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

Question:

I feel like my child is being treated unfairly by his 2nd grade teacher what more can I do?  I have made it clear to the principal and teacher that I'm not happy with the situation. I have asked for a classroom change, sat in class with my son and I am at a point where I just have to tell him to grin and bare it. He is ADHD and has had no efforts by the teacher to facilitate his needs. It is to a point where she has been embarrassing him in front of other students in the classroom and although I complained It has currently had no action taken. Frankly I'm tired of him crying everyday because of her persistent bullying. Any advice would be appreciated. Thank you.

My Response:

If your child doesn't have a 504 or IEP plan, I would request that the school evaluate him, if you suspect his disability is interfering with his ability to learn. Children with ADHD often act impulsively because of their disability, and this can lead to school disciplinary action. It is always better to avoid this issue by proactively addressing the situation, often with a functional behavioral assessment and a positive behavior plan.  Other children with ADHD are disciplined by teachers for their lack of attention in class or constant fidgeting.  It is important that teachers understand that these behaviors are a result of a disability, and not simply bad behavior.

Once your child's special education needs are addressed, you could consider filing a complaint against the teacher with the Department of Education.

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

Question:
My son is disabled and we have been having a problem with our school system. He has a special ed teacher that has said statements to him like "you will never get your driver's license because you can't read" "you will never get a job because you are too lazy and don't know how to do anything" there has been many other comments. I'm just wondering if I have a case?

My Answer:
I'm not sure what kind of case you are contemplating.  Certainly, this teacher should be reported to the Department of Education in your state.  You can file a complaint yourself, or work with an education attorney.

My main concern is that this person is charged with educating your son.  There is an argument that the school has failed to provide your child with a free and appropriate education (FAPE) if the special education teacher is disparaging your son, calling him lazy, and your child is not able to read.  The remedy for failure to provide FAPE is compensatory education. 
 
Cases like these are complicated.  It is hard for me to give more advice without consulting with you further.  I suggest you speak with a special education attorney in your area.  You can find one at www.copaa.org. 

Until then, I would encourage you to document each one of these comments and make the school aware of these issues in writing.  You can learn more about creating a paper trail 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.