Friday, November 21, 2008

Two Pieces of Special Ed Case Law

From the Tacoma News-Tribune:

The Puyallup School District has won a court case involving a student whose father has been picketing the district over special-education practices.

Administrative Law Judge Cindy Burdue rejected some two dozen claims by Bernie and Denise Dalien, who alleged the district failed to meet the educational needs of their 17-year-old son, Colton, and failed to keep other students from harassing him.


Colton has several conditions including Landau Kleffner syndrome, a rare form of epilepsy affecting his ability to process sound, which in turn hinders his ability to speak and learn through verbal instruction. He can speak only in short, simple sentences and is sensitive to background noises.

Colton tests at the primary grade level in math and reading, but his parents believe he has the capacity to learn more if he received more visual instruction appropriate for his disability. Bernie Dalien recently picketed Puyallup district headquarters and various schools over special-education students picking up trash and materials, allegedly without their parents’ knowledge.
From the October 29th issue of Education Week:

The US Supreme Court last week refused to hear the appeal of a Minnesota family in a case about the burden of proof in legal disputes over special education.

The appeal came from the parent of a child with multiple disabilities who ended up in administrative proceedings over the child's services under the federal Individuals with Disabilities Education Act.

At issue was whetehr the parent or the state of Minnesota would have the burden of proof in the proceedings. In a 2005 opinion known as Schaffer v. Weast, the Supreme Court held that where state law was silent on the issue, the burden of persuasion in special education cases lies with the party who brought the case. But the justices stopped short of deciding which rule would apply in states that assign the burden of proof in such proceedings by law, such as Minnesota, which places the burden on school districts in most instances.
Students with IEPs have rights. Even when rights cost money, students still have those rights. I wonder, as the father of a daughter with multiple disabilities, whether some districts will take a closer look at the IEPs and see if those rights can't be done cheaper.

I'm starting to learn about the very nascent stages of the IEP process. My daughter turns 3 next August, which means she moves out of the Spokane County Infant-Toddler Network caseload and into the school system. In March we're going to have a transition meeting to talk about the services she's getting, and then we'll all work together to craft the IEP. She's getting physical therapy to deal with how the brain scarring has affected her balance, her physical therapist thinks the occupational therapist needs to take another look at her, and (because of her 80% hearing loss) she's pretty much a guarantee to be in speech for quite some time. My wife and I have been talking about wanting to see her go to the HOPE School in Spokane, which is a special program at WSU-Riverpoint especially for deaf and hard of hearing toddlers, but that would involve transportation, which costs, which might be something the district fights.

It's going to be interesting; I'll keep you informed along the way.


Anonymous said...

Puyallup Schools have been put on notice. They have taken advantage of some special education students lack of ability to self report what happens to them daily at school. The District may have won round one, the fight continues until justice has been served.

ColtonDad said...

Disability Discrimination within public schools
Since May 2, 2005 my wife and I have put the Puyallup School District on notice for the disturbing information that we learned from and exiting teacher and other families within the District. An example of what we learned was that our son was subjected to repeated harassment while at school that neither went unreported to us as parents or was it documented. About the same timeframe we learned that there were computer based programs that have been available for years that the District had but denied our numerous requests for advanced programs that would help our son because of his limited speech. The District took full advantage of our son’s lack of speech and his inability to self report what was happening to him on a daily basis.

Our son was moved to 10 different schools since the age of three while our two homes have been within a half block of each other. Procedural safeguards were never given or explained to us until November 2005, at that point they were never explained nor were we asked if we understood them. The District’s don’t want you to understand them because if you do you have many avenues to challenge the services and programs they offer to your child.

After our repeated and denied requests we educated ourselves on Special education law and what this District had been doing for years was in violation.

We began to use these tools to try and hold the Puyallup District accountable. We learned that the system is totally set up to benefit and protect the Districts. We first filed a Citizens Complaint with the Office of Superintendent of Public Instruction (OSPI) and the Office of Civil Rights (OCR). There are a couple problems with doing either of these. First being with the OSPI, first if you are not happy with the outcome of the OSPI investigation and if the OSPI orders corrective action against the District and the District fails to comply, parents then can file a Due Process hearing request. The problem with this is that with a Due Process request you have a two year statute of limitations and if the OSPI complaint took six months to conclude, you may not be able to include the first six months from the Citizens Complaint. So when we first learned of our rights we should have immediately filed a Due Process hearing request.

The OCR complaint was a total joke. That government agency should be on a budget chopping block. We were treated as liars and when the District staff members were questioned they were not under oath when questioned by an investigator and the Districts high profile attorney was present during questioning and we were not permitted or offered to be present. We later learned that even if staff members were under oath as they were during the Due Process hearing they will compromise their integrity to protect their job and the District’s interests.

Our case is of public record so I encourage anyone who wants to see the atrocities that my son was subjected to. He presented the District with challenges they could not handle. The District failed to educate themselves about our sons disability therefore would always place him in classes with severely disabled students that did not focus on his academic and speech needs.

Per the Individuals with Disabilities Education Act (IDEA) and a 26 year old legal case (Rowley), Districts are not obligated to provide education for your disabled student where they can maximize their academic potential even though many schools like the Puyallup School District have raised their academic expectations and standard higher than those set by the IDEA. Puyallup as many schools offer programs for the academically gifted to maximize their potential.

In closing I want to give everyone some advice.

1.Learn the Special Education Laws
2.Document every conversation with District staff members because they do. Do this through e-mail and if you have a phone conversation with them, follow it up with and e-mail detailing what was said on the phone. Print out each e-mail and back them up on your e-mail provider’s server.
3.Bring witnesses to every IEP meeting and take accurate notes and request a copy of District staff notes that were taken.
5.If violations are severe enough to constitute civil action, remember you must exhaust all administrative remedies before you can file any action. The Judge will throw it out if you have not done so.
6.Don’t wait for the District to make changes, they will not. They will drag their feet eating up your two year statute timeline.