The Last Wave

Like most Civil Libertarians, we were thrilled when the US Supreme Court recently issued its Decision in the Obergefell v. Hodges case, which finally made marriage equality the law of the land.

As professionals who are in the Civil Rights advocacy business, we were especially savoring these words of Justice Kennedy: “(t)he nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.”  Beautiful words, but we couldn’t help but wonder: when will the Civil Rights of individuals with disabilities be fully realized? Read more

Why Won’t They Stand on their Desks?

So many of us are grieving the loss of Robin Williams this week.  As an actor, he made us care about his characters by becoming them; and in so doing, he made us care about him.  As a comedian, he was an unstoppable energy that was equal parts intelligence and irreverence.

I know you’re wondering what this has to do with special education advocacy, but give me a few minutes. I’m getting there.

When I was fresh out of high school, Dead Poets Society came out.  I thought it was brilliant, and that Robin Williams’ portrayal of Mr. Keating was stunning.  Later, when the movie came out on tape (yes, tape. To watch on our VCR. Which was only slightly larger than our answering machine), we watched it incessantly at my house.  The movie spoke to so much of what I was raised to believe in:  questioning authority; the need for individuality; having courage to stand up for what’s right in the face of powerful forces which make doing so especially difficult.

In the iconic ending of the film, after being unfairly fired from his job as a teacher, Mr. Keating comes in to collect his things from his classroom.  The students, who have been pressured by the school administration and their parents to acquiesce to the plan to scapegoat Mr. Keating, sit uncomfortably by while their beloved teacher quietly packs up.  All the while, their class is being taught by one of the very administrators who orchestrated his removal.

As the pressure builds, it becomes too much for those in the class with integrity.  One by one, the students decide to show their loyalty to Mr. Keating by standing up on their desks, saying “Captain, My Captain” (a loving tribute Mr. Keating created to Walt Whitman) while the administrator shouts at them to sit down.  Robin Williams’ face as he watches this display is impossible to describe.  It encapsulates the humanity that he was able to portray unlike any other actor.  Somehow, when allowed few words, he was able to say it all with his sheer presence, energy, and reaction to others.

So what the Hell does any of this have to do with special education advocacy?

When we would watch our VCR tape of the movie in my house, my dad would say to me “Jenny, pay attention to this.  Notice that not all of the boys stand up on their desks.  That is very true to life.  There will always be people who lack the courage to stand up to authority.”  It stuck with me, and it stays with me to this day.

Almost every week I attend IEP meetings where good, honest, decent people who chose to become educators sit uncomfortably by as their administrators deny students services which those educators, in their heart of hearts, believe are necessary.  I can see it on their faces.  They want to shout out “YES, I AGREE,” but fear for their jobs.  Every once in a while, one of them will be unable to stand the pressure, and will openly side with the family; but those examples are few and far between.

I wish they knew that if they had the courage to stand up on their desks, they would be protected.  They have rights, including the right to not be fired or retaliated against for being honest about what a student requires under the IDEA.   I wish they knew that teachers staying silent about what kids with disabilities need is probably the primary obstacle to those students getting that help.  Administrators, faced with teachers who are willing to be honest “on the record,” often have no other choice than to do the right thing.

I wish those good teachers could see what those teenagers in Dead Poets Society saw:  that standing up for what is right, even shouting it from the top of your desk, is what makes them worthy of the profession to which they have been called.

Forrest Gump and The History of the IDEA
July 24, 2014
Photo property of Paramount Pictures

When we talk to parents about the history of the IDEA (Individuals with Disabilities Education Act), we often refer the to movie Forrest Gump.  Forrest, portrayed by Tom Hanks, is a child in the 1950’s with a low IQ and leg braces.  In the movie, Forrest is prohibited from attending his public school.  His mother, portrayed by Sally Field, meets with the principal who agrees to enroll Forrest in exchange for sexual favors with her. While this movie is fiction, it accurately depicts a time in history when students with disabilities were legally turned away from the schoolhouse doors.

Riding the wave of the civil rights movement of the 1950’s and 60’s, parents of children with disabilities were fighting to get their children equal access to education.  Unbelievably, as recently as 1970, public schools in the United States only educated one in five children with disabilities; literally millions of children were turned away from school.  In 1975, Congress enacted the Education for All Handicapped Children Act (Public Law 94-142), which was designed to support states and localities in protecting the rights of, meeting the individual needs of, and improving the results for infants, toddlers, children, and youth with disabilities and their families.  States who “opted in” to the funding attached to the federal law agree to follow the mandates contained in it; all States have chosen to accept the federal funding and are therefore bound by its procedural and substantive requirements.  This landmark law was amended by President Bill Clinton in 1997 and became the Individuals with Disabilities Education Act (IDEA).

Circumstances for children with disabilities before the enactment of Public Law 94-142 were grim. Too many individuals lived in state institutions for persons with mental illness and intellectual disabilities.  For example, In 1967, state institutions were homes for nearly 200,000 persons with significant disabilities. Many of these restrictive settings provided minimal food, clothing, and shelter. Too often, persons with disabilities were merely accommodated rather than assessed, educated, and rehabilitated.

In the 39 years since the passage of Public Law 94-142, significant progress has been made toward meeting major national goals for developing and implementing effective programs and services for early intervention, special education, and related services.

To learn more about the history of the IDEA:


Photo property of Paramount Pictures

No Days From Snow Days & Other Acts of Nature

We are often asked here on the East Coast if the instruction lost from snow days for students who receive special education should be made up by the school district. While snow days certainly don’t happen in all parts of the country, there are lessons to be learned for other cancellations of school due to weather events or unforeseen closures of school.  The question really is this: if school is cancelled for everyone, regardless of the reason, should lost instructional time for student who have IEP’s (Individualized Education Programs) be made up?

Let’s break it down.  Here in Connecticut, for example, too many snow days cause many school districts to go under the number of instructional days required by the State.  Each state has its own number of required instructional days.  When this happens, school districts are forced to borrow days back from the winter or spring vacations or add them onto the end of the school year.  In this case, everyone’s snow days are being made up and there should be no issue for students who receive special education.

But what about snow days that aren’t made up for everyone?  Students with disabilities are entitled to receive the same benefits of their school system that all students receive, otherwise it would be discriminatory.  In a situation in which ALL students have missed school, the child with a disability is being treated the same as his or her non-disabled peers. In fact, there is no mention of make up days for student’s who have IEPs anywhere in the IDEA (Individuals with Disabilities Education Act).

That said, the loss of instructional time can certainly have a different impact on a student who has an IEP, so I suppose one could make the argument that the loss of instructional time could result in a denial of FAPE (Free Appropriate Public Education).  If the loss of instructional time truly resulted in the denial of FAPE, then the reasonable request would be to ask for compensatory education.  Compensatory education is truly make-up instructional time which “compensates” for a loss.  If this is the route that you choose as a parent, proceed with caution as the denial of FAPE must be demonstrated and documented.

Our analysis boils down to this: generally speaking, school cancellation which effects all students equally would be hard to argue as having a discriminatory effect on students with disabilities.  However, whether the impact of significant absences from school would pose great harm to a student with a disability in a way which would impact that child’s IEP must be reviewed, as with all IEP considerations, on an individual basis, and based on that child’s unique needs.

The Tip of the Iceberg

Published on June 16, 2013 by Jennifer Laviano

It’s been a fascinating several months here in Connecticut, as we have watched events unfold in the special education community in Darien. The coverage has been wide locally, but if you don’t want to read it all, here’s the upshot: the Special Education Director in this small, affluent town in lower Fairfield County (itself small and largely affluent), new to the position in the 2012-2013 school year, distributed “training materials” to educators in the community via memos and, yes, a Power Point presentation. So what’s wrong with that? Well, they included numerous misrepresentations on what an educator and a district’s obligations are under the law, and blatantly instructed the educators that they were not to disagree with administration during IEP meetings. Under the guise of asking educators to present a “united front” during IEP meetings, the Director effectively thwarted the legally-required open exchange of ideas which is supposed to be the heart of an IEP meeting.

“We must present a united front in IEP meetings” is code for “don’t disagree with the administration or make recommendations which might cost us money.”

Thanks to the courage of several parents who were rightly outraged by this directive (among the many, MANY other violations of the federal special education law included in these documents and countless examples of individual violations as well as systemic), and the steadfast representation of their rights by Mystic Attorney Andrew Feinstein, families joined forces and filed a Complaint with the Connecticut State Department of Education. The Complaint ultimately led to an investigation, which culminated last week in an open forum for parents to tell the State about their experiences in Darien. This EXCELLENT Editorial by the Darien Times, which has been remarkably committed to getting the truth of this situation despite some fairly strong local opposition (some of which has been truly vile via commentary online) summarizes how that meeting went.

When I read the Darien Times Editorial, I was stunned. I wish I could say it was because I was shocked by the stories the parents shared. That wasn’t it. What had stricken me was that the Editors got it! They GOT that this isn’t about a few disgruntled families. This is the “tip of an iceberg.” I particularly appreciated their reference to the disparity between Darien’s “internal charge” of providing a top notch education for its students, while defending its failures for students with disabilities as reasonable under the IDEA’s “appropriate” standard. For those of you who’ve been following my blog since the beginning, you know I’ve been disgusted by that hypocrisy in public schools throughout the State (and country) for years!

The Editorial suggests that the families who’ve spoken out in Darien represent a “tip of an iceberg” in Darien. But I’ve got news for them.  It’s not just Darien.

The scary thing to most of us who have been following this is that this type of administrative pressure isn’t uncommon; we know it happens all of the time, all over the country.  Teachers approach me after presentations I give, and on a few occasions have even followed me down a hallway after an IEP meeting to whisper “thank you” to me for getting the district to approve the support they needed, but couldn’t get without the pressure of the parents hiring a lawyer. Teachers email me or post comments to this blog all of the time, saying that they are conflicted because a student in their charge needs more than the school district will allow them to recommend, and they feel horrible about it.  Sometimes they’re subtly being told “you know who pays your check.”  Other times, it’s less subtle, and blatantly discriminatory.  I usually remind them that they, too, have rights, and they include not being retaliated against for speaking up about what the IDEA requires for a student and whether they are receiving it.

Even if I didn’t have the direct evidence of how some educators feel the administrative pressure not to refer, evaluate, identify, or properly service students with disabilities under the IDEA, I see it on their faces.  In hundreds and hundreds of meetings where I am expressing the Parents’ concerns about the inappropriate program their child is receiving, and some of the teachers can’t meet my eye, or the parents’.  Or I get the nodded head, or a wink, or something is said by an educator in a way that tells me “please ask me this question right now because the answer to it will get the kid what he needs but I just can’t volunteer it!”

The thing that’s unusual about what happened in Darien is that the practice to violate the IDEA was written down, and parents got their hands on the proof.

So, perhaps what happened in Darien is what needs to happen everywhere.  Parents need to organize, and tell their stories.  It has to be made clear to the good-hearted people of so many communities, the people like the Editors at the Darien Times, that this isn’t the exception; in many towns, it’s often the rule.  It’s time that administrators who look at special education as an expensive nuisance, rather than as an essential Civil Right designed to ensure that students with disabilities become adults with skills, are held accountable.

IEEs: Do You Have to Explain Why You Disagree?
February 14, 2011

As I have covered on several occasions in the past, a parent’s right to an Independent Education Evaluation (IEE) under the IDEA is, in my view, one of the strongest available under the special education laws.  This opportunity to get a “second opinion” on the school district’s evaluations is, in many cases, the difference between positive outcomes and disaster.

The first step towards obtaining an IEE is to disagree with the school district’s testing.

However, what if you disagree with the testing, but you’re not quite sure why?  Or perhaps there are several things with which you disagree?  Or maybe you have a sense of what you disagree with, but you don’t have the “proper” terminology to explain it.

Do you have to be able to articulate WHY you disagree with the school’s evaluation in order to trigger your right to an IEE?  In a word, no.

The school district is legally permitted to ask you why you disagree, but they can not require an answer.  Nor can they delay a response if you don’t provide a reason.  Please read this important provision of the statute.

I suggest you print that provision out and take it with you to the IEP meeting at which you intend to ask for an IEE.  Heck, maybe even laminate it!

December 22, 2010

Sometimes it’s difficult to know what to to be happy about as an attorney who represents children with disabilities.

As you can imagine, the facts that support a “really great special education case” are, by definition, at best unpleasant, and at worst horrific.

It’s an odd feeling, reviewing a child’s special education records.  When I find procedural violations (sadly, this occurs more often than not), I get a little excited.  Why?  Because I know that these violations of IDEA have probably led to the very deprivation of appropriate special education programming which has brought the parents to my office.  It gives me the ability to verify my client’s claims.  More importantly, I know that clear violations of the IDEA will give me the leverage I need to convince the school district’s attorney that my client requires more, better, or different services.

But that doesn’t mean I’m happy about it.

So, this all gets to the point of this piece, which is, quite simply this:

DO NOT throw out any paperwork that documents your communications with your school district.

You’d be very surprised at what you have that is remotely related to your child’s education, special education, or the possibility of special education, which might prove useful one day.

I recognize this is antithetical to the current trends of accumulating and keeping fewer things.  I get it.  I watch Hoarders too.  But I’m not here to arbiter whether you should hold on to your uncle’s crappy golf clubs, or your mother’s coats.  I’m talking about documentation of the communications between you and your child’s school district.

I have actually had cases which have been won on the evidence provided by just one piece of paper, saved by a parent, many years later.

So, if you’re trying to free up space in the garage, perhaps it’s time to part with the cocktail dress you swear you’ll fit into again one day…but please don’t toss the letter you wrote Sally’s teacher in 2nd grade asking if maybe she should be tested.

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