educators at the meeting—for a variety of professional and personal reasons—implicitly or explicitly disallow these suggestions, sometimes citing IDEA and case law saying that “parents are not allowed to dictate specific interventions on an IEP.”
A more collaborative tact is to first “seek to understand” (a) what the parents’ educational goals are for their child, and (b) how they found and what they understand about the intervention they’ve suggested. This can then move to an educative tact where parents (if true) can be shown how the current (or school-recommended) interventions have the same goals, are more evidenced-based, and have a higher probability of success for their child.
And, who knows? Maybe the parents have found an intervention that actually is better. . . not just for their child, but for many other SWDs in the school or district.
The “take-away” here is that educators are too often afraid of educating and empowering parents, because they fear that their “good will” will be turned against them down the road.
In the end, none of
us is an expert on every topic in education. District and school personnel are
encouraged to view their work with parents—even “challenging” parents—as a
growth experience, especially as they try to understand where they are coming
from and how they got “there.”
_ _ _ _ _
Suggestion #5. Parents often go through the “Stages of Grief”—They are Afraid, Anxious, Angry, or in Denial
Building onto the suggestions above, district and school personnel need to consider how parents’ emotions—relative to their SWD—are impacting their interactions and behavior.
For example, it’s scary to have a “child with exceptional needs” when you were expecting (and “everyone else” has) a perfect child. . . and your child is causing financial and other stress within the family unit, and you don’t know what the future will bring—tomorrow or even after your child graduates from high school.
It’s frustrating when you thought “the school” was committed to your child’s best interests, they “irresponsibly” failed to implement important parts of the IEP, and now you are questioning yours “hands-off” approach and “blind” trust.
Or, it tests your faith when, as in the Court case I was just involved in, your child has a rare medical condition, no one in the school is listening to you or your doctors, and teachers are questioning the validity of the condition, suggesting that your child is lazy, not sick.
While parents typically have but one child with a disability, districts are often educating hundreds of SWDs. For this reason, it is easy for district and school personnel to lose the “personal, individual perspective” that parents expect for their child.
And so, it is not a bad thing for these professionals to continually ask themselves:
“What would I do if I were this parent and responsible for this child’s life, education, and well-being? And what would I expect of the educators responsible for my child for six hours each day and 180 days each year?”
Perhaps, these two
questions would engender the understanding (I originally wrote, “humanity”) that
we all need to fully serve not just our SWDs, but their parents, siblings, and
extended families as well.
_ _ _ _ _
Suggestion #6. Keep it Professional, Not Personal
I fully understand that, at times, frustrated parents “cross the line” and “make it personal.” It’s not appropriate, but it happens.
I remember a Building Principal who would approach this situation by “killing the parents with love.”
In essence, this Principal was comfortable “in her own skin,” and she was confident both with her professional motivation and expertise, as well as with how much she cared about her students (and staff).
She also knew that confronting “fire with fire” would not work, and that she needed to interact with challenging parents with understanding, empathy, and love.
And even if her love did not change the parents right now, it could be the foundation for change in the future.
And even if the
parents never changed, she—at least—could go home each night knowing
that she did everything in her power to work with them professionally and in
good faith.
_ _ _ _ _
Suggestion #7. Don’t Mediate if You Don’t Intend to Moderate
My last recommendation is more procedural than personal. . . except that it often becomes more intensely personal for parents when school districts do it.
When there are serious special education disagreements, it often is strongly suggested that districts engage in formal dispute mediation with the parents of the SWD involved.
My recommendation is that districts should not do this if they know ahead of time that they will not change their position(s) during the mediation session.
Said a different way: Don’t go through the “charade” (never mind the time and expense) of a mediation that has no hope of resolution. The likely result is that you (a) further infuriate the parents; (b) redouble their efforts to “beat you” at the next level (i.e., litigation); and (c) demonstrate—at least to the parents—that you do not have their child’s best interests at heart.
Districts do not get “brownie points” from Hearing Officers because they were open to negotiation, and “tried” mediation.
Hearing Officers do
not care. They are focused on the facts, the law, and the decisions they have
to make when a case comes to their docket.
_ _ _ _ _ _ _ _ _ _
Summary
This Blog has discussed seven suggestions not just to help districts avoid special education litigation, but—really—to help them (a) to truly educate all students with disabilities; and (b) to collaborate with their parents or guardians with empathy, understanding, sensitivity, and professionalism—even when things get tense or confrontative.
While legally, school districts have a much higher probability of success during special education litigation, and they may “win” most of their cases, the erosion of their good working relationships with parents of SWDs may result, in the long-term, in a “district-net-loss.”
Indeed—and especially in today’s political environment where parents are being encouraged to confront districts’ educational policies, procedures, and practices—parents of SWDs talk with other parents of SWDs.
This creates the potential that one parent’s grievance triggers many parents’ shared grievances.
I am not trying to predict a disaster here. I am trying to write a “cautionary tale.”
And the suggested “morals” of this tale involved:
· Suggestion #1. Admit Mistakes/Don’t Focus on Being Right
· Suggestion #2. Remember that Younger SWD (and their Parents) May Be in Your District for Another 10 Years
· Suggestion #3. Make Sure that All Communications and Discussions are Clear
· Suggestion #4. Know that Parents Know What They Know, Not What You Know
· Suggestion #5. Parents often go through the “Stages of Grief”—They are Afraid, Anxious, Angry, or in Denial
· Suggestion #6. Keep it Professional, Not Personal
· Suggestion #7. Don’t Mediate if You Don’t Intend to Moderate
In the end, while a
short-term, litigation win by a district may result in a long-term parent-relationship
loss. . . a short-term special education resolution often creates the
foundation for the long-term success of the involved students, staff, and
parents.
_ _ _ _ _
Thanks for reading this important Blog.
As always, know that I am always available for a free one-hour consultation conference call to help you and your colleagues apply the information and perspectives above into practical, day-to-day action.
Even if you disagree with some of the suggestions above, I often find that a more personal Zoom discussion identifies both areas of consensus and opportunities for professional and personal growth.
Please feel free to reach out if you want to “give it a go.”
Best,
Howie
[CLICK HERE to read this Blog on the Project ACHIEVE Webpage]
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