Due Process Rules Lock Out Remedies for Kids with Disabilities

by Cate in Illinois,
Mother From Hell 2

I have come to a difficult conclusion as of late. It is not enough for us to know what the laws are when we have no access to the court to see them enforced. It can cost $5,000 to $10,000 before you even get to Due Process. If you settle, or if they capitulate before Due Process, the family is left to eat all the legal costs at this time. (Based on a horrible decision from the Supreme Court in 2001 about fair housing, Buckhannon.)

About two thirds of the hearing officers in Illinois find in favor of the schools regardless of the evidence. So to obtain an appropriate education for your child (to which Federal law entitles them), you have to be prepared to begin a new contract with your lawyer (for what will cost as much or probably more than the Due Process) in the state or federal court.

Federal legislators have left us to police the schools ourselves without offering training. Fine, we are finally getting ourselves organized to be trained. That is important, but it is not enough. It is as though we have been marked to be the police cars on this Special Education Highway that is filled with tanks of school administrators. It is not enough that Congress has created rules and signs to ensure our children receive an appropriate education.

Most districts treat our children's differences from the "average" child as something to be tolerated at best. The administrator's job it to serve the entire school system. Our children are only a small part of the system, so they warrant no protection or service. School boards are elected mostly by those whose children whose needs are not so different. School boards employee the administrators. That relationship will not change. The rest of the community has a religious-like faith in the schools. We are the oddballs in town because we cannot share that faith. Those things will not change.

Even knowing the laws and pulling the tanks over with a warning about a ticket means nothing unless we can access the courts. It is like asking a state highway patrol officer to do his job without any access to the courts. How many people would tear up the warning ticket or a regular ticket if it meant no more than paper? How many people would voluntarily respect a ticket that is unrelated to the court process? How many people would pull over voluntarily? How many people would pay any attention to the highway patrol at all? It is untenable as a functioning process without access to the courts.

We cannot afford to access Due Process as needed under these circumstances. We need to change the system and change ourselves. It is absolutely true that we need to know the laws, because we cannot expect school administrators to abide by them with any consistency. Clearly there are far too many who have no respect for American Law of its own accord.

It is we, the middle and lower economic classes, who fill the public schools with our children. As long as we don't commit a crime, we are not expected to have legal needs of any remarkable cost. The rich and the businesses are those typically found in our civil courts. Thus, we are the classes barred from the court's protection by the costs. Of course, most of those in our economic demographic are unaware of the fact that families of children with special needs have a myriad of costs that add up to staggering amounts of time and money per month. We are a weird subculture within the larger demographic who has less disposable income than anyone suspects. We need to get our neighbors, school boards, legislators, law schools and state bars to understand we need their help and can pay them something for it.

However, we cannot cough up $10,000 on a regular basis. Most of us cannot scrounge up $10,000 as needed either. However, we have to access the courts to protect our children. This is a democracy. Therefore, we can create change.

Proposal for change

First, we need to organize to require state bars to require knowledge of the basics of Special Education Laws on state bar exams. It needs to be required to maintain a license. We need more lawyers who can handle this in as cost effective a manner as a will. Currently, there are very, very few lawyers who understand it at all.

Second, there is a pilot program being run out of the State of Maryland. They have such a backlog of domestic cases that they are allowing students from two law schools to assist regular people to come before the courts "Pro Se". Pro Se is pretty frightening when you find out what is means. The courts have become a game of strategy with all their own rules regardless of the content.

Going before the courts without a lawyer, Pro Se, is a ridiculous idea for most of us. It is like being a really talented ball player who can throw a basket from almost anywhere on the court. However, if that player does not know the rules of the game (different rules for different courts like local, high school, college and professional basketball), he is going to lose every game very badly. You have to know the rules and the strategies to have any hope of winning. We need programs like the one in Maryland for Special Education in every state.

Third, we need a means to learn enough about the rules and strategies to couple with our knowledge of IDEA law to play the game ourselves if need be. We need internet training programs from places like Concordia University etc; to allow us to learn with financing plans and/or scholarships etc; to teach us enough of the basics to survive in court with any hope of getting what Congress promised our children. (Nice thing about an internet course is that most are available regardless of what shift you work.) We need local courses to do this from Community Colleges and Universities. Some of us may be able to afford a few thousand to protect our children ourselves in the courts.

Why we need change

As things stand now, a school can punish a family with a child who has special needs and dares to stand up to their power by failing to do anything but capitulate before Due Process. (If you know enough about law and bureaucracy to get that far.) They can wipe us out financially and return to practices that we recognize hurt our children and deny what Congress provided for them. Who can go back to Due Process the way it is set up now?

I pray that the Supreme Court is hearing the New York case to protect our children. It is a case that will determine if the school has the right to prove that its program is appropriate by taking the time to implement it and risk huge damage to our children.

Administrators will implement whatever they please regardless of the potential damage for the same reason they stall in providing any services: stalling is a cost savings. I wonder if the Supreme Court members even know parents who have sat through IEP meetings where the teachers all follow the administrator's lead for fear of later retaliation that includes losing their jobs.

A lot of "teams" out here are teams in name only. Our children are already starting with some inherent "damage" to some ability relating to their academic prowess. If the Supreme Court thinks all school administrators will ensure our children's rights to an appropriate education over their budgets and school boards' expectations, they have become utterly removed from our realities. There would have been no need for IDEA in the first place if this faith in local educators/administrators were true in any consistent sense for our children.

The world comes to us as individuals, but the need for IDEA exists because some of the individuals who are supposed to meet our children's educational needs so thoroughly fail in their duty to do so. Our faith in the educational system must be earned because most of us have seen our children failed by the school and been burned trying to make changes. When there are individuals who work to serve our children along with the rest of the school population, we applaud and appreciate them. However, for some, their sense of individual morality evaporates when part of the larger group of administration. It is as though they were masked and no longer responsible for their choices when they are part of a larger group.

The same is true of some teachers on an IEP team. We see this as parents over and over again. There are studies about group and corporate behavior and how it totally differs from what individuals who participate in it would do if the choices were tied to individual morality. Sadly, there are many administrators who could be studied the same way to verify the same behavior that we see with a sad frequency. They bear no personal sense of responsibility toward our children. Only we do.

I am worried because the Supreme Court has already decided that when we pay for an expert to testify as to the inappropriateness of the school's plan and/or the appropriateness of our proposal for our child's education, they have already stuck our families with the expenses of those experts we need. That is not something the school district is obligated to pay even if we win the case now. To pay all the experts who will be needed to scope out the damage done to each child in each case could raise the cost of the individual case even far higher than its current expenses. Most Due Process cases in Illinois do not obligate the district to pay the family's legal expenses when we win.

My latest lesson (learned the hard way), is that you should always write on the supplement that it is a "Supplement to the IEP" and have anyone who participated in its making sign it as such with the date. I thought I was standing on two legs and am now looking for crutches since the content of the document is accurate, but it was filed as something else.

What is clear is that my husband and I are the only people who will stand up for my son, and the district administration assumes no responsibility for past harm or harm they are about to create. I will have to show it is part of a pattern of lies. Of course, there have been so many lies that there are plenty of those upon which to rebuild the case.

The first time you read and grasp this epistle, the task may seem daunting. However, there is no demographic better trained for tenacity than the parents of children with special needs. After all, our children have trained us for tenacity. Their needs are constant. So let's keep moving and include a viable means of access to the courts on our list of things to do in this area.

I may have to bite the next person who tells me to "just bite the bullet" whenever my child's rights need the protection of a lawyer with all the costs it entails. Maybe I'll see if he'll pay all the extra expenses in our family first, and then check my "disposable" income to see if I can afford a bullet to bite.

PS. If anyone from this group is going to the Empowerment for Parents thing in Virginia, please take this with you. Knowledge of Special Education law is not enough. It is a valuable part of the beginning, but not enough to create a system of checks and balances in power that precludes abuse.