The Law Office of Lillian E. Wong
A Massachusetts Special Education Attorney

The Individuals with Disabilities Education Act (IDEA) and its Massachusetts equivalent provide children receiving special education numerous rights and protections.  These and other statutes, regulations, and decisions constitute special education law.  But the law is only effective if it is enforced.   To understand the implications of enforcement, speed limits provide a useful analogy. 

We all know it is against the law to drive over the posted speed limit, and yet many people continue to speed.  Admittedly, there are people who drive under or at the speed limit simply because it is the law.  Those people are few and far between.  Sometimes we speed because we honestly don't know the limit or we are not paying attention to the speedometer.  But most of us also know that if we go only a few miles per hour over the limit, we probably won't get pulled over.  We also learn what roads are speed traps and which ones are never monitored and adjust our behavior accordingly. 

School Districts are like drivers.  There are some who follow the law because it is the law.  Others are confused or ignorant about special education law, or simply overburdened with their many other responsibilities.  But then there are the school districts that know the law, and blatantly disregard it.  Why do they do this?  Because they are not being held accountable for their actions. 

So how do you as a parent enforce your child's rights?  Figure out what kind of "driver" your school district is.  If they don't know the law or were unaware of their mistake, a simple written reminder quoting the law will often solve the problem.  But sometimes, schools, like speeders, need a fine to alter their behavior.  If the school knows the law, but willfully ignores it, parents must pursue a due process hearing and hold the school accountable.  While this process can be stressful and costly, it is sometimes the only way to take this allegorical reckless driver off the road.

This question was originally posted on www.avvo.com. 

Question:

My son has an autism spectrum disorder. He has problems, and is not in the appropriate special ed class, despite a request to change. He has had CPS called because of issues that are related to his problems, more than once. He has trouble with appropriate urination, which is common in autism, and he has had times where he has been told he stinks even though he has showered and his clothes directly from the dryer. They say it is cat pee, and while we have cats, this isn't the problem. I do everything I can to make sure he doesn't "smell" before he leaves. This isn't the first time they have called, despite my discussing his issues beforehand, and I believe that some of his other harassment including excessive use of time out room are because the teacher doesn't know how to deal with him.

Answer:

The short answer is yes, you can file a harassment claim.  The real question is, should you?  First, schools have an obligation to call CPS if they suspect a problem.  Courts will give this obligation a lot of deference.  Courts give schools a lot of deference in general.  Also, since your child may have difficultly expressing himself, the school may feel an investigation is even more necessary.  That said, I understand how insulting and frustrating a situation like this can be.  Unfortunately, your story is quite common.

In my opinion, your real focus should be your son's education.  If I had to pick a battle to fight, I would begin fighting for him to be in the appropriate class.  If you sue the school, you risk creating an even more adversarial relationship with the school, and the school may in turn, automatically disagree with your requests for placement.

I recommend that you consult a special education attorney.  You can find one via the Council of Parent Attorney and Advocates (www.copaa.org).

Independent evaluations are critically important to understanding the educational needs of your child.  Unfortunately, quality evaluations are expensive (around $5000).  In Massachusetts, parents can seek an independent evaluation at public expense under state or federal law.  These laws are complicated, and failure to comply with their requirements will almost always leave parents footing the bill.  Special education attorneys help families navigate these laws.

For more information about the importance of evaluations click here.

Evidence is used to prove what you are saying is true.  It is one thing for a parent to claim a child needs a certain service or program, but quite another thing to prove it.  In a due process hearing you must have independent evidence to prove your case.  But gathering evidence is vital outside of the adversarial process.  Parents who can cite evidence that supports their child's legal rights are likely to reach a more timely and acceptable resolution with the school district.

So what constitutes evidence?   Test scores, evaluations, meeting notes, letters, and emails are all evidence.  Oral communications are also evidence, but they are often seen as less reliable because they are harder to prove.  To deal with this problem I recommend that parents keep a journal that contains the date, location, and content of any verbal communication they have with the school.  Record these interactions directly after they happen, that way your memory is fresh.    

Another way to permanently capture oral communication is by writing a follow-up letter.  If a school administrator promises a service for your child in a meeting, send a follow-up letter to that person the next day and refer specifically to what they said.

Journals and follow-up letters can also be used to document inaction.  It's hard to prove a negative, but if you record your repeated requests or unreturned calls in a journal that is evidence too.

Creating a paper trail of your story not only results in evidence you can put forth at IEP meetings, mediations, and due process hearings,  it makes everything you say more believable because your statements are grounded in facts.

This question was posted on Avvo.com by an individual in Melville, NY.  Here is my response:

FERPA stands for the Family Educational Rights and Privacy Act. It gives parents the right to inspect, review, and receive a copy of their child's educational records. Under the law, parents may request that school officials explain the contents of the record, and if the parents disagree with its contents, they may ask the school to amend inaccurate information. FERPA also forbids the disclosure of any "personally identifiable information" about the child without parental consent.

I would recommend hiring a lawyer if you are having difficulty accessing or amending your child's file or if you feel confidential information about your child has been compromised.

Massachusetts General Law chapter 71B section 3 (which became effective on January 8, 2009) grants parents and parent-designated consultants the right to observe their child's current or proposed program.  Observation offers valuable insight into the program, often more valuable than the written description of the program in the draft IEP.  Through observation, parents and their designees can experience first-hand the program's physical environment, the skill and demeanor of classroom personnel, and the types of other students participating in the program.    Through observation parents become more informed about the optimal placement for their child.