Blog

 

By Brenda Rogers, MA/ABD 

 
 

Does school policy violate Least Restrictive Environment 34 CFR § 300 states:
 

 

A mom enrolled her freshman daughter in the 9th grade and the school counselor told mom her teenager must give up her only elective to take a study-skills class that all IEP students must take. Mom questioned that fairness of this policy because it takes away her daughter's only elective. Both the counselor and the IEP team insisted that district policy requires all students with IEPs to take a study skills class and the only way to take this class is to forfeit the elective.
 
Students without IEPs get to take electives and do not have to take the study skills class. So, mom called an advocate. When mom attended the IEP meeting with the advocate, the IEP team agreed with the advocate that the student's unique needs were not met by the study skills class because the student had no history of problems with work completion, study skills or homework completion. When the advocate questioned the IEP team about district policy requiring only IEP students to take the study skills class, the IEP team explained that they like IEP students to take this class but it is not absolutely required for all students. The student's schedule now includes an elective and no study skills course. 
 
In this case, the school policy selecting only students with IEPs to take a special class that all other students are not required to take violates the law. 
 
"Each public agency must ensure that -
  • (i) To the maximum extent appropriate, children with disabilities, including children in public or private institutions or other care facilities, are educated with children who are nondisabled; and
  • (ii) Special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only if the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily."
  • (ii) Special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only if the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily."
  • (ii) Special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only if the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily."
 
Any school that requires all students with an IEP to attend a special class non-disabled peers are not required to take violates Least Restrictive Environment (LRE) law. Just because school officials say: "this is our school policy," does not make the school policy legal. An illegal school policy can be challenged. 
 
Contact your state procedural safeguards hotline to file a state complaint for your child or a variance for all special education students in your school!  
 

Lawlessness  

 
I am disturbed by procedural lawlessness. For instance, a California school district decided to ignore a written assessment request. Seven months after mom requested her child be assessed for reading problems, the child was assessed. Then, an assessment was conducted without a valid consent form signed by a parent. As an advocate, the "do what you want" standard operating procedure is a problem for the general public. The public school is a core government agency. When core government agencies do not consider procedural law important in performing core government functions, it's the community that has a lawless government agency. 
 
Law and order in society is important. Procedural law in special education exists so that disabled students can expect to have their needs met within a time frame recognizing developmental needs of aging children. When assessment and intervention are delayed for long periods of time, a child experiences educational loss in a fast paced system. Not complying with legal time limits means that disabled students fall further and further behind while the curriculum advances farther and farther ahead. 
 
In the long run, ignoring timelines creates loss of educational benefit. Students with reading disorders, for example, may have their reading problems ignored for several years before receiving any intervention. Some people leave high school unable to read and some people leave high school with very low reading skills. In cases where students leave school unprepared for even entry level employment, it's often the school giving the community young adults that are ill prepared for independence. 
 
The school and the school district must be held accountable for procedural compliance with law in identifying students with special needs and in delivering special education. As community members, don't we have a right to demand our public institutions comply with procedural law? Our kids need us to demand schools comply with law. 
 

The Need for Public Oversight

 

The IEP is a wonderful document. I'm truly grateful to those wonderful people that created the Education for All Handicapped Act. There was a time when disabled children were not allowed to go to school. Before the 1979 EHA, students with disabilities were sent home from school or not allowed to attend at all. The EHA and its successor IDEA are truly wonderful laws. These laws afford disabled children the right to be in school and the right to fair treatment.

Having rights for disabled students in public schools does not mean that these rights are followed by school personnel. In some cases, school employees do not know about special education laws and in other cases, school personnel work alone and/or together to ensure a very narrow version of IDEA operates in the school. Because schools differ greatly in their implementation of IDEA, it is critically important that parents know what their child's rights are and how to use these rights to ensure fair and legal treatment.

Unfortunately, special education does not enjoy the same public scrutiny that the prison system enjoys. Individuals, attorneys, watchdog organizations combine to create public oversight helping keep state power in check within the corrections system. Special education operates with less accountability than the prison system. Most of what happens to prisoners occurs in private but inmates are old enough to file complaints about illegal and inhumane treatment. Children, especially disabled children, are often ill-equipped to complain or don't know that their experience is not legal.

Knowledge is power. While the IEP is a private document, and the systematic procedural violations of law committed by schools systems are done in private, the more children and parents know their rights, the more violation of procedural law can be exposed. Parents often experience procedural violations in seclusion in the form of school policies that violate law. When parents discover procedures were violated in the administration of their child's education, the typical response is to simply get the school to comply with law. Little, if any, lawlessness is reported to state agencies through complaints to the state procedural safeguards unit at the State Department of Education.

The lack of public accountability for procedural lawlessness is unacceptable. Children with disabilities should be identified as young as possible and schools must be held accountable for lawful treatment of students with special needs. Children with special needs deserve as much accountability as someone in the prison system. Procedural compliance with law in special education needs to be an important public issue. There has to be a way to get public oversight in school procedural practices. We need IEP police.

The IEP Police

Parent advocacy is important. The Individuals with Disabilities Education Act (IDEA) makes the parent the child's advocate. The parent is the advocate because law makers know that school systems base their decisions about a child's needs based upon how much money is in the school budget. In the first section of the IDEA law, the text states that In IEP meetings, the parents are primarily concerned with the outcome of the child's education and the school district personnel are primarily concerned with the school's budget. The law recognizes that IEP meetings are locations where people competing interests are expected to work together and come to agreement about an appropriate education plan. However, the law also states that the parent is the only one in the IEP meeting expected to protect the child's interests. 
 
Parents need to make sure they read their rights. Parents also need to know what rules the school has to follow in administering special education. Almost every time I have reviewed a case since 1999, the school has violated procedural law in several areas of administration of special education. In fact, the failure to administer procedurally lawful special education is the cause of most conflict I confront as an advocate. Therefore, I am blogging about procedural law in special education as a first step in creating IEP Police to function as a watch dog organization for public schools. 

What to do when schools violate procedural laws? 

File a State Compliance Complaint

Anyone with an IEP needs a triennial assessment every three years because the law requires it. Triennials are also good practice to ensure a student has a meaningful IEP. I recently consulted on a case in which a high school student with Downs Syndrome had an IEP created using the last triennial assessment completed in elementary school. In this case, the student's goals had not changed 5 years. Never changing goals makes sense because goals can only be changed when new data from assessments gives the IEP team a basis for making new goals. When no new assessments are conducted, the IEP team has no data to use in making new goals. In this case, the parent brought an advocate to be the IEP Police and ensure that the school comply with procedural law. 
 
When the school does not comply with procedural law in California, parents can file a state procedural compliance complaint. Parents have the right to file this complaint and get the California Department of Education to force the school to follow procedural law. In cases where procedures were not followed and the child's IEP was not implemented, the department of education can correct the situation. For example, if the child was denied speech and language therapy for most of the school year but should have received speech services 3x per week for 30 minutes each session, these sessions need to be made up. The child has the right to those missed sessions and all pending sessions. The department of education has the ability to make the school implement the IEP and provide compensatory services. Please file a state procedural compliance complaint when the school does not follow the law.
 
Be the IEP Police for your child!!!  
 

Do You Need An Advocate? 

 
I think that advocates are critically necessary in an institutional society. I believe parents that face difficult circumstances surrounding their child's education need access to advocates for guidance, information, advice and the consulting services of a special education advocate. Parents that have access to the information, advice and guidance of an advocate are better equipped to make informed decisions for their children. 
 

Some Humor  

 
The following cartoon represents one perspective on the use of psychostimulant medication in children diagnosed with a disability. For parents facing a situation like the one represented in this cartoon, the Individuals with Disabilities Education Act makes it illegal to deny a child an education because parents will not give the child psychostimulant medication. Some parents are against medication and others consider medication an important part of treatment. At ACE, we respect the freedom of each parent to form their own opinion about the use of psychostimulant medications. 
 
 

One Path to Low Wage Labor 


The following poster is from the Women's Movement of the 1920's and was displayed at the Washington DC Smithsonian Historical Museum. This poster about child labor makes me think about the human product of modern American public schools. In some cases, the product of an American public school education is the destruction of a person's self-image and the ruin of potential. 
 
Systematic lawless administration of special education is the number one problem for students with IEPs and students needing special education intervention. If the school system would follow procedural law, then over half the conflicts in special education would not exist.  For example, I have a case where a student is in 3rd grade but reads at a 1st grade level. I was called because the child was over a year below grade level in reading. The student's mother explained that she had asked for a special education assessment early in 1st grade but nothing was done. Then, mom asked for a special education assessment early in second grade, by writing a letter, but nothing was done. I advised mom to write another letter requesting assessment and take the letter to the special education department at the distract office. Then, I advised mom to get that letter date stamped received by the district office.
 
The next thing that happened was that the mother got an assessment plan and the student was assessed. The student qualified for special education as learning disabled. By the time we got the child reading intervention, the child was two years below grade level in reading.
 
This gap between reading ability and grade level is a serious problem for this student. This student is learning about who he is, as a person, from the experience of sitting in a third grade classroom unable to read what every other kid in that class is reading. In fact, this student cannot even read the tests and quizzes handed out in class. The student failed his quizzes and tests because he can't read them. We had to attend an IEP meeting to request the accommodation that an aid or RSP teacher read all quizzes and tests to the student because the student cannot read. What does the experience of being the only non-reader in 3rd grade teach this child about himself?
 
This situation could have been prevented. Had the school assessed when the mother first requested (as required by law), the student would not be two years behind. This child's failure in 3rd grade is caused by the school's lawlessness of refusing to assess a child when the parent makes the referral for special needs assessment. The school violated child find procedural law. 
 
The worst thing about this situation is that this child is not alone. This same situation is happening to children in every district within every state across the country. Systemic school failure is a group experience caused by school personnel systematic non compliance with procedural law. 
 
So, I ask: "Can lawless administration of special education produce the same human junk represented in this poster below? There is a popular saying in New Orleans that claims: "prison's estimate their future population density based upon the rate of non-reading boys in 4th grade." Katie Sanders reports that "...the Nevada Department of Corrections..." revealed that California uses the number of non-readers in 3rd grade to estimates prison populations (http://www.politifact.com/florida/statements/2013/jul/16/kathleen-ford/kathleen-ford-says-private-prisons-use-third-grade/).  How much different is the compulsory education system for learning disabled special education students of 2017 than the factory labor system for poor children in the 1930's?
 
Many learning disabled students enter school as good human material. These students enter school feeling good about themselves. These students want to please their teachers. Then, the process of schooling teaches these students that they are failures and bad students. Children learn to see themselves as bad people. Often children come home and tell their parents "I'm stupid and no-one likes me."  The school experience starts the process of learned self-hatred and if this process is left unchecked, the school produces barely literate adults who believe their personal failure is their own fault. Through the process of systemic lawlessness, the American school system takes advantage of the weaker students within the system and produces an underclass of docile young adults prepared only for a future of low-wage labor. 
 
 

 
 Smithsonian 

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