Max R. is a fourth grader with curly brown hair, lots of freckles and a passion for soccer. He has a baby sister, loving parents and a best friend, Josh, who lives down the block. All is well, except Max doesn’t know how to read. He’s been pulled out of his classroom three times a week for special services since second grade. The school tells his parents he’s making progress. But when Max’s mother tries to get him to read Green Eggs and Ham to her, he can’t do it. Sean G. received his second in-school suspension of the semester last week for making an arguably threatening remark to the librarian of his middle school. The school sees Sean’s problem as purely disciplinary. In their view, despite his obvious intelligence, he’s an unmotivated, wise-cracking irritant. His parents see an increasingly withdrawn child with few friends. They take Sean to a psychiatrist, who has diagnosed their son with a severe mood disorder and has recommended a residential treatment program. Jane S. is three-and-a-half years old. While her development seemed normal her first year, her parents noticed that at about 18 months, her language use began to decline. She now habitually uses only one or two words. Concerned, her parents contacted her pediatrician who recommended referral to the Committee for Preschool Education. Now in the midst of evaluations, Jane’s parents are hearing words like Asperger Syndrome and Pervasive Developmental Disorder. One evaluator commented that she felt Jane would need intensive treatment that she was certain the school district did not have. In fact, a social worker told Jane’s mother there aren’t nearly enough schools for children like Jane in the entire country.
Although the foregoing situations present different issues, the parents involved are all going through similar experiences. Above all, they’re deeply worried. They are being told that their children have problems, but are not sure of the accuracy of the assessments others are making. They want to view school district personnel as allies, but are not certain that the school’s evaluations are apt and are troubled by inconsistencies among various examiners. Some parents fear stigmatization; they worry that their child will be labeled, teased, isolated or forgotten. Other parents are concerned that the schools seem to minimize the extent of their children’s struggles, and are offering what appear to be perfunctory, inadequate solutions. In darker moments, parents might wonder whether the school’s decisions are based on considerations of finances and convenience rather than on their child’s needs.
The Law on their Side Parents negotiating the educational lives of their disabled children are less alone than they may realize. In fact, the law grants to them, and their children, a wide array of rights and remedies to enable them to obtain the education to which they are entitled, regardless of their disabilities. In 1975, Congress enacted the Individuals with Disabilities Education Act (IDEA). IDEA was adopted in response to widespread discrimination against disabled children in public education, and was part of a more general trend in legislation towards prohibiting discrimination against minorities. The goal of the IDEA is twofold: to end the exclusion of disabled children from the public school system, and to provide them with the services they need in order to receive a real education. In legal parlance, the law accomplishes these goals by establishing the right of disabled children to a free, appropriate education within the public school system; in addition, they are entitled to obtain their education within the least restrictive environment that can be provided to them. More simply put, the IDEA, as well as corresponding state laws, set forth procedural safeguards and due process rules which are designed to enable parents to seek, secure and vindicate the educational rights of their children.
Taking Steps If you suspect that your child has a disability which is affecting his or her ability to learn, your first step should be to have the child evaluated. This can be done by the school district, however, in some instances, such as when a parent disagrees with the school’s findings, the parent may opt to have the child evaluated by a professional in the private sector. Once the evaluation process is completed, the parents meet with the Committee on Special Education (CSE), usually at the school district office, to determine whether the child is disabled within the meaning of the law, and consequently if the child is eligible for special education. This inquiry is sometimes phrased as whether or not the child will be “designated” or “classified”. Following the classification process, the school provides the parents and child with an Individual Educational Program (IEP). The IEP is basically a road map of where the school proposes to take the child educationally during the coming school year. It must include, among other things, measurable annual goals, benchmarks and/or short term objectives.
Managing Disputed Decisions The IDEA and state law provide parents with repeated opportunities to object to the school’s decisions regarding a child’s special education. At virtually every juncture, parents may present complaints regarding the school district’s decisions relating to the identification, evaluation or placement of their child, or regarding the provision of that child’s free, appropriate public education. One way of resolving these disputes is through mediation. This voluntary process must be conducted before a qualified and impartial mediator. When it works, mediation can be the fastest and least expensive way of resolving disputes about special education. Alternatively, parents of disabled children who disagree with a school’s decisions have a right to demand what is called a due process hearing. This is, in essence, a mini-trial before an independent hearing officer, where each side presents its point of view, usually with the assistance of expert witnesses. Once the hearing officer has rendered her or his opinion, either side may appeal to what is known as a state review officer. The decision of the state review officer may be appealed by either side to federal court. In situations which raise complicated issues, parents may elect to retain an attorney to represent them. In addition, it can be useful to have a representative who is not subject to the intense emotions parents inevitably feel about matters concerning their children. It is important to remember that, although cumbersome, the special education system is designed to enable parents to insist upon, and receive, the education to which their child is entitled, regardless of that child’s disability. Parents owe it to themselves and, of course, their children, to do everything in their power to make the system work for them.
JULIE GAUGHRAN is an attorney in Mt. Kisco who practices special education, employment discrimination, and civil rights law. (914) 666-2626.
