By Daniel Hoover, PhD, ABPP, Mallory Legg, Esq., and Maureen van Stone, Esq., MS

Kennedy Krieger Institute, Baltimore MD

INTRODUCTION AND BACKGROUND

Research shows that traumatic experiences can impact a child’s cognitive, social-emotional, and academic development. Traumatic experiences can lead to attention problems, lower cognitive functioning, decreased school attendance, repeated grades, achievement problems, challenging behaviors, low academic performance, and low reading ability. Students who experience trauma may withdraw from peers, distrust or disconnect from adults, become more anxious or nervous, exhibit somatic symptoms, exhibit changes in behaviors, and experience a decline in school performance. 

It is important to address the effects of traumatic experiences and trauma-related symptoms on a child through an IEP, identify federal eligibility categories children who have experienced trauma may be eligible under, and outline supports and services that help a child access their education to better understand the role that trauma plays in a child’s development and academic performance, and to better understand what tools can be utilized to address the impacts of trauma through an IEP.

TRAUMA AND STUDENTS WITH IEPS

Within the United States, recent research confirms that 60-70% of children and adolescents are exposed to potentially traumatic experiences (PTEs) by age 17. PTEs take the form of maltreatment (e.g., physical, sexual, emotional abuse and neglect), witnessing or being a victim of community violence, bullying, traumatic loss or death of a loved one, and other frightening and overwhelming events. Such traumas have been described as a national epidemic and perhaps the most impactful public health concern of our time. From a mental health standpoint, PTEs may lead to crippling psychiatric syndromes such as posttraumatic stress disorder (PTSD), depression, anxiety, and others. But many children and adolescents do not develop serious mental health concerns after such events, and the onset of PTSD is relatively infrequent. 

It is essential to define the word “trauma” as clearly as possible, given its many connotations in public discourse. The DSM-5 criteria for trauma leading to PTSD necessitates “exposure to actual or threatened death, serious injury, or sexual violence” encountered either personally or through learning of details indirectly.” For the purpose of this paper, we suggest the United States Substance Abuse and Mental Health Administration (SAMSA) definition that is broadly accepted as being applicable to children’s traumatic stressors: “Trauma results from an event, series of events, or set of circumstances experienced by an individual as physically or emotionally harmful or life threatening with lasting adverse effects on the individual’s functioning and mental, physical, social, emotional, or spiritual well-being.”  

A key marker for whether an experience can be considered “traumatic” is whether the experience directly causes symptoms or measurable effects in a child or adolescent’s functioning and well-being. The neuroscience of trauma describes a “flight, fight, or freeze” reaction to severely stressful or life-threatening occurrences which are deeply rooted in the human brain. Traumatic exposures and reminders lead to a cascade of signals from the mid-brain or alarm-sensitive regions. Chronic overstimulation of the sympathetic nervous system that occurs in repeated trauma leads to long-term negative effects on memory, concentration, emotional, and behavior regulation. The emotional and behavioral outcomes may include one or more of the following: (a) intrusive and disruptive memories of the traumatic event(s); (b) avoidance of people, places, or other reminders of the traumatic event(s); (c) a generally over-aroused state resulting in overactivity, risk taking, anger or rage; (d) negative emotion, sadness, depression and anxiety; and (e) dissociation-- “zoning out” or numbing feelings such that the child may be in their own world or not attuned to surroundings. If the child or adolescent has experienced early and longstanding abuse, neglect, or violence, these reactions can set the stage for developmental trauma that disrupts learning, interpersonal attachments, and self-concept. As trauma impacts children and adolescents in multiple ways, it can manifest in an array of psychiatric diagnoses in addition to PTSD. These may include oppositional defiant disorder, generalized anxiety disorder, depressive and other mood disorders, learning and neurodevelopmental disorders, and others.

When children and adolescents are traumatized by events, attention, learning, and behavior in the classroom may be significantly compromised. For example, the student preoccupied with a flood of negative memories or exerting constant effort to avoid or manage feelings associated with traumas will be less available for learning. The traumatized student who is quick to angry flare-ups may be responding to an internalized sense of distrust or fear of adults. These difficulties require careful analysis of the sources of the student’s problem, which may or may not be a result of trauma reactions. 

IEP accommodations for a student with trauma should be based on an assessment of specific traumatic events in the child’s life, combined with known effects, diagnoses, or symptoms that are observed to co-occur or arise from the traumatic event(s). This will allow the student, family, and team to make specific plans for addressing the individual student’s needs. 

Students affected by trauma thrive when schools provide:

Consistency and predictability

Strong relationships with trusted adults

Flexibility without lowering expectations

Access to support throughout the day

Trauma-informed IEPs don’t just address behavior—they recognize the whole child. When educators understand the “why” behind a student’s struggles, they can replace frustration with empathy and create pathways for real growth.

Trauma doesn’t define a student—but how schools respond to it can shape their future. Thoughtful, individualized, and compassionate IEPs can be the difference between a child falling behind and one who begins to heal, learn, and succeed.

Click here to Read the full 2026 COPAA Conference Paper 

Why We Must Protect IDEA—and What Eleven States Get Right About Helping Kids with Dyslexia

Laura Kaloi, COPAA Federal Policy Advisor

Families across the country are pushing for stronger support for students with Dyslexia—and for good reason. Early identification and intervention change lives. But not all policy proposals help move us in the right direction. Some could actually take us backwards.

As Congress considers the 21st Century Dyslexia Act (S.3010/H.R. 5769), first introduced in 2022 and now reintroduced in October, many in the disability and education communities are deeply concerned. Not because we oppose helping children with dyslexia—quite the opposite. We want strong, science-based practices that get kids the support they need earlier, not later. 

One major concern with the current proposal is that this bill risks reopening the Individuals with Disabilities Education Act (IDEA), the foundational civil-rights law that protects more than 7 million students (ages 5-21) nationwide. Once IDEA is opened, lawmakers can propose any number of amendments, good or bad. And in the current political climate, we believe that major protections could be weakened. Congress permanently authorized Part B of IDEA to protect the PreK-12 sections of the law from any political forces that may jeopardize the civil rights and education protections that children and families need. With all of the efforts led by the Administration that intend to undermine accountability for education funding and have created instability and chaos for our most vulnerable families, this is not the time to reopen the nation’s special education law.

There are also serious issues with the specifics of the bill. While we agree that Dyslexia should be named in a students Individualized Education Program (IEP) -and we know that too many schools refuse to do so- there is no need to amend IDEA to fix this. A letter from the Secretary of Education could easily clarify for states and districts that Dyslexia is currently named in the law -as a Specific Learning Disability- and therefore, once a child is diagnosed with Dyslexia, it can absolutely be named in the child’s IEP. 

Next, and as COPAA has pointed out with national partners in communications with the bill sponsors, we are deeply concerned about provisions that would amend IDEA in ways that take us backward and not forward. In fact, the bill proposes to add a requirement that IQ testing be added back where current law allows states to use IQ but does not require it. The current option that allows states and districts to use or not use IQ as a means to determine the existence of Dyslexia under IDEA means that in at least 11 states, students are flagged for early screening, intervention, and reading supports when they are not gaining early reading skills or reading at grade level. In all other states it remains optional to use IQ testing to determine if Dyslexia exists. In a climate where “let the states decide” prevails, the current IDEA law absolutely supports this.

The Problem With the Old System: “Wait to Fail”

To understand what it means to add IQ testing back as a requirement, it helps to know how Dyslexia identification used to work.

Prior to 2004, IDEA required schools to use the IQ-achievement discrepancy model. Under this model, a child could not be identified with Dyslexia unless they were performing far below grade level and also had an IQ high enough to suggest they should be functioning at average or above average as compared to their peers. In most states, schools required two full years of falling behind before offering help. 

We still call this the “wait-to-fail” model—and that’s exactly what it is.

Under the IQ Discrepancy or “wait-to-fail” model this means:

• children do not get educational support when early signs appeared

• schools can withhold intervention until the child shows significant academic damage

• families feel helpless as we watch our child struggle.

I know this firsthand. My own child was harmed by this requirement because my state refused to abandon the discrepancy model until the late 2000s. For several years we were told our child was “smart enough” but had not yet fallen “far enough behind” to qualify for help—despite straightforward and diagnosable signs of Dyslexia.

My story is far too common.

Why IQ Testing Isn’t the Answer

There are additional problems with relying on IQ tests for Dyslexia identification:

1. They’re not designed for this purpose—and they’re inequitable.

Most IQ tests were normed on White, middle-and-upper-class children, and decades of research show they can be culturally biased. They also miss Dyslexic strengths like creativity, big-picture thinking, and emotional intelligence, which aren't fully captured by standard tests but are crucial aspects of intelligence. 

2. They burden schools and delay evaluations.

In most districts, only certified school psychologists can administer IQ tests, which means the school staff expertise, cost and workload required when IQ testing is required only adds to the pressure and expense the schools face. For families, it can be anguishing to wait for months for any answers or support. 

Thankfully, at least eleven states have opted to take up IDEA’s flexibility, and they no longer require use of the IQ discrepancy model. There are also states who let districts decide whether or how to use IQ testing as part of an evaluation [but do not solely rely upon it] to determine if a child has Dyslexia. 

For example, in 2017, Maine adopted a regulation that still allows IQ tests to be part of an evaluation—but wisely does not require them and does not allow IQ testing to be the deciding factor.

This approach is what current law intends. It lets school teams—including parents—use a complete, evidence-based set of tools to determine:

• whether a child has dyslexia or another learning disability

• what interventions and supports they need

• how to provide help without waiting for years of academic decline

Because of this shift, more Maine children now receive support earlier—when it can make the biggest difference.

Why This Matters Now

Some supporters of the 21st  Century Dyslexia Act say the proposals will strengthen Dyslexia identification. But as the bill is currently written, it risks mandating outdated practices—which many states have wisely moved away from. And by reopening IDEA, it opens the door to unrelated changes that could weaken essential civil rights protections, including student access to the Least Restrictive Environment (LRE) and their full access to due process.

For students with disabilities, including those with Dyslexia, the stakes couldn’t be higher.

That’s why we are urging all lawmakers to keep IDEA intact. We do not encourage support for this bill. The law already allows and encourages a strong, evidence-based approach grounded in early intervention, fairness, and flexibility to identify the existence of Dyslexia. We must maintain the current flexible approach and help infuse schools and districts with the resources they need to provide early screening, intervention, and identification for any child struggling to learn to read. We must not support policies that move us backward and away from this important goal.

If you are a parent, educator, or advocate who cares about early identification and strong civil-rights protections for children with disabilities, thank you for standing with us.

Read more: The Consortium for Constituents with Disabilities –a national disability coalition that includes COPAA, dyslexia experts, school psychologists, educators, and parents—has raised these and other issues with sponsors of the 21st Century Dyslexia Act. There are citations to current research that continue to support our position to protect current requirements in determining Dyslexia under IDEA.

The Legal Structure of the Firm

The Pros and Cons of Having a Physical v. Virtual Office

• Claims involving bodily injury or property damage would be covered by general liability insurance.
• Cyber liability insurance would cover claims involving cyber attacks, data breaches, cyber extortion, etc.
• Claims involving employee rights are covered by employment practices liability insurance.
• Workers compensation insurance protects against claims involving injuries or illness of your employees/workers while performing work related tasks.
• Umbrella coverage will pickup the excess not covered by other policies, and is often a good value for the cost.
• Professional liability policies protect against claims of incorrect advice, misrepresentation, negligence, etc.
• Any lawyer should consider the need for professional liability insurance to protect against legal malpractice claims. Professional liability coverage may be required in your jurisdiction,65 or you may be required to disclose the fact that you do not carry such insurance to your clients. 66 Non-lawyers may also purchase policies to cover professional liability claims – errors and omissions insurance. Even meritless claims for malpractice/professional liability may be expensive to defend against. Clients may bring suits for malpractice to prevent or respond to a fees collection suit. Liability insurance applications will frequently require you to report how often you initiate a suit for non-payment of fees. One way to avoid such liability nuisance suits is to include a fee arbitration and mediation clause in your fee agreement. In some jurisdictions, such arbitration and/or mediation of fees is required.
• Professional liability insurance covers the costs associated with claims of malpractice, including legal fees, settlements, court judgements, etc.
• Professional liability policies are generally written on a claims made and reported basis within a specific time frame, as opposed to an occurrence policy which protects for a lifetime. That is, on a claims made policy, it is not the policy that was in place when the alleged error was made that is responsible, but the policy in place at the time the claim is reported. Policies can be written to cover all acts since the beginning of your firm, or “prior acts” dates may limit coverage to shorter time periods. Be careful when changing policies as switching between claims made and occurrence policies could lead to a lack of coverage even if you had policies covering all time periods (e.g. the act at issue occurred in 2022 when you had a claims made policy in effect, but the claim was not made until 2023 when you had an occurrence based policy in effect).
• Extended Reporting Period (“Tail”) coverage can be purchased to provide coverage after the claims made policy period ends.
• Policies can provide coverage for defense costs inside the limits of liability or outside. If you choose defense inside, the expenses of defending the claim will be deducted from the available limit of liability and will reduce the amount available to pay the actual claim. This feature may be self-consuming, and expenses may be charged against the policy even before a lawyer is assigned to the claim, and is designed to encourage early settlement of claims.
• Defense outside means that the costs of defense are in addition to the liability limits.

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INTRODUCTION

Special education matters all deal with the interests of students who are typically (though not always) minors. This means that as attorneys we are typically entering into attorney-client retainer agreements with their parents. Even when students have reached the age of majority, because of the compensatory or reimbursement claims often present in special education cases, there are often instances where adult students are signing over educational rights to their parents to oversee their special education litigation matters.1 So for the purposes of this paper, we will consider ethical questions in representation as it relates to attorney-client relationships with the parents of Individuals with Disabilities Education Act (IDEA) eligible students.

In almost all cases, IDEA-eligible minors will have more than one adult with legal rights and responsibilities to them. Where an attorney agrees to represent more than one client in the same matter, there is often, if not always, a potential that the interests of the attorney’s multiple clients may conflict with each other. In special education cases this can occur when an attorney is representing two parents who initially agree on the educational goals of the child but who then, for one reason or another, have conflicting viewpoints as representation continues.

PRACTICE TIP: Be sure to outline the duties you have to your client and also outline that representation may be terminated should you or the Client(s) be unable to continue to meet these obligations to each other. Different attorneys may elect to establish their attorney-client relationship in different ways.

Ultimately, when you evaluated how to set up your agreement, you should consider the personalities of the parties you’re trying to work with, and the legal parental rights in play given the particular situation. For example, it is not uncommon to encounter both married parents who are jointly seeking representation on behalf of their shared student and single or foster parent(s) who are seeking representation independent of the student’s biological parent(s).2 How one chooses to engage with these different types of scenarios should be an ongoing and fluid consideration that is hashed out with each and every representation agreement you enter into. For example, when working with married couples, does it make sense to create a retainer agreement between the Law Firm and one parent, or both parents? When might one elect to have two clients versus one? What factors should you consider when making that determination for married parents? For parents who are no longer (or never were) together, can you represent one parent and not the other? This question likely depends on the type of parental rights that have been set out in any custody agreement reached as part of a family law matter. Similarly, if you have foster parents, their rights and responsibilities to IDEA-eligible students are supposed to be the same as biological parents, but there may be factors that should be hashed out prior to engagement so as to protect the Law Firm should there be any changes in the student’s legal status as it relates to guardianship.

Because of the various types of difficult scenarios that can arise when the adults in a child’s life are not on the same page, it is important that Law Firms are conscientious about describing at the outset the rights and responsibilities between the Law Firm and all adults (likely all “clients”) in any representation agreement. This article addresses some of the considerations you should be thinking about to make sure you are meeting your ethical obligations when it comes to working with parents of IDEA eligible students through special education matters. The attorney’s ethical obligations in such scenarios are governed by the original engagement agreement, the terms of any informed written consent obtained, and the ABA Model Rules of Professional Conduct governing conflicts of interest and withdrawal from representation. We also discuss several ethical issues that may arise when representing parents in special education matters and how those issues may or may not be handled.

ENGAGEMENT AGREEMENT

  There is a risk that a potential conflict may develop into an actual conflict during representation. In that case, the attorney may no longer be able to continue with the joint representation of both parents. In this case, your initial letter of engagement, if drafted to address these issues, would govern how any disputes are handled. One solution is to outline in the engagement letter what will occur if a conflict of interest develops between the parents. There are a few possible options. One option in the event an actual conflict develops is for the attorney to withdraw from representation of all parties entirely. Another option is for the attorney to continue representing one parent while the others engage new counsel. Yet another option is that the parents agree that the attorney may exercise discretion as to which party they will continue to represent in the event of a conflict. Even when these options are agreed, the continued representation of one joint client adverse to another may be prohibited, depending on the circumstances giving rise to the conflict. Example: The parties originally entered into an agreement that the attorney would represent both PARENTS in trying to obtain an assessment for the STUDENT, represent them at IEP meetings, and represent them in navigating the special education process, and that if there was a disagreement among the PARENTS you would still represent the FATHER. At the start, both PARENTS were on the same page regarding determining STUDENT’S needs, and determining what STUDENT was entitled to from the LEA. But if during the course of those initial assessments MOTHER and FATHER vehemently disagree over what should happen given the STUDENT’S identified learning profile, the information you gleaned during the early stages of assessment and IEP representation may now be adverse to the interests of MOTHER. Even though the parties said you would continue to represent just the FATHER, once their interests are not only unaligned but now adverse to each other, representing FATHER per your earlier agreement is likely not a conflict the parties could waive. Sometimes competing interests cannot be reconciled, in which case withdrawal from the representation may be required. Under ABA Model Rules of Professional Conduct 1.16 withdrawal is mandatory if continued representation would violate the Rules of Professional Conduct, including rules governing conflicts of interest. If withdrawal from representation of one or more of the multiple clients is required, an attorney must take reasonable steps to protect a client’s interest, including giving the client or clients reasonable notice to permit the client to find other counsel. In addition, the attorney must obtain the consent of the tribunal, your state hearing office or court of competent jurisdiction, to withdraw if your clients have already filed for due process or have pending litigation. In such a case, the attorney would need to file a motion to withdraw from representation with the tribunal. Attorneys should consider drafting a letter of engagement at the onset of representation. As part of your Letters of Engagement, outline the steps you will (and will not) take as part of each IDEA representation agreement, as well as what types of remedies you will seek on behalf of the parents. Include a requirement that if at any point during the representation the parents no longer want the elements outlined in the Letter of Engagement, they must notify the attorney so that you can explore if ongoing representation is feasible. Without this kind of agreement in place at the outset of representation with understood terms, which outlines that the retainer agreement may be terminated should a conflict of interest arise, a Law Firm could find itself in a situation whereby a conflict of interest exists without a clear understanding by all parties about what must happen.

INFORMED WRITTEN CONSENT

  Informed consent is a person's agreement to a proposed course of action after the lawyer has explained the relevant circumstances and material risks. ABA Model Rule 1.0(b) defines “informed consent, confirmed in writing” as a written confirmation of an oral informed consent, or a writing provided by the attorney to the client. When an attorney agrees to represent more than one client, as could be the case with two parents, there is always the possibility that the interest of the attorney’s multiple clients may conflict with each other. This could occur in a number of ways in a special education case. The lawyer’s ethical obligations in such scenarios are governed by the original engagement agreement, the terms of any informed written consent obtained, and the ABA Model Rules of Rules of Professional Conduct. Whether addressed in the initial engagement agreement between an attorney and clients or in concurrent separate written conflict disclosures and informed consent, attorneys must anticipate and address such conflicts of interest at the outset of the representation.3

Pursuant to the ABA Model Rule of Professional Conduct 1.7, attorneys must obtain both parents’ informed written consent to the joint representation if there is a “significant risk” that the representation of one client will be “materially limited” by the representation of another client. In a special education matter, if parents come in with slightly different viewpoints at the onset but are willing to compromise at the time, there could be a concern that down the line one may change their mind, especially if there is a change in situation such as a divorce or separation. Informed written consent requires each affected client to be aware of the relevant circumstances and of the material and reasonably foreseeable ways that the conflict could have adverse effects on the interest of that client.4 When representation of multiple clients in a single matter is undertaken, such as representing both parents in a special education matter, the information must include the implications of the common representation, including the advantages and the risks involved.5 In a special education matter, one advantage of representing both parents is that, if they agree, is there are not multiple attorneys charging parents or communicating on their behalf to the LEA. On the other hand risks can include parents disagreeing on issues such as appropriate programming, whether or not to file for due process, or conflicting settlement goals. Even if the jointly-represented parents provided informed written consent at the start of the representation, they may disagree on the educational goals for their student for any number of reasons during the course of the ongoing representation. In such a case, an attorney may not be able to provide competent and diligent representation to each client. The attorney cannot continue to represent both parents if doing so would require that the attorney sacrifice the interests of one client (i.e., keeping the student in their school of residence) for the interest (i.e., moving the student to a residential placement) of the other.6

ABA MODEL RULES

  Although all of our state bars require us to review our ethical rules every reporting period, we thought it would be helpful to go over the several of the major obligations outlined in the ABA Model Rules of Professional Conduct. The ABA Model Rules require that an attorney ensure that both parents remain aware of potential conflicts of interest, give informed consent, and maintain confidentiality. If the representation becomes untenable due to disagreements between the parents or a conflict in interests, the attorney may be required to withdraw from representing one or both parents. Conflicts of Interest And Informed Consent A conflict of interest is any influence that takes away from representing the best interests of the client. This could include a conflict between the interests of the client and the interests of another client; the interests of the attorney; and the interests of family members. In special education matters, a conflict can most likely occur when two of the clients, or parents, disagree on a matter related to the student. Attorneys must anticipate and address possible conflicts of interest at the outset of the representation. In the context of special education matters, it is important to understand the aims of representation as understood by all signers of your retainer agreement. If, for example, you have a mother interested in maintaining a placement at their neighborhood school and a father interested in seeking a residential placement, you cannot pursue either client’s desired outcome without being at odds with the other parent’s preferred outcome. Other examples could include parents disagreeing on whether or not to consent to assessments, or on the terms in a settlement agreement. It is important to, at the outset of representation, outline the goals of representation so that all parties to your attorney-client retainer agreement are on the same page and have ensured that there is no (actual or potential) conflict of interest as it relates to what you are seeking for the Student.

ABA Rule 1.7 Conflict of Interest: Current Clients

a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:

(1) the representation of one client will be directly adverse to another client; or

(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.

(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph(a), a lawyer may represent a client if:

(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;

(2) the representation is not prohibited by law;

(3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and

(4) each affected client gives informed consent, confirmed in writing.

(5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client;

(6) to comply with other law or a court order; or

(7) to detect and resolve conflicts of interest arising from the lawyer’s change of employment or from changes in the composition or ownership of a firm, but only if the revealed information would not compromise the attorney-client privilege or otherwise prejudice the client.

(c) A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client. In terms of your obligations regarding conflicts of interests, the model rules apply both to current and former clients.

There are circumstances where parents can become separated or cease to be on the same page about the aims of your representation such that you can no longer represent one or both of the parents. In these circumstances, though, you still owe a duty to both parents if your original retainer agreement included both parents.

ABA Rule 1.9 Duties to Former Clients

(a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing.

(b) A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client

(1) whose interests are materially adverse to that person; and

(2) about whom the lawyer had acquired information protected by Rules 1.6 and 1.9(c) that is material to the matter; unless the former client gives informed consent, confirmed in writing.

(c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter:

(1) use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has become generally known; or

(2) reveal information relating to the representation except as these Rules would permit or require with respect to a client.

When a conflict has arisen, if you have not already done so, you must notify all clients of the conflict and its impact on the representation. While clients can sometimes provide informed consent to conflict of interest, if the parties’ desires are fundamentally antagonistic to each other, then there can be no agreement between the parties to continue ongoing representation. For example, if a party is seeking IDEA eligibility and the other is not interested in their student getting an IEP, there is no real space for alignment of future goals. If you reach a point where the parties’ goals are at odds, then the attorney must notify the parties and withdraw from the representation, unless the lawyer has obtained the informed consent of both parties to continue representation.7

Maintain Confidentiality

 Attorneys should notify jointly-represented parents that while the attorney-client privilege protects the disclosure of confidential communications to outsiders, no privilege applies among jointly-represented clients or as between counsel and any of them if they later assume adverse positions.8 The Comments on ABA Model Rule 1.7 notes that each jointly represented client “has the right to be informed of anything bearing on the representation that might affect that client’s interests,” and therefore as attorneys we “should” advise each jointly represented client “that information will be shared” among the jointly represented clients, in our cases the parents.9 This would seem to indicate that attorneys should share information disclosed from one client to the other. But a 2008 ABA legal ethics opinion explained that “[a]bsent an express agreement among the lawyer” and the jointly represented clients “the lawyer is prohibited by Rule 1.6 from revealing (potentially harmful information to any person, including the other client.”10 The best way to get around this seemingly contrasting advice is to explicitly indicate in the engagement letter and retainer agreement whether and under what situations an attorney will disclose clients’ confidential information among jointly represented clients.

ABA Rule 1.6 Confidentiality of Information

(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph

(b). (b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:

(1) to prevent reasonably certain death or substantial bodily harm;

(2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer's services;

(3) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client's commission of a crime or fraud in furtherance of which the client has used the lawyer's services;

(4) to secure legal advice about the lawyer's compliance with these Rules.

ETHICAL ISSUES WHEN REPRESENTING PARENTS

  Most parents who remain married are able to act as a “unit” when it comes to raising their children. This doesn’t mean that there are not disagreements, but in most jurisdictions either parent in a married couple can “bind” the other, and so there are more protections for attorneys engaging in representation of a student when the parents are still married. But in other situations, things can become messier. Divorced / Separated Parents The fact that a student's parents get divorced does not necessarily affect their rights under the IDEA. The general rule is that both parents retain all of their parental rights under the IDEA, including the right to request a due process hearing, unless a court order or state law says otherwise.11

When parents file for divorce, the matter will result in an agreement and/or order that outlines terms for custody and support. In cases where a divorce might take a while, family courts typically will grant temporary orders to define what should happen while the parties reach a full agreement (or a judge determines the overall order). These terms can be renegotiated or re-litigated over time as circumstances change. The IDEA regulations state that if a judicial decree or order identifies a person or persons to act as the parent of a child or to make educational decisions on behalf of a child, then that person would be determined to be the parent.12

The rights of noncustodial parents will depend on state law and the terms of their divorce agreement. But generally, a parent who does not have the right to make educational decisions cannot bring claims relating to the child's education. See e.g., Rech v. Alden Cent. Sch. Dist., 68 IDELR 224 (W.D.N.Y. 2016) (noting that in New York, a parent who does not have legal authority to make educational decisions has no standing to bring a FAPE claim on their child's behalf); A.B.-L. v. North Shore Cent. Sch. Dist., 72 IDELR 160 (E.D.N.Y. 2018) (adopting a magistrate's report which found that because there was no evidence of any joint decision-making authority with respect to education in favor of the noncustodial mother, the mother had no standing to bring claims under the IDEA); Smith v. Meeks, 69 IDELR 29 (N.D. Ill. 2016) (holding that a mother with visitation rights only did not have standing to bring a FAPE claim under the IDEA in Illinois); and Chukwuani v. Solon City Sch. Dist., 76 IDELR 147 (6th Cir. 2020, unpublished), cert. Denied, 120 LRP 34333 , 141 S. Ct. 816 (2020) (ruling that the father of a child with an emotional disturbance could not challenge an Ohio district's identification of his son as IDEA eligible because a state court awarded the father's ex-wife exclusive educational decision-making authority). It is important to note, though, that the majority of agreements / orders in cases with divorced parents include a term for joint legal custody. This is problematic in situations where parents already (or are likely to) disagree.

Where the parents have a custody agreement that spells out the educational rights of the parents, courts will look to that agreement to determine the extent of the parent's rights. See e.g., Navin v. Park Ridge Sch. Dist. No. 64, 36 IDELR 235 (N.D. Ill. 2002), aff'd, 104 LRP 18051, 49 F. App'x 69 (7th Cir. 2002, unpublished) (noting that because the divorce decree expressly gave the father the right to access the child's education records, communicate with district personnel about the student's progress, and participate in school activities, he had a right to file for due process).

PRACTICE TIP: Remind your clients to provide any updated divorce or custody decrees to the LEA to ensure they are aware of the current state of who has educational decision-making authority. If there is other sensitive information in the document, they can always provide a redacted copy to the LEA.

Court and administrative decisions vary regarding the extent of IDEA rights for parents with joint custody. See Abington Pub. Schs., 114 LRP 40878 (SEA MA 09/11/14) 12 34 C.F.R. § 300.30(b)(2); See e.g., Southwest Licking Local, 123 KRO 16795 (SEA OH 03/13/23) (noting that because a 2022 divorce decree stated that the noncustodial father was entitled to access the child's records and attend student activities, the district should have invited the father to the student's IEP meetings). (concluding that a child's stay-put placement was the program he attended for the two months prior to the mother's due process complaint, unless both parents agreed otherwise); Sheils v. Pennsbury Sch. Dist., 64 IDELR 127 (3d Cir. 2014, unpublished) (instructing the District Court to determine whether a district could properly implement a student's IEP with the consent of one parent with joint custody notwithstanding the other parent's objection); DeForest Area Sch. Dist., 68 IDELR 90 (SEA WI 2016) (finding that a district violated the IDEA when it failed to notify a divorced mother who had joint custody of the student about an upcoming IEP meeting); and Watertown Sch. Dist., 75 IDELR 236 (SEA SD 2019) (noting that although neither parent had exclusive educational decision-making authority, the district satisfied its obligations under the IDEA by ensuring that one parent attended the IEP meeting).

PRACTICE TIP: If you have parents who are not on the same page and a custody agreement is in place and you anticipate any difference of opinion regarding what should happen for a student, you should advise them to communicate with their family law attorneys to make sure their agreements include tie-breaking authority. This should happen long before the conflict arises because these modifications in custody agreements can take months to get sorted out and by this time the student in question may have already languished without what they need.

Parents Who Share Custody

Parents who share custody can include parents that are divorced or were never married but who have a custody agreement. It is important to understand the difference between “physical custody” and “legal custody” in any family law proceeding involving children. Physical custody refers to the schedule and/or arrangement regarding with what parent the child resides. Legal custody on the other hand refers to the ability of the parents to make decisions on behalf of the children, including as they relate to medical and educational issues. Like physical custody, legal custody can be sole custody for one parent or joint custody, meaning the responsibility is shared. If one parent has sole legal custody, he or she is responsible for all decisions related to the child’s education, including special education issues. That parent would have the sole authority to agree or disagree to changes to the IEP and to file for due process based on any disagreements. If you have sole legal custody, it is a good idea to provide the school and LEA with a copy of your custody agreement to make sure that they honor it. If both parents share legal custody, then both parents have a right to attend an IEP meeting, to obtain records, and both need to consent to an assessment plan or IEP. In theory, they would both need to agree on issues related to special education. In practice, the LEA will take the consent of one parent on an IEP or assessment plan as agreement and move forward. With a settlement agreement, the LEA will typically require consent of both parents to finalize a settlement to prevent the situation where after reaching a settlement with one parent, the other files his or her own due process case.

PRACTICE TIP: Given that the IDEA does not require that all claims be brought in a single action, it is possible that two parents could simultaneously (or sequentially) file claims, so you may want to consider the possible steps to be taken if a due process complaint must be filed when there are no terms in a custody agreement regarding who has educational decision-making rights.

Domestic Violence Considerations

Local Educational Agencies are not in the business of enforcing family law matters. This is especially true in the context of situations where there is domestic violence implications (e.g. stay-away orders or Domestic Violence Restraining Orders (DVROs)). This means that when representing parents who are in any sort of high conflict situation, you should make your client aware that the LEA is not going to “protect” them or their rights from the other parent. For example, LEAs are not required to hold two IEP meetings if parents do not want to be, or are legally required to not be, in the same room. The LEA is required to make one offer of FAPE and if both parents have decision-making authority, both parents must be able to meaningfully participate. One option is for one or both parents to participate via phone or video if necessary. In the case of a DVRO, for example, the parties may want to consider having one or both parents have their cameras off to try and diffuse a possible hostile situation. It is also important to note that in many jurisdictions only one parent is required to bind a school district to a course of action. This means that in contentious situations where parents do not even necessarily agree on eligibility and even the most basic of services, without clear guidance from the family court a parent can revoke consent for IDEA eligibility and services over the objection of the other. While this creates very complicated obligations for LEAs, it also causes unique obligations on attorneys to make sure parents are advised about this possibility so that orders and agreements can be reached as part of any custody arrangement to make sure things will not get undone at a later point in time.

CONCLUSION

In conclusion, attorneys representing parents jointly in special education cases must navigate a complex ethical landscape to ensure that their professional obligations are met. These obligations include the duty to provide competent representation, uphold confidentiality, and avoid conflicts of interest. Joint representation introduces unique challenges, such as potential disagreements between parents or the risk of divulging confidential information, which attorneys must address with caution and transparency. By adhering to ethical guidelines, maintaining clear communication, and seeking informed consent from all parties, attorneys can fulfill their role effectively and, in most cases, ensure that both parents' interests are adequately represented in special education matters.

__________________________________________

1 There is a discussion to be had about the ethics of whether the student or the parents should be the client in any given representation agreement. We are not exploring that question here, though we flag it here to make sure you consider this question as you develop your retainer agreements and letters of engagement.

2 The IDEA's definition of “parent” expressly includes a foster parent unless state law, regulations, or contractual obligations with a state or local entity prohibit the foster parent from acting as a parent. See 34 C.F.R. 300.30(a)(2).

3 Buckner, Carole J. Ethics Spotlight: Conflicts of Interest Arising During Representation; California Lawyer’s Association, June 2021. Available at https://calawyers.org/california lawyers-association/ethics-spotlight-conflicts-of-interest-arising-during-representation/

4 Comment 18, Rule 1.7 Conflict of Interest: Current Clients – Comment. Available at https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_7_conflict_of_interest_current_clients/comment_on_rule_1_7

5 Id.

6 Buckner, Carole J. Ethics Spotlight: Conflicts of Interest Arising During Representation; California Lawyer’s Association, June 2021. Available at https://calawyers.org/california lawyers-association/ethics-spotlight-conflicts-of-interest-arising-during-representation/

7 See ABA Model Rule 1.16.

8 As a note, it may be the case that communication between joint clients and their attorneys are not confidential in all cases. In a California case, Anten v. Superior Court, the court found that communications made by one joint client to the attorney in a common interest representation were not protected by the attorney-client relationship in a legal malpractice action filed by another joint client against that attorney. See Anten v. Superior Court, 233 Cal. App. 4th 1254 (2015).

9 Comment 31, Rule 1.7 Conflict of Interest: Current Clients – Comment. Available at https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_pr ofessional_conduct/rule_1_7_conflict_of_interest_current_clients/comment_on_rule_1_7/ 10 ABA Legal Ethic Opinion 450 (4/9/08).

10 ABA Legal Ethic Opinion 450 (4/9/08).

11 71 Fed. Reg. 46,568 (2006).

12 34 C.F.R. § 300.30(b)(2); See e.g., Southwest Licking Local, 123 KRO 16795 (SEA OH 03/13/23) (noting that because a 2022 divorce decree stated that the noncustodial father was entitled to access the child's records and attend student activities, the district should have invited the father to the student's IEP meetings).

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© COPAA (2025) - All Rights Reserved

I.  Introduction

 How many times have you brought donuts or treats to your parent-teacher meeting or the IEP/504, or dropped treats off at school, well, just because.  Teachers are our heroes, right?  They have all these certifications and so much education!  And your child(ren) are in their care for most of their waking hours during the week, so you really want them to be taken care of!  At the same time, something is going on with your child(ren) and you don’t feel heard in the meetings. You don’t know what to do….

Regardless of whether it is a parent/teacher meeting, 504 or IEP, or speaking in front of your School Board, there is a hierarchy of needs that should be addressed for parents to be empowered as effective communicators and be heard.

To feel heard and be effective communicators in school meetings, parents should “ditch the donuts” and break the habit of underselling themselves by recognizing their own value, and asserting themselves, as the expert regarding their child.  Parents/guardians need to understand their own vulnerabilities and triggers and have a plan to manage their own emotional responses.  Parents/guardians should also understand District priorities and constraints and come prepared to meetings educated, and with a plan that facilitates communication and includes facts and data.  Finally, to round out a parent’s/guardian’s ability to communicate effectively and enhance their credibility, Parents should seek opportunities to volunteer, observe, and/or work as a substitute in their District.

Note: When the paper references Parent, this includes a Foster Parent, Guardian, or other non-biological parent.

II.  Break the Habit of Underselling

            A.  What is Underselling?

The Merriam-Webster Dictionary defines underselling as “to present or speak of (something or someone) as having a lower value or less importance than is actual or deserved."^[1]  In other words, underselling refers to downplaying or minimizing one’s own role, authority or contributions.  This often occurs in school settings when parents/guardians lack confidence in expressing their opinions or fail to speak up during meetings with teachers or staff, defer to authority, do not actively participate in discussions, or do not actively involve themselves in their child’s education.

            B.  Why is Underselling Problematic?

Underselling is problematic for several reasons.

1. Diminished input: When parents undersell their role, they may not fully express their insight, concern or perspective about their child’s needs, abilities or challenges. This lack of input deprives teachers and staff of valuable information that can help tailor educational strategies to meet the specific needs of the child.
2. Missed Collaboration: Effective education requires collaboration between parents and educators. Underselling can inhibit this collaboration as it reduces the active engagement and partnership between parents and school staff. It can prevent the hearing of crucial information that could significantly benefit the child’s academic and social development.
   
3. Impact on Child’s Progress: Parents are a primary source of information about a child’s behavior, learning style, strengths, weaknesses, and home environment. Underselling can result in a lack of understanding or awareness around educators about a child’s holistic needs, potentially affecting their academic progress and overall well-being. For example, when discussing skill acquisition in a meeting for an Individualized Educational Program (IEP), parental input is important to understand if a skill that is being targeted in an IEP goal is being generalized or acquired across all settings, not just in the school. 

            C.  Identifying Parent Value

What parents need to understand and own is that fundamentally, the value that parents bring to the table is significant.  And what they need to explain to the school team to help them recognize is the following:

1. Insight about the child: Parents know their child the best out of anyone because they have observed their child since birth. While guardians might not have had the same experience, they too have had intimate moments and spend more time with their child than anyone in the educational setting. Parents have intimate knowledge of their child’s personality, learning style, interests, strengths and weaknesses, environmental responses, triggers, routines, and home life. They’ve witnessed milestones, changes, and nuances in behavior, learning patterns, and emotional development that teachers or other professionals might not have had the chance to see. Each child is unique, and parents understand their child’s uniqueness intimately. This depth of understanding is crucial in comprehending a child’s behavior and academic performance. All of this information is necessary for the development of appropriate individualized health plans, 504s, IEPs, and any other effective plans of care for a child in the educational setting.
   
2. Support System: Parental involvement creates a robust support system for a child's education. When parents actively engage with educators, they signal the importance of education, encourage learning at home, and reinforce the lessons taught in school. We call this continuity of care or learning, and it is vital for skill acquisition.
   
3. Collaborative Partnership: A collaborative partnership between parents and educators fosters a more comprehensive approach to a child’s education. It allows for the sharing of strategies, insights, and resources that can enhance the child’s learning experience. This can help bridge any gaps between school and home and provide continuity of care/learning experience.

            D. Parent Value Codified into Federal Law

This insight is so valuable, that it has been codified into Federal law, and not just the one that we hear about all the time - the Individuals with Disabilities in Education Act or IDEA, but in several other major Federal laws such as the Every Student Succeeds Act (ESSA), and for parents for whom English is not their first language, under Title VI and the Equal Opportunities Act.  This in turn has found its way into state legal language and school district policy.

The Every Student Succeeds Act (ESSA)^[2] emphasizes the importance of parent and family engagement in a child’s education.  In fact, we might call this law the cornerstone of parent and family involvement in public education.  ESSA recognizes that involving parents in their child’s schooling can positively impact academic achievement.  It encourages schools to collaborate with parents to create strategies that support learning both at school and at home.  Specifically, ESSA requires that schools and districts develop plans for family engagement.  ESSA acknowledges the crucial role parents play in a child's educational journey and aims to strengthen partnerships between schools and families to support student success.

The Individuals with Disabilities in Education Act (IDEA)^[3] is perhaps the most widely recognized and spoken about in terms of parental involvement in this forum as parents are required team members in IEP team meetings.  The school district must consider the concerns of the parent, the parent must be part of any team that makes placement decisions, they have the right to request an IEP meeting and evaluations, and the district must provide parents with prior written notice of proposed of refused actions.

According to the Dear Colleague Letter on English Learner Student and Limited English Proficient Parents^[4], under Title VI and the Equal Opportunities Act, parents for whom English is not their first language have the right to request school documents be translated or interpreted for them in order to have “meaningful access to district and school-related information,” which covers a wide array of information beyond what is addressed in IDEA.  They must also have access to interpreters at school meetings.  This is to ensure that English limited proficient parents remain just as much a meaningful part of any school engagement as English speaking parents.

It is crucial that Parents recognize that they play a vital role in their child’s education and learn to assert themselves effectively in school meetings. When parents confidently engage with teachers and school staff, they contribute to a more holistic and effective educational journey for their child. This collaboration nurtures a supportive environment where the child's needs are better understood and addressed, ultimately leading to improved academic and personal growth.  This recognition of the parent as the expert in their child and the need for effective communication and collaboration is ingrained in Federal and State law and school district policies. The bottom line is that Parents need to stop apologizing and set boundaries as they are the expert in their child.

II.  Identifying Your Own Triggers and Vulnerabilities

            A.  What is in Your Family Tree?

Oftentimes, parents and guardians who go on this journey with their children start to identify traits in themselves that they see in their children.  But they dismiss getting an official diagnosis or seeking help.  Identifying whether or not you have a disability can be affirming and empowering, because if you are struggling, it gives you the knowledge on how to mitigate any limiting factors that might be impacting your job, your relationships, as well as impacting your ability to effectively advocate for your child(ren) and their needs.  It could possibly help you move from merely surviving to living and/or from living to thriving.  It also allows you to request accommodations for school meetings under the Americans with Disabilities Act. Change does not happen overnight, and this is a personal choice, but it is important to consider when you have a child or children to nurture and support.

            B.  Recognizing Trauma

Trauma is very real.  Perhaps a parent experienced trauma in school due to bullying or because they had an unidentified and unsupported learning disability, or with a previous child, and feels as if they are reliving these experiences in school meetings.  Or perhaps the meetings themselves are emotionally taxing and parents are feeling frustrated, helpless, or misunderstood and each meeting feels as if the parent is reliving the previous one.  Trauma becomes a trigger and unmanaged triggers can exacerbate and worsen pre-existing trauma and/or create new trauma.

Triggers include negative memories, fears, stressful situations, loss or grief, and change.  And many times, school meetings can evoke some level of stress.  It can evoke past trauma or make a parent anxious and fearful. Parents should be aware of the signs resulting from trauma, or triggers, such as heightened anxiety, emotional numbness, irritability, physical tension, elevated heartbeat, or avoidance behaviors, and not be afraid to take a break or ask for a new meeting time take a moment to validate their own emotions and find a way to ground themselves.  Trauma and triggers can evoke strong emotional responses that might hinder effective communication or decision making and unaddressed triggers might lead to escalating conflicts.  Effective communication that keeps school meetings child-focused demand an emotionally regulated parent or guardian be present.

            C.  Seek Help

If you are experiencing trauma or being triggered in school meetings or by school staff, seek professional help.  With Simon Bile’s raising awareness of mental health by stepping back from gymnastics at the 2021 Summer Olympics, we as a society are slowly starting to embrace the importance of taking care of addressing our trauma instead of ignoring it.  And we need to remember that when we have children that are relying on us to have their needs met, that it is a sign of strength when we turn to others to support our areas of need.

You can also take a break, acknowledge the feeling, practice self care, practice mindfulness/meditation, develop a grounding routine, establish boundaries, and build a support system.

            D.  Create a Plan

Once you begin to recognize what your triggers are and how you respond to those triggers, you can then work on creating a plan to change the environment for those triggers to occur and to learn coping skills and techniques to reduce your ingrained and automatic response.  This is important in the context of school meetings as some school staff will use a parent’s emotions against them and label them as uncollaborative, institute a communication plan, or remove them from the school campus in extreme situations.  This removes your ability to effectively support your child.  So by doing your work ahead of time to identify your triggers and remain emotionally regulated helps keep the school team focused on the needs of your child(red).

Part of the plan could be requesting meeting accommodations in writing under the ADA or it could be requesting that the meeting be held over zoom or at a mutually agreeable time and place that works with your schedule.  Perhaps you could submit comments or testimony in writing instead of speaking in person.  Maybe you will create a binder or google drive organizing your child’s records so you have access to everything in one place.  Perhaps you will request that a staff member be replaced by a different staff member.  Maybe you will bring an advocate.  You will identify when you need to stop the meeting and take a break.  You will identify when you need to speak up and set a boundary.  These are just examples of ways to start approaching meetings in a more meaningful and deliberate way to remain calm and collected throughout the process.

            E.  Written Responses

The same goes with written and phone communication.  Never reactively respond to anything.  Take a moment to identify what you are feeling, acknowledge it, and focus on what your child(ren) needs to gain from a response.  Construct a response in the form of Wrightslaw’s Letter to a Stranger^[5] and have someone else read it before you send it.  Remember that when it comes to supporting your child(ren) and getting them what they need, emotion muddies the waters and can turn the attention away from the needs of the child.

            F.  Strength in Numbers

There is an African proverb, “It takes a village to raise a child.”  While this proverb focuses on the fact that parents cannot and should not raise a child alone, I would also go so far as to say that you as the parent should feel empowered to take support with you to school meetings.  Whether it is a parent-teacher conference, 504/IEP, or school board meeting, never parent alone, never meeting alone, and do everything you can in a village, as there is strength in numbers.  Feel free to bring a spouse, partner, sibling, parent, grandparent, friend, medical provider, advocate, etc.  If you feel alone, know each state has federally mandated Parent Training Information Centers and there are a variety of non-profits such as Disability Rights, Easter Seals, the ARC, Parent to Parent, and many times you can find local non-profit such as community resource centers who can connect you to resources to help you navigate this system.

IV.  Identify District Priorities and Constraints

            A. Resources

The bottom line is that a school district is a business.  It must determine how to allocate its funds based on wants and needs and per any dictates placed on its revenue streams.  Understanding how your District is funded, and what those funding stipulations are, can place you in a stronger negotiating position if the District is not in compliance, or if your student meets a specific funding criteria.  Attending school board meetings is one way of learning about the budget.  You can also ask to meet with individual district Administrators to learn more.

This is replicated on a smaller level at each campus.  In states in which funding is driven on student attendance instead of enrollment, campus administration and teachers might not be as understanding of disability created chronic absenteeism, even if protected under federal law, as it contradicts their goal of “butts in seats.”  While the attitude is ableist, understanding their perspective can give you the understanding of what might be driving any perceived resistance and give you the needed language to bridge communication gaps.  It can be helpful to attend campus wide meetings and meet with the Principal to understand campus priorities and resource concerns so you can identify, and prepare for, resistance to resource intensive asks for your child.

While Districts often apply for grants to help fund specific projects, there are also school specific grants that often go unused simply because the District is unaware of the existence of these grants.  Should you have a need that requires funding, doing your research and finding a grant to share with the school put you in a position in which it makes it more difficult for the school to steamroll over you or ignore your requests.

            B.  Staffing Shortages

We are in a national school staffing shortage crisis. According to Education Week, staff shortages are here to stay and there are no clear solutions^[6]. As fewer people seek teaching degrees, schools are struggling to find and retain general education teachers, special education teachers, paraprofessionals, speech-language pathologists, school psychologists, bus drivers, and other staff.  This means that the few staff that are working in the schools have higher caseloads and feel overwhelmed and burn out quickly, leading many to leave, increasing the workload for those left behind.  The results of the school staffing shortage may impact your student.  Based on what I have found in my advocacy business and in communicating with other advocates, students are being left in classrooms unattended, not being evaluated in a timely manner, not receiving service minutes in their IEPs, not receiving services at all, not being provided certified teachers,  etc.

This statement about teacher shortages is not to prepare a Parent to expect a substandard education from their school District.  While it is important that you are aware of what is happening, it does not mean that you must excuse the District from their affirmative duty to provide your child with a disability with a free and appropriate public education.  One of the most important things you can do is read your District’s Student Handbook and Student Code of Conduct as this lays out the bare bone basics of many of the concepts stipulated in State and Federal Law for general and special education students.   This includes teacher and staff professional qualifications, policies on bullying, timelines for evaluations, etc.  It also explains how your student is expected to act while on school grounds or in school care, which is important if you have a child with a disability which results in behavioral issues.  Finally, ask for the data that feeds into your student’s progress monitoring reports and for the intervention/service logs to verify that your student is actually making progress and receiving services.  By reading your District’s Student Handbook and Code of Conduct and becoming familiar with state and federal education law and by having the data to show whether or not your child is progressing and receiving interventions will empower your voice at any school meeting.  Being a flexible thinker and coming to the table with solutions and suggestions to help the team stay child-focused amidst staffing shortages will also gain you respect and attention.  Raising the suggestion of contracting out for evaluations, using virtual providers for speech language therapy and counseling, or partnering with local providers to ensure that your child is receiving a free and appropriate education are just a few of the ways to bridge the existing staffing gaps.

            C. Licenses and Inflexible Thinking

There are other things which can create break downs in communication and lead Districts to silence parents, such as investments in curriculums and licenses and inflexible thinking and politics.  Districts make million dollar investments in curriculums and interventions.  For example, Hillsborough County Public School District received a quote of over $1 million for 35,000 LANGUAGE! Live student licenses in 2022^[7]. LANGUAGE! Live is a Voyager Sopris Learning reading intervention program for grades 5th - 12th that is supposed to be a blended approach of online and teacher-guided lessons^[8], however, with staffing shortages, Districts have become reliant on the computer program itself as the main source of intervention.  As they have made such a huge monetary investment in the program, when a student on an Individualized Education Program (IEP) needs more intensive intervention or a different type of intervention than LANGUAGE Live!, Districts can be very resistant to moving that student out of the program due to the financial investment they have made on it.  This also means that all students going into grades 5-12 will be put into the program as the licenses have been purchased.  For students with an IEP, this is not an individualized approach.  This is replicated with different programs and interventions throughout Districts and grade levels.  Again, this is not to say that a Parent needs to except just one curriculum or intervention from a District, but to understand why a District might be resistant and be prepared with alternatives and flexible thinking and keep the conversation student-centered and not District resource centered.

            D.  Additional District Roadblocks

Also, the District personnel themselves can be a hindrance for a Parent being heard in a meeting, and it can be useful for a Parent to understand the personalities, backgrounds, and personal and political motivations of the staff present in the meetings or higher up in administration influencing decisions.  For example, you might have an old school Principal who has been at the District for 20+ years and “this is the way they have always done it.”  Or you have the school psychologist or special education director with a PhD who position themselves as the expert in the room and ask where you went to school and in what you obtained your degree?  Understanding who holds the power to make decisions, if the team needs help breaking out of silos to work together to support your child, and if a little bit of Southern charm or New York directness is needed to move the team forward can again empower you to successfully navigate a team meeting.  Moreover, realizing that coming prepared and asking questions and showing data can invoke defensive responses in people not used to, or interested in, being held accountable.  And that ultimately, you cannot take such responses personally, as to do so will erode your ability to effectively communicate and support your child(ren) in the school setting.

V.  Ditch the Donuts - Come Prepared

So you have identified your disabilities, your triggers, devised a game plan to limit emotional responses and understand your District priorities, resource constraints and personalities.  Won’t bringing donuts be a great opening gift to show your willingness to work with the team?  Not really.  First of all, you are rewarding behavior that hasn’t occurred.  In any behavior intervention plan, you want to reward the positive behavior you want as it occurs.  So when you provide all of your positive incentives before there is any positive behavior, the District has lost any incentive to do the right thing.  Second, you risk the team experiencing a sugar crash during the meeting.  This can result in irritability or impatience, confusion, hunger, sleepiness, headaches, anxiety, etc.^[9], things that you do not want to happen.  Third, this can turn into a power game as the team refuses to eat for donuts, leaving you feel unappreciated and defeated. 

            A. Record the Meeting

Rules for recording vary by state.  Check your state laws and District policies prior to recording.  However, some Districts have policies about recording on campus.  Check your guidelines.  Ask for a recording as an ADA accommodation if necessary for a Parent/Guardian with a disability to access the meeting.

            B. Request ADA Accommodations

A Parent/Guardian, Advocate, or meeting participant can request reasonable accommodations under Section 504 and the Americans with Disabilities Act in order to access and participate in a meeting with the school district^[10].  You should make your request well in advance of the meeting and in writing.  Such accommodations could include sign language interpreters, accessible formats, meeting recording, virtual meetings or accessible meeting locations, extended meeting times or breaks as needed, large print materials, etc. 

            C.  English as a Second Language

If English is a second language, then the school needs to provide an interpreter at meetings and either provide an interpreter to read any school provided documents to the Parents or translate school documents for the Parents.  The District must also be culturally sensitive in how it engages with the Student in testing, writing, goals, and providing services, as well as when it interacts with the family.

            D.  Request Documents in Advance

To be effective in meetings, you have to have access to the same documents and information to which the school team has access.  Therefore, you must request these documents in advance.  While requirements for when documents must be provided prior to an IEP meeting vary by State, the Family Educational Rights and Privacy Act (FERPA) provides Parents access to their student’s educational records within 45 days of a written request^[11] and IDEA states that access must be provided before any meeting regarding an IEP or any hearing or resolution session^[12].  

            E.  Dress to Be Heard

While behaviors should matter more than appearance, first impressions are often made based on appearances and clothing can be used to manipulate first impressions.  A study by Thomas Moran et al. discusses the different impressions clothes can make.^[13] For example, more formal clothing conveys intelligence, trustworthiness, and competence, whereas casual clothes lend to feelings of friendliness and creativity. However, one’s charisma is negatively correlated with formal clothing, as wearing clothing that deviates from social norms can be seen as having such an outstanding ability as to not need to comply with social norms.  The bottom line is decide what you want to project in a meeting and dress accordingly, but dress intentionally.

            F.  Child-Centered

Throughout the meeting, remember to keep the meeting child focused.  Too often your child(ren) can get lost in the swirl of District priorities, personalities, and finger pointing.  Remember to bring everyone back to your child and that the outcome of today’s meeting is to support your student.  It can be very helpful to bring a picture of your child and/or post a picture on your zoom, pass out a one-pager to the teacher, and to provide video of your child performing a cold-read at their reported independent and instructional reading levels or working on their homework, etc.  Use statements such as, “What is most important for my child right now is….”  You are your child’s voice, so bring your child into the room and keep the focus on their needs. [Whenever appropriate, your child can attend a meeting and take part in setting present levels, interests, goals and services and support.] 

            G.  Bring Support

This process can be overwhelming.  There are Federal laws, State laws, OSEP letters, Case law, District policies, evaluation data, program data, etc.  It can be easy to feel defeated when the school staff eat, breathe, and sleep this every day and you just started to learn.  Hire an advocate.  Reach out to your non-profit organizations such as Disability Rights, Parent Training Centers, Parent to Parent, Easter Seals, the ARC, local parent groups and community resource centers and ask for help.  Bring your spouse/partner, friend, parent, neighbor, child’s physician, therapist or provider to the meeting.  Post on the COPAA forum blogs and join Facebook groups.  You do not need to do this alone. 

            H.  Outside Data

[You should request and receive copies of the school data], but you do not need to rely solely on the school’s data. You have your own data. You can track how long it takes your child to do their homework at night and how they perform.  You can video them. You can ask them about their day and how they feel.  You can listen to their speech and note articulation errors, how well they understand what is said, how well they express themselves, how well they interact with the give and take of a conversation. You can download free screeners and assessments and ask a neighbor or friend to administer them to your child.^[14]  You can video your child reading a book they have never read before at their independent and instructional levels for 3 minutes and then ask questions about the main idea, character, etc.  You can ask club leaders and/or physicians and private providers to write letters or provide feedback as to what they see in terms of behavior, functioning, writing, reading, etc.  If your child is unable to read, write, or do math outside of school, then they are unable to do it in school.  If your child is struggling to communicate, struggling with executive function, struggling behaviorally, struggling with anxiety, or struggling in any way at home, then they are probably struggling at school.  Collect this data and bring it to the meeting!

            I.  Be Organized

Create a system in which to organize your child’s documents.  Whether this is done electronically via Google Docs, Dropbox or other platform, it is important to have a central file that can be easily accessed to retrieve, reference and share your child’s information at any time.  You can also create paper binders or notebooks.  Whichever system works for you.  There are several classes in person and on-line that teach document organization.

After reading through the documents, take notes and write down your questions.  It is always a good idea to provide the meeting organizer with a list of items you would like to discuss at the meeting so that they can come prepared as well.  If bringing support, discuss roles of your attendees so that everyone is on the same page.

Follow up meetings with an email that summarized what was discussed.  Remember, if it isn’t in writing then it did not happen.  After an IEP meeting, have your notes attached to all physical and electronic copies of the IEP.  Even if the District took notes, they are not legally obligated to do so and their notes are often one-sided.

            J.  Graph Data

It is often easier to understand information when presented in a visual form.  By graphing your child’s cognitive scores, academic, speech, and occupational therapy scores from their most recent evaluations, this will help you establish the baseline of where they are in core areas based on norm-referenced testing.  You can also graph their local, District, and State assessments to track progress within a school year, and depending on the assessment, between school years to identify progress, or lack thereof, and regression.

            K.  Phrase statements as questions

One way of engaging school staff is to turn your statements into questions.  Instead of exclaiming, “My child isn’t making any progress,” ask if the teacher or interventionist can show you how your child is making progress.  Ask them if the data shows progress or regression.  Ask what they are seeing in the classroom, how the student is engaging with interventions, etc.  If the team is blaming the student, you can agree that the situation sounds difficult and then ask the school how they plan on assisting the student?  Use “what” and “how” questions to have the staff say what you are trying to get them to hear.

Also, be clear if you do not understand and ask questions to seek understanding.  It is a misnomer that saying you are confused is a sign of weakness.  Meaningful parental participation and informed consent are important tenets of IDEA, stating that you are confused indicates that you are neither a meaningful participant, nor are you informed.  Do not hesitate to state, “Can you please clarify this…” or “I don’t understand, can you explain it a different way?”  Or “If I understand you correctly, then you are saying ….”

            L.  Key Terms

Another important way of being heard is to identify and use key terms from Federal and State law.  Words such as “appropriately ambitious,” “meaningful participant,” “educational benefit,” “academic and non-academic progress,” “collaborative,” “mitigating circumstances,” “manifestation of their disability,” and “access,” are all examples of words that have weight and impact when spoken to someone who understands IDEA and Section 504.  Used appropriately, it can help you be heard.

            M.  Learn Procedural Safeguards

Parents are provided a copy of their procedural safeguards at least annually.  However, possession does not equate to understanding.  Learning that you can request an Independent Evaluation at school expense, or that you can file a state complaint, request a facilitator, request mediation, or even file for due process, and your world of possibilities opens up.  This is in addition to your rights under Section 504 and your rights to file grievances and an internal disability discrimination case within your own District.  Knowing that you can also file against a teacher’s state license (held by principals and special education directors) as well as the state license held by school psychologists and school and speech occupational therapists, and suddenly, the tools available to hold the school and staff accountable have increased dramatically.

            N.  Everything in Writing

This can never be said enough.  If it is not in writing, then it did not happen.  Even if you record a conversation.  Follow up a verbal conversation with an email recapping what was said.  If you disagree with the IEP meeting notes or anything in the IEP or evaluation or 504 or prior written notice, then follow up with a written statement and request that it be added to all physical and electronic copies of the document.  If you do not put it in writing, then there is no documentation that it occurred.

VI.  Rapport Building via Service and Works

Finally, there are a variety of other ways besides donuts to build rapport and respect with the school district.  First, you can volunteer.  Schools always need volunteers in the classroom to read to students or tutor them, to assist in the library, to cut and copy student materials for teachers, or to assist with parent-teacher organizations or campus or district organizations. Second, you can observe in the classroom.  While observing might not be providing support to teachers and staff, it helps you understand what your child(ren) are experiencing during their school day and what the teacher is experiencing as well.  This could allow you to brainstorm solutions which could help both your child(ren) and the teacher.  Finally, you can become a substitute teacher.  This gives you behind the scenes access to see the support the District is providing teachers and staff, how teachers are teaching, how the classroom is setup when the teacher is gone, and helps you build relationships with key players in your child(ren)s life.  Ultimately, all three scenarios will help you understand the campus, District, and people better, while providing you insight into how your child(ren) experience school, and also letting you see any challenges first hand and start thinking about creative solutions to bridge perceived gaps.           

VII.  Conclusion

While we have been led to believe that teachers are the experts in educating our children, ultimately, we, the parents and guardians, are the ultimate experts in our children and are one of the most important voices to be heard in a school meeting.  By breaking the habit of underselling, identifying their own triggers and vulnerabilities, seeking understanding of District priorities, and constraints, and by ditching the donuts and coming to meetings prepared with a plan that facilities communication and includes facts and data and leaves emotions at the door, parents are in a stronger position to keep the meeting child-focused and to be heard as they strive to work with the school to have their students’ needs meet.  By volunteering, observing, and/or substituting in the District, the parent can cement relationships and gain a true understanding of their students educational needs and classroom challenges and can reflect upon creative solutions to bridge the gap to solve them.

Kathleen Whitbread, Ph.D., A/OGA

Whitbread Educational Consulting, LLC 

Anne Treimanis, Esq.

Law Office of Anne I. Treimanis, LLC 

“Teaching Reading IS rocket science.” Louisa Moats

Introduction

According to research by the National Institute of Child Health and Human Development (2000), reading is the single most important skill a child will learn in life.

Only 33% of the nation’s fourth graders are proficient readers. (National Assessment of Education Programs, 2022)

Students who fail to read on grade level by the fourth grade rarely “catch up.” (Lyon, 2001)

The American Federation of Teachers contends that “the most fundamental responsibility of schools is teaching students to read” (1999).  

Children who reach adulthood without adequate reading skills are at risk for low self-esteem, unemployment, and poverty (Kutner et al., 2007). 

For students with disabilities, literacy is a key component of their future autonomy, as nearly every aspect of adult life, including navigating public transportation, applying for jobs, or understanding medication instructions, relies on reading skills. Research has consistently shown that children with intellectual disabilities (ID) can effectively learn to read using the same evidence-based strategies that benefit other readers facing challenges (Allor et al., 2010; Bradford et al., 2006; Browder et al., 2013; Burgoyne et al., 2012; Lemons et al., 2012). However, a significant gap exists in the implementation of these strategies, as many educators lack the necessary training to apply effective reading instruction methods for children with ID (Ricci & Osipova, 2018). Consequently, there is a tendency to rely on more simplistic, functional sight-word programs (Browder et al., 2009), which will not fully address the broader literacy needs of these students.

A key insight from research on struggling readers, including those with intellectual disabilities, is their need for explicit instruction in decoding and encoding. Unlike their peers, they do not naturally infer these rules from activities like guided reading or whole-word instruction.

The National Reading Panel, synthesizing decades of scientific research on reading acquisition, identified five essential components of effective reading instruction:

1. Phonemic awareness – the ability to recognize and manipulate word sounds

2. Phonics – understanding the relationship between letters and sounds

3. Fluency – reading smoothly, accurately, and expressively

4. Vocabulary – having a sufficient word bank for effective communication

5. Text comprehension – the capacity to understand read material

Crucially, accurate assessment across these dimensions is vital for devising effective reading interventions. Common literacy assessments, however, often fall short in gauging the reading abilities of students with intellectual disabilities. To accurately assess and support these students, existing assessment tools must be adapted to their unique learning needs.

A Closer Look at the “Big Five”

Phonemic Awareness

Phonemic awareness is a specific skill that falls under the broader category of phonological awareness skills. Phonemic awareness focuses specifically on the sounds in words, rather than letters or spelling. It is a crucial pre-reading skill that helps individuals understand the relationship between sounds and letters. The English language has 26 letters, but about 40 phonemes. We have 250 different spellings (e.g. “f” as in ph, f, gh, ff). Phonemes are not always obvious; they must be taught. Sounds are not always distinctly separate from each other.

Children develop phonological awareness gradually, beginning with less complex skills such as recognizing words that rhyme or counting the words in a sentence, and progress to more complex skills, such as counting the number of syllables in a word or recognizing words that begin with the same initial consonant sound. Phonemic awareness is the most complex skill along the phonological awareness continuum and involves the ability to manipulate the individual sounds - or phonemes – in language, including blending and segmenting sounds to read (decode) and spell (encode). 

Phonological Awareness vs. Phonemic Awareness

Phonological Awareness and Phonemic Awareness are two related concepts that often get confused due to their similarity. However, there are key differences between them. Both of these concepts involve the ability to recognize and manipulate the sound structures of spoken language, but they operate at different levels of complexity.

Phonological Awareness: This is a broader term that encompasses the recognition and manipulation of various components of spoken language such as words, syllables, onsets and rimes, and phonemes. It includes activities like:

• Word Awareness: Recognizing individual words in a sentence.

• Syllable Awareness: The ability to recognize and break down words into their syllables. For example, understanding that the word 'catapult' has three syllables - 'cat-a-pult'.

• Onset-Rime Awareness: Understanding and identifying the onset (initial consonant or consonant cluster) and the rime (vowel and any consonants that follow) in a syllable. For instance, in the word 'star', 'st-' is the onset and '-ar' is the rime.

• Rhyme Awareness: Recognizing and producing words that rhyme.

Phonemic Awareness: This is a subset of phonological awareness and is more focused and specific. It deals with phonemes, which are the smallest units of sound that can differentiate meaning. Phonemic awareness involves skills such as:

• Phoneme Isolation: Identifying individual sounds in words, like recognizing that the word 'cat' starts with the /k/ sound.

• Phoneme Blending: Taking individual sounds and blending them into a word, like blending the sounds /k/, /a/, and /t/ to make 'cat'.

• Phoneme Segmentation: Breaking down a word into its individual sounds, like identifying that 'cat' consists of three sounds: /k/, /a/, and /t/.

• Phoneme Manipulation: Adding, deleting, or changing sounds in words to create new words. For example, changing the /k/ in 'cat' to /r/ creates 'rat'.

In summary, while both phonological and phonemic awareness deal with the ability to identify and manipulate sounds in spoken language, phonological awareness is a broader concept encompassing various types of sound units, whereas phonemic awareness specifically pertains to the smallest units of sound, the phonemes.

Phonics

Phonics is a method of teaching children to read. Phonics instruction teaches children the alphabetic principle –the understanding that there is a systematic, logical and predictable relationship between phonemes (the spoken sounds of language) and graphemes (the letters or letter combinations that represent those sounds in written language). The most common method of phonics instruction is synthetic phonics, which teaches sound-symbol associations for individual phonemes, e.g. the letter b says /b/, as in boy, bin, and bat. Once children learn these relationships, they can apply that knowledge to decoding, or “sounding out,” unknown words by blending the sounds together. For example, when children know the sound/symbol associations for letters  t, m, a and b, they can decode words such as bat, mat, and tab. Synthetic phonics is the method that works best for most students. 

A less common method of phonics instruction is analytic phonics, which focuses on teaching larger units of sounds known as phonograms or “rimes” (sometimes referred to as word families) such as –ap (map, tap, sap) or -ot (hot, pot, lot).

Embedded phonics instruction teaches letter sounds incidentally in the context of reading connected text. For example, the teacher reads aloud to a group of students and selects skills to teach incidentally, in the moment. Embedded phonics is typically part of a whole language or “balanced” literacy program and is implicit – skills are not taught in a pre-determined sequence and are not taught directly or explicitly. Although some children may learn to read using an embedded phonics approach, most children require a more structured approach and for struggling readers, systematic and direct instruction following a proven scope and sequence of skills is essential.

Vocabulary

Vocabulary refers to the words we must understand in order to comprehend spoken and written language. In the context of reading instruction, there are four types of vocabulary: listening, speaking, reading and writing. Listening vocabulary represents the words we understand in spoken language. Speaking vocabulary includes words we understand and use when we speak. Reading vocabulary are the words we must understand to comprehend written text. Writing vocabulary refers to the words we understand and use in written language. Vocabulary is key to reading comprehension –students cannot understand what they are reading unless they know the definitions of at least most of the words of the text.

Fluency

Fluency is the ability to read text with sufficient speed, accuracy, and expression to support comprehension. Fluent readers decode text accurately, quickly and effortlessly,  enabling them to focus more on comprehending the text they are reading instead of struggling with the mechanics of reading. 

Comprehension

Reading comprehension is the ability to understand and interpret what you read. In order to comprehend text, the reader must be able to read the words automatically, understand the meaning of the words they are reading and relate what they read to what they already know.

Learning Characteristics of Students with ID

A significant body of research has established that children with intellectual disabilities are predisposed to a characteristic pattern of developmental strengths and weaknesses that may influence the acquisition of literacy skills. This learning profile typically includes broad language deficits with relative strength in receptive language compared to expressive language. Deficits in working memory are common, with auditory working memory frequently more impaired than visual-spatial working memory. In addition, processing speed is typically an area of significant weakness. These language and memory deficits often markedly affect the development of phonetic and phonemic awareness skills, which has historically led to the belief that children with intellectual disabilities are “whole word readers” who cannot learn phonics. In fact, numerous studies have confirmed that the overwhelming majority of students with intellectual disabilities can learn to apply phonics rules to decode (read) and encode (spell). Further, research has shown that the same interventions that are successful with other struggling readers are effective for students with intellectual disabilities (Allor et al., 2010; Browder, et al., 2010; Burgoyne et al., 2012). 

Measuring Progress

Assessment in special education serves a number of purposes.  Data from assessments provide information on a student’s academic strengths and challenges and help determine whether a student has a disability that affects his or her ability to make progress in the general education curriculum. Assessment provides information to monitor a student’s response to intervention and provides teachers with information on how to improve their instruction.   

Types of assessment include: 

• Screening assessments are brief assessments used to determine what skills a child has and in what situations the child uses them. Screening assessments may also consider the next level of skills and information the child should be acquiring.

• Diagnostic assessments provide information about a student’s strengths and needs in specific areas; they may be norm-referenced or criterion referenced.

• Summative assessments are administered after an instructional period is over, such as at the end of a course or grade, and measure student performance against a pre-determined benchmark.

• Progress monitoring is a type of formative assessment that allows teachers to track student progress on an ongoing basis.

Unfortunately, many commonly used assessment measures and procedures do not accurately capture the present level of skill for students with intellectual disabilities. Standardized assessment, in particular, can fail to provide information necessary to develop and monitor an appropriate intervention. Standardized assessments require strict adherence to a protocol that dictates how questions are asked, how instructions are delivered and how feedback is offered. If, for instance, the instructions direct the child to print a “capital” letter and the child only knows the term “uppercase” letter, the child will fail that test item. In addition, standardized, norm referenced assessments may lack sufficient items at the lower level of the test (known as a floor effect) to provide a meaningful score for students with intellectual disabilities.

Most academic assessments rely on verbal responses, potentially underestimating the abilities of children with expressive language deficits. Timed assessments pose issues for students with slow processing speed, while the cognitive demands of certain assessments can overwhelm working memory. For example, a widely-used vocabulary measure requires students to select a word similar in meaning to a target word, necessitating the retention of the target word's meaning in short-term memory while evaluating response choices and choosing the closest match. A student with working memory deficits may understand the word's meaning but struggle with the multi-step nature of the task.

Accurate assessment of performance levels in students with intellectual disabilities may involve adapting existing assessments while preserving validity and reliability. Effective practices include dividing assessment sessions into shorter intervals to prevent overload, enlarging print or spacing text sections to enhance readability, and pre-teaching and practicing assessment procedures to mitigate potential misinterpretations of instructions.

What Can Attorneys and Advocates do to get an appropriate reading program for their clients with ID?

Start by requesting a comprehensive reading evaluation from a highly qualified reading specialist.  A sample letter is provided below. Then learn how to understand the reading evaluation. Then effectively advocate for the student. 

Here are some key tips…

1. Understand the basics of how children learn how to read. You MUST understand the recommendations of the National Reading Panel. Attorney Treimanis attended a 16-hour Orton-Gillingham methodology offered through COPAA and it changed the way she practiced law. If you do not understand the basics of how children learn to read, you can be bamboozled by the school district.

2. Carefully read the evaluation report provided by the school or the evaluator. This report should outline the assessment process, the specific tests used, and the results obtained. Don’t just jump to the table of scores or recommendations. Sometimes evaluators are told by school districts NOT to include recommendations. 

3. Familiarize yourself with the assessment tools used in the evaluation. Each test measures different aspects of reading skills, such as decoding, fluency, comprehension, or vocabulary. Research the specific tests to gain a better understanding of what they measure and how they relate to reading proficiency. Google each test and always read about the test on the publisher’s website. 

4. Look for scores and percentiles provided in the evaluation report. These scores indicate how the child's performance compares to the performance of other children of the same age or grade level. Ask (or have the parent ask) for an explanation from the evaluator or school if you have difficulty understanding the significance of these scores. You must understand the Bell Curve. Ask that the scores are not only standard scores but are also reported in grade and age equivalents. When you read a report (or attend an IEP meeting), keep your laminated bell curve next to you.   

5. Pay attention to the areas where the student performed well (strengths) and those where they struggled (challenges). Understanding these strengths and challenges can help guide interventions, target specific areas for improvement, and inform strategies to support the student's reading development.

6. Request examples or demonstrations of the specific reading tasks the student struggled with during the evaluation. This can help you understand the nature of the difficulties and visualize areas where additional support may be needed.

7. If you have any questions or need clarification on any aspect of the evaluation report, don't hesitate to encourage the parent to reach out to the evaluator or school. They can  request a meeting or follow-up discussion to gain a clearer understanding of the assessment results and their implications for their child's reading instruction. Evaluations are discussed at IEP meetings. The parent should meet with the evaluator ahead of time. Don’t start reading the evaluation at 10 pm the night before the IEP meeting. 

8. Encourage the parent to engage in discussions with their child's teachers, special education coordinator, or reading specialists to understand how the evaluation results will be used to inform their reading instruction. Have them ask for specific strategies, interventions, or accommodations that could be implemented at school and home to support the child's reading development. 

9. This may surprise you but remember that a special education teacher may not have expertise in reading. Speak to the reading specialist. 

10. Ask for the resume of anyone doing a reading evaluation on your student. Do not assume the “Literacy Coach” or special education teacher has appropriate credentials. If a teacher claims to be “trained” in Wilson, call the Wilson Academy and find out if they went to the introductory session or completed the certification to be permitted to teach the Wilson program. See https://www.wilsonlanguage.com. Similarly, a teacher cannot claim to be “Orton-Gillingham trained” unless they have achieved certain milestones. Some certifications can only be achieved after many years.  See https://www.ortonacademy.org. 

11. Take the initiative to research evidence-based interventions and instructional strategies that target the student's specific reading needs. This can help you better understand the types of interventions that may be effective and enable you to actively participate in IEP discussions with the school about appropriate interventions for the student.

12. Use the evaluation results to advocate for individualized support for the student. Discuss with the school team how the evaluation findings can inform the development of an individualized education plan (IEP) or a personalized reading plan that addresses the child's unique reading strengths and challenges.

13. Ask for Progress Monitoring! Inquire about how the child's progress will be tracked over time. Discuss the frequency of progress monitoring assessments and how the results will be shared with the family. This will allow you to stay informed about the child's reading growth and track their progress effectively. Request that progress monitoring is sent to the parents at regular intervals, allowing for consistent and transparent communication.

14. In advanced grades, it is imperative not to forgo reading instruction in favor of solely teaching "functional" skills like shopping and laundry. Reading stands as the most essential functional skill, critical for securing and maintaining employment, navigating transportation, understanding recipes and food labels, ensuring personal safety, comprehending labels, using social media, texting friends, and generally thriving in our print-based society. 

Sample Email Request for a Reading Evaluation

March 11, 2024

Nelly Koch, Special Education Teacher

Happy Elementary School

345 Main Street

Stamfire, CT  06906

Re:  Request for reading evaluation for Jac Doe

Sent via email attachment to Nelly.Koch@stamfirepublicschools.org

Dear Mx. Koch,

     My child Jac Doe is a 10-year-old student in the 5th grade, yet they read on a kindergarten level and has made minimal progress during their 6 years at Happy Elementary School. Despite their significant challenges in reading, Jac has never undergone a formal reading evaluation, nor has received any specialized assistance from a reading expert within the Stamfire Public Schools system.

     How will Jac's reading skills be raised to grade level?

     I am formally requesting a comprehensive reading evaluation conducted by a highly qualified reading specialist to determine what peer-reviewed, evidence-based reading program Jac needs to become a proficient reader. Given the substantial gap between Jac's reading abilities and those of their peers, I urge that this request be prioritized and addressed promptly.

Thank you.

Jaden R. Doe

JadenDoe@gmall.com

© COPAA (2024) 26th Annual COPAA Conference White Paper, Atlanta, Georgia. 

___________________

References

Allor, J. H., Mathes, P. G., Jones, F. G., Champlin, T. M., & Cheatham, J. P. (2010). Individualized research‐based reading instruction for students with intellectual disabilities: Success stories. Teaching Exceptional Children, 42(3), 6–12.

Bradford, S., Shippen, M., Alberto, P., Houchins, D., & Flores, M. (2006). Using systematic instruction to teach decoding skills to middle school students with moderate intellectual disabilities. Education and Training in Developmental Disabilities, 41, 333–343.

Browder, D., Ahlgrim-Delzell, L., Flowers, C., & Baker, J. (2012). An Evaluation of a Multicomponent Early Literacy Program for Students With Severe Developmental Disabilities. Remedial and Special Education, 33(4), 237–246. https://doi.org/10.1177/0741932510387305

Browder, D. M., Hudson, M. E., & Wood, A. L. (2013). Teaching Students with Moderate Intellectual Disability Who Are Emergent Readers to Comprehend Passages of Text. Exceptionality, 21(4), 191–206. https://doi.org/10.1080/09362835.2013.802236

Burgoyne, K., Duff, F. J., Clarke, P. J., Buckley, S., Snowling, M. J., & Hulme, C. (2012). Efficacy of a reading and language intervention for children with Down syndrome: A randomized controlled trial: A TA-delivered intervention for DS. Journal of Child Psychology and Psychiatry, 53(10), 1044–1053. https://doi.org/10.1111/j.1469-7610.2012.02557.x

Eunice Kennedy Shriver National Institute of Child Health and Human Development, NIH, DHHS. (2000). Report of the National Reading Panel: Teaching Children to Read: Reports of the Subgroups (00-4754). Washington, DC: U.S. Government Printing Office.

Kutner, M., Greenberg, E., Jin, Y., Boyle, B., Hsu, Y., & Dunleavy, E. (2007). Literacy in Everyday Life: Results From the 2003 National Assessment of Adult Literacy. (NCES 2007–480). U.S. Department of Education: National Center for Education Statistics.

Lemons, C. J., Allor, J. H., Al Otaiba, S., & LeJeune, L. M. (2016). 10 Research-Based Tips for Enhancing Literacy Instruction for Students With Intellectual Disability. TEACHING Exceptional Children, 49(1), 18–30. https://doi.org/10.1177/0040059916662202

Ricci, L. A., & Osipova, A. (2018). Positives, Potential, and Preparation: Pre-service Special Educators’ Knowledge About Teaching Reading to Children with Down Syndrome. Exceptionality Education International, 28(2), 20–32. Education Source.

Zakariya, S. B. (2015). Learning to read, reading to learn: Why third grade is a pivotal year for mastering literacy. Alexandria, VA: Center for Public Education. Retrieved from http://www.centerforpubliceducation.org/research/learning-read-reading-learn-glance

The IEP process can sometimes resemble the classic David and Goliath scenario, where parents often feel that their concerns and requests are not receiving the attention they deserve. As professional advocates, one of the most effective ways to enhance our client relationships is to educate parents on the art of documenting their concerns and requests in writing. This ensures that their perspective is integrated into the IEP process. When we examine the evaluations and IEP documents, we frequently find that they predominantly reflect the school's viewpoint, despite federal law mandating the inclusion of a parent's concerns. So, the question is, how do we bridge this gap?

Parents are, after all, the foremost experts on their child's needs, and they will be the primary advocates for their child throughout their lifetime.  I frequently hear parents saying, "I told them I didn't think it was a good idea to do xyz," or "I requested a paraeducator," or "I declined that request, but they proceeded anyway." To these concerns, I respond, "Did you document it in writing?" And then, I invariably receive a familiar look - the "Oh no, I missed my opportunity" expression.

The federal law protecting the rights of students with disabilities also makes a space for advocates in conversation during IEP meetings. As professional advocates we should be educating parents on the importance of written communication with the school. We can do this by modeling effective written communication skills through letter writing, emails, and parent input forms.

Own your power - I do, we do, you do

As an advocate I will often write for a parent when we first start a advocate-client relationship. I will often teach effective written communication through an “I do, we do, you do” strategy. First, I write a letter or email for them, collecting the important facts, data, and information. Then, the parent makes changes to the letter to match their own style and adds details about their child. Then the parent will edit it for tone and specific facts about their child. Next, the roles switch…the parent, with guidance from me, will use related facts, data, and research to draft a letter or email. I will edit it before they send it off to the school. Eventually the goal is to get the parents to write independently using the strategies I’ve taught them.

Influence your reader

Many times, when we write something to the school, we feel emotional, frustrated, or even in a crisis. These strong emotions can affect our writing negatively. The main purpose of writing in special education is to persuade the reader to help our child or client. To achieve this, we need to be objective, tell our story without being overly emotional, and provide evidence to support our concerns and requests.

Get what a child needs at the lowest level of advocacy

Writing is the most effective way to get what a child needs at the lowest level of advocacy. The statistics are grim for parents at the due process level. When parents take school districts to court they lose 80% of the time. It’s also expensive and emotionally draining. When our child or client is not getting what they need we need to think about what we can do at the school level to make a positive change. We also need to remember that the school team and the parent knows the child best; higher levels of dispute

Writing is the most powerful way to help a child get what they need, especially at the earliest stage of advocacy. When it comes to due process, the odds are not in favor of parents; they lose 80% of the time when they take school districts to court. It's not just a legal battle but also a costly and emotionally draining process.

When our child or client isn't receiving the support they require, it's essential to consider what we can do at the school level to bring about positive change. We must also keep in mind that the school team and the parents are the ones who know the child best. Pursuing higher levels of dispute resolution like state complaints and due process takes us further away from the people who truly understand and care about our child.

By using effective writing techniques, we can make significant progress in meeting a child's needs with minimal emotional and financial strain.

Remember – you must get it in writing, or it did not happen!

________________

You may wish to check out the Learning Path on this subject in COPAA's Learning Center.

© COPAA (2024) 26th Annual COPAA Conference White Paper, Atlanta, Georgia. 

By Simone Chriss, Esq. and Jodi Siegel, Esq.

Southern Legal Counsel, Inc., Gainesville, FL

I. OVERVIEW

In 2023, there were more than 510 anti-LGBTQ+ bills introduced in state legislatures across the U.S., tripling the number introduced the year before, with nearly half of U.S. states passing and signing anti-LGBTQ legislation into law. There were more than 233 bills filed in 2023 targeting education, each designed to make schools a less safe, affirming, and inclusive place for LGBTQ+ students and teachers. These measures include prohibiting discussions of “sexual orientation and gender identity” (i.e., “Don’t Say Gay” laws), banning books reflecting LGBTQ+ individuals and lived experiences, denying students access to bathrooms, restricting or banning the use of affirmed pronouns (by students and teachers), denying transgender youth the right to play school sports, and more. Numerous studies and surveys have demonstrated that, even prior to the onslaught of new anti-LGBTQ+ bills and laws, the majority of LGBTQ+ students felt unsafe and/or unwelcome at school. This leads to poor academic performance, dropping out, missing school, and other negative educational outcomes. As schools become more hostile climates for LGBTQ+ students, the need for high quality advocacy to ensure access to a safe and affirming learning environment for these vulnerable youth has never been more important. In the face of state laws that allow, and in some cases mandate, anti-LGBTQ+ discrimination, federal law – including the federal special education laws - can be a powerful tool for obtaining critical supports and accommodations necessary for LGBTQ+ students to thrive in the school environment. Some transgender students may be eligible for special education services because of their diagnosis of gender dysphoria, and some LGBTQ+ students will qualify due to the anxiety, depression and psychological distress they face as a result of not having their identities affirmed and respected at school. 

This paper covers the basics for providing culturally competent services and advocacy to LGBTQ+ youth, and will equip participants with the language, knowledge, and practical skills necessary to provide affirming, high quality services to this underrepresented population. This paper discusses the legal landscape for LGBTQ+ student rights, recent anti-LGBTQ+ attacks, and relevant laws that protect LGBTQ+ students, including the IDEA and Section 504, Title IX, FERPA, the ADA, the 1st Amendment, and the 14th Amendment’s Equal Protection and Due Process Clauses. 

II. LGBTQ+ CULTURAL COMPETENCY

Key Terms and Concepts 

• “LGBTQ+” is an acronym used to describe lesbian, gay, bisexual, transgender, queer or questioning persons or the community. The “+” (plus) acknowledges that there are many other terms that folks might use to describe their sexual orientation and/or gender identity/expression.

• “Sexual Orientation” is oftentimes incorrectly conflated with gender identity or expression, but is an entirely separate and distinct concept. Sexual orientation refers to an inherent or immutable enduring emotional, romantic or sexual attraction to other people (men, women, both, etc.).  

• “Gender Identity” refers to a person’s intrinsic sense of being male, female, or an alternative gender. Gender Identity is how people view themselves. 

• “Gender Expression” refers to the external appearance of one's gender identity, usually expressed through behavior, clothing, haircut or voice, and which may or may not conform to socially defined behaviors and characteristics typically associated with being either masculine or feminine.

• “Transgender” (Trans) is an umbrella term that describes a wide range of people whose gender identity and/or gender expression differ from their sex assigned at birth and/or the societal and cultural expectations of their sex assigned at birth. It is important to note that this term is an adjective. 

• “Cisgender” refers to people who have a gender identity that matches their sex assigned at birth (i.e., non-transgender).

• “Sex assigned at Birth” refers to the legal designation of sex (male or female), made at birth, usually based on the appearance of the external genitalia. For most people, gender identity and expression are consistent with their sex assigned at birth, but for transgender and gender-nonconforming individuals, their gender identity or expression differ from their sex assigned at birth.

• “Non-Binary” describes genders that do not fall into one of the two categories on the gender binary - male or female. Some non-binary individuals also identify as transgender, but not all do. 

• “Gender Non-Conforming” is a term for people whose gender expression differs from stereotypical expectations, such as “feminine” boys, “masculine” girls, and those who are perceived as androgynous. 

• “Intersexuality” (now called Disorder of Sex Development)

• “Gender Dysphoria” is a medical condition codified in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM-V) and the World Health Organization’s International Classification of Diseases (ICD-10). People diagnosed with gender dysphoria have an intense and persistent discomfort with the primary and secondary sex characteristics of their sex assigned at birth. Gender dysphoria is not a mental illness, but rather refers to the severe and unremitting emotional pain that can result from this incongruity. Not every trans or gender nonconforming individual experiences Gender Dysphoria.

The Realities for LGBTQ+ Individuals

Roughly 13.9 million adults in the U.S. identify as LGBT, and approximately 1.3 million adults identify as transgender. More than 1.9 million youth (ages 13-17) identify as LGBT, and approximately 300,000 as transgender. These numbers are likely vast underestimations, given that these are only individuals who self-disclose and many do not “out” themselves for fear of discrimination. 

LGBTQ+ students represent one of the most vulnerable, underserved, and targeted populations. Among LGBTQ+ youth, nearly 30% have experienced homelessness (with this number increasing to 36% for multiracial LGBTQ youth). LGBTQ+ youth experience discrimination, victimization, and other unique challenges at disproportionate rates. For example, 73% of LGBTQ+ youth have experienced discrimination based on their sexual orientation or gender identity, and 36% reported being physically threatened or harmed due to their sexual orientation or gender identity. LGBTQ+ youth in this group attempt suicide at twice the rate of their LGBTQ+ peers who did not experience such discrimination. The wave of anti-LGBTQ+ and particularly anti-transgender legislation has exacerbated the mental health crisis among LGBTQ+ youth, resulting in 93% of transgender and nonbinary youth experiencing fear about their basic human rights such as access to medically necessary healthcare, access to bathrooms, the right to a safe school environment, and more. Id. In the past year, 45% of LGBTQ+ youth seriously considered attempting suicide, 73% reported experiencing anxiety, and 58% reported experiencing depression; however, 60% of LGBTQ+ youth who wanted mental health care in the past year were not able to access it. Id.

Studies have demonstrated that a mitigating factor, and a significant protective measure, for LGBTQ+ youth is having a safe and inclusive school environment. For example, LGBTQ+ youth who find their school to be affirming report lower rates of attempting suicide. Additionally, LGBTQ-affirming policies and practices in schools can decrease the likelihood of LGBTQ+ youth dropping out, experiencing poverty and homelessness, and can increase the likelihood of graduation, skill acquisition, employment, increased earning capacity, and access to housing. This is critical to ensure long-term wellbeing of transgender individuals, given that 90% of transgender adults experience harassment, discrimination, and mistreatment at work; 29% live in poverty (two times the national rate of 14%); the unemployment rate is 15% (three times the national rate of 5%); and approximately 30% experience homelessness.

When looking specifically at the experiences of transgender students in U.S. schools, the majority (77%) who were “out” or who were perceived as transgender while in K-12 experienced some form of mistreatment, including verbal harassment (54%), physical attack (24%), and sexual assault (13%). Further, 17% experienced such severe mistreatment that they left school altogether as a result.

Intersecting Systems of Oppression and Intersectional Identities

Statistics worsen when other intersectional identities are taken into account. Intersectionality is defined as “the complex, cumulative way in which the effects of multiple forms of discrimination [such as racism, sexism, classism, and ableism] combine, overlap, or intersect especially in the experiences of marginalized individuals or groups.” (Merriam-Webster Dictionary). Oppressions based on gender identity and sexual orientation, as well as disability, race, ethnicity, class, immigration status, religion, mental health status, and age, form a system of interlocking oppressions embedded in the dominant culture and social institutions in a pervasive way that is often invisible and affects everyone.

The Importance of Accurate Identification

A large contributor to the high rates of discrimination against the transgender community, particularly in the areas of education, employment, housing, and access to public accommodations, is a lack of accurate identification documents (drivers’ license, state ID, U.S. passport, birth certificate, Social Security record, school records, medical records) that reflect a person’s name and gender marker. 

The process of changing a legal name in most states is complicated, involving a lengthy petition, an expensive filing fee, a fingerprint requirement for a background check, and a court appearance at a hearing. Each of these, separately and cumulatively, are obstacles, and sometimes create insurmountable barriers, for many trans individuals who wish to change their legal names to reflect their true identities. Further, there are a series of additional obstacles to updating name and gender markers on identification documents. The process of updating gender marker on federal documents requires a physician’s letter attesting to the fact that the individual has undergone “appropriate clinical treatment for gender transition.” This alone requires having access to health care, transportation, and financial resources to pay for transition related care which is oftentimes not covered by insurance. In some states, it is impossible to update the gender marker on an individual’s birth certificate, which severely impacts trans students in regard to their education and treatment in school. If a student is unable to obtain a birth certificate reflecting their gender identity, oftentimes the school will refuse to recognize that student’s gender identity and to treat them in accordance. Being referred to by a name and pronouns that do not align with the students’ gender identity, being denied access to bathrooms and facilities that align with the students’ gender identity, and other such daily obstacles to accessing the learning environment can create inordinate barriers to academic achievement and social/emotional development for transgender youth.  

III. OBSTACLES TO INCLUSION IN THE LEARNING ENVIRONMENT 

     FOR LGBTQ+ STUDENTS

The most common and pervasive forms of discrimination faced by LGBTQ+ students in school systems include bullying and harassment, inadequate responses to anti-LGBTQ+ bullying by school personnel, dead-naming and mis-gendering (for trans students), and discriminatory policies surrounding access to bathrooms and sex segregated facilities, lack of inclusive books and materials, and participation in extracurricular activities. When students experience these forms of discrimination at school, learning can take a backseat to the constant state of fear and anxiety surrounding the non-affirming environment. Unsurprisingly, students in unsupportive school environments are less likely to succeed academically, and are at a heightened risk for issues like school absences, substance use and emotional distress. 

Even before the recent onslaught of new laws and policies targeting LGBTQ+ students and teachers, and the erosion of protections for LGBTQ+ students inherent in policies like the infamous “Don’t Say Gay” laws, a staggering 81.8% of LGBTQ+ students felt unsafe at school. In the GLSEN National School Climate Survey, 83.1% of LGBTQ+ students experienced in-person harassment or assault (76.1% in-person verbal harassment; 31.2% physical harassment/assault; 53.7% sexual harassment). Id. LGBTQ+ students who experience such discrimination and mistreatment in school are more likely to miss school, less likely to pursue their education, and they report lower levels of self-esteem and belonging and higher levels of depression. Id.

There is proven harm associated with having a person’s basic humanity debated. The 2023 U.S. National Survey on the Mental Health of LGBTQ Young People found that nearly 1 in 3 LGBTQ+ young people said their mental health was poor most of the time or always due to anti-LGBTQ policies and legislation. This survey also demonstrated that nearly 2 in 3 LGBTQ+ young people said that hearing about potential state or local laws banning people from discussing LGBTQ people at school made their mental health a lot worse. Id. In state legislatures and the media, anti-LGBTQ+ advocates argue that LGBTQ-inclusive curricula and transgender-inclusive school policies are inherently “inappropriate” or harmful for minors. The message that this language sends to LGBTQ+ youth is tremendously damaging. Elected officials and others involved in these debates frequently use harmful language, such as describing LGBTQ+ people as “groomers” and “pedophiles” - language that has deep and painful roots in the movement to strip away rights, stigmatize, and even criminalize LGBTQ+ people. 

The introduction of measures such as the “Don’t Say Gay” law, which first passed in Florida in 2022, have wreaked havoc for LGBTQ+ youth, particularly in southern states where what sparse protective policies and procedures did exist to affirm and support LGBTQ+ youth have since been rescinded or rolled back in many school districts. For example, following the passage of the law in Florida, school districts across the state (some voluntarily, and some after being compelled by the state Department of Education) have revoked, rescinded, or rolled back their LGBTQ+ Critical Support Guides that had been put in place to ensure LGBTQ+ students feel safe, included, and welcome at school. 

IV. THE LEGAL LANDSCAPE FOR LGBTQ+ STUDENTS’ RIGHTS

Like all public-school students, LGBTQ+ students have rights in the education setting that can be utilized to ensure access to a safe and affirming learning environment, including Title IX, Equal Protection, Due Process, the Family Education Rights and Privacy Act (FERPA), the First Amendment, and – when the student qualifies based on presence of a disability - the IDEA, Section 504, and the ADA. These federal laws can provide protections for LGBTQ+ students even in states with harmful new anti-LGBTQ+ legislation, and can be wielded as a tool to obtain critical supports and accommodations to allow LGBTQ+ students to thrive in the learning environment. Some states protect LGBTQ+ students more explicitly than federal law, through statutes, state regulations, or guidance. Some states include a sexual orientation, gender identity, gender expression, or even trans status as a protected class under state antidiscrimination and/or human rights laws or within the state education laws. However, the recent trend in anti-LGBTQ+ legislation has led to many states rolling back protections and implementing laws that permit or require discrimination against LGBTQ+ individuals. Check your state law. 

Legislation Impacting LGBTQ+ Students’ Rights

In 2023 alone, 17 states enacted more than 30 new LGBTQ-related education laws, which include LGBTQ+ curriculum-related laws that censor discussion of sexual orientation or gender identity, and bans regarding transgender students’ access to bathrooms and ability to participate in sports. Currently, 24 states prohibit trans students from participating in school sports consistent with their gender identity; 9 states have banned trans people from using bathrooms consistent with their gender identity in K-12 schools (and, in some states, also bathrooms on university and college campuses and in all government-owned buildings); 23 states have banned best practice, evidence-based medical care for the treatment of gender dysphoria for trans youth; and 5 states have enacted “forced outing” laws that require outing trans youth in schools (and another 6 states have laws that promote outing trans students).

Studies and data have proven that there are significant associations between school-related protective factors and LGBTQ+ students’ risk of suicide. The 2023 U.S. National Survey on the Mental Health of LGBTQ Young People suggests that attending a school with a GSA or other similar club, learning about LGBTQ people and experiences, having access to a gender-neutral bathroom, and having teachers who respect their pronouns are all associated with lower suicide risk among LGBTQ students in middle and high school. The survey found that LGBTQ+ middle and high school students who had access to one of four school-related protective factors — gender-neutral bathrooms, LGBTQ-inclusive history lessons, a gender-sexuality alliance (GSA) club or teachers that respect their pronouns — had 26% lower odds of attempting suicide. Id.  

Until the age of 18, most children spend a significant portion of their waking hours in school, and some LGBTQ+ students do not have an affirming home environment, making it even more imperative for schools to be safe and inclusive spaces for LGBTQ+ students. An affirming school environment can improve their mental health and reduce their risk of suicide; however, most LGBTQ students (68%) reported feeling unsafe at school because of their sexual orientation, gender identity, or gender expression.

Further, the current torrent of anti-LGBTQ+ state laws being implemented and introduced nationwide can prevent schools from offering the protective factors that we know improve the lives and educational opportunities of LGBTQ+ students (such as creating curriculum, offering student clubs that affirm LGBTQ young people, implementing policies around respecting pronouns, and providing gender-neutral bathrooms), despite the protective associations they have for LGBTQ+ students’ mental health. Id. Hundreds of bills being introduced in state legislatures stand in direct contradiction to evidence and other scholarship that have documented the relationships between the affirmation of LGBTQ+ identities in schools and better mental health among LGBTQ+ students.

LGBTQ+ Curriculum & Censorship and “Don’t Say Gay” Laws

LGBTQ+ curriculum and censorship laws, including laws commonly referred to as “Don’t Say Gay,” can have the effect of silencing and erasing LGBTQ+ young people and families from the school environment. Provisions in such laws include restrictions on curriculum parental notification laws, which require parents to be notified in advance of any LGBTQ-related curricula and allow parents to opt their children out of those classes (or require them to opt-in); prohibiting the teaching of human sexuality; explicit censorship of teachers and staff from discussing LGBTQ+ people or issues throughout all curricula; and book banning that results in lack of availability of literature reflecting diversity and lived experience, which is an important protective factor for LGBTQ+ students.

Such laws deter LGBTQ+ students, students with LGBTQ+ family members, and LGBTQ+ teachers from acknowledging who they are and advocating for themselves and their community. They send a message to students with LGBTQ+ members that their family is not worthy of acknowledgment and discussion. Further, these laws erode the ability of LGBTQ+ students to obtain affirming support services in school, undermine protections from bullying based on their identities and the structure of their families, and deprive them of literature and resources vital to their development, education, and mental health. Laws like these are reminiscent of those that emerged in the late 1980’s in the midst of the HIV/AIDS crisis, which were referred to as “No Promo Homo” laws (compelling states to refer to homosexuality as criminal, dangerous, unacceptable, and immoral, and prohibiting states from “promoting” or discussing homosexuality in positive or neutral terms).

Exclusion from Sex-Segregated Spaces and Name/Pronoun Laws

For trans students in particular, laws that exclude them from the bathroom, facilities, activities, or sports team aligned with their gender identity, and laws that prohibit them from using their affirmed name and pronouns, can have profound and lasting negative impacts on their health and well-being, in addition to taking a devastating toll on their education. Living in accordance with their gender identity (as opposed to their sex assigned at birth) can be a critical component to their physical and mental health, well-being, and ability to meaningfully participate in society. This is often referred to as “transition” – and can include social transition (expressing gender identity through clothing, haircut/style, name and pronouns, etc.), medical transition (accessing gender-affirming medical treatment such as puberty blockers or hormone therapy), and legal transition (amending legal name and gender marker on official identification documents and records). Every person is different and their transition is unique and individualized. 

Children typically begin expressing their gender identity between two and four years old. Am. Psychiatric Ass’n (2013). Around this age, trans children often express their cross-gender identification to their family members and caregivers through statements like “I have a girl brain and boy body,” or vice versa, and behavior like dressing in clothing and engaging in activities consistent with their gender identity. Even at that young age, trans children are often insistent and persistent about their gender, differentiating their behavior from a “phase” or imaginative play.

With the goal of preventing or alleviating the distress that trans youth often experience, healthcare providers recommend that the child “socially transition” and live consistently with their gender identity, including dressing, interacting with peers and using names and pronouns consistent with their identified gender. APA Guidelines (2015). For most trans youth, social transition provides immense relief, allowing them to grow and achieve socially, emotionally and academically. Medical transition is not prescribed for young children; however, upon reaching puberty, hormone blockers (known as “puberty deferment”) can be beneficial to trans youth who do not wish to develop the secondary sex characteristics associated with their assigned at birth sex. Preventing the development of secondary sex characteristics, along with allowing the youth to socially transition and live as their true authentic selves, can significantly reduce the depression, anxiety, and psychological distress that many trans youth experience, and can mitigate the potential need for future more invasive medical intervention. 

Laws that exclude trans students from bathrooms, facilities, and sports teams, and require the use of name and pronouns aligned with their sex assigned at birth prevent them from living in accordance with their gender identity. This effectively bans social transition, despite being deemed medically necessary for many by their treating providers. 

Since Arkansas became the first state to do so in 2021, a total of 23 states have adopted bans excluding trans students – most focusing on trans girls and women – from participating on sports teams in accordance with their gender identity. Most of these include both K-12 schools and colleges. Studies have demonstrated, however, that participation in sports results in positive outcomes such as social, emotional, and physical development, psychological well-being, and decreases in depression, hopelessness, and suicidal ideation. Participation in athletics and extracurricular activities has been shown to result in increases in GPAs, school engagement and attendance, and to facilitate a greater sense of belonging at school for transgender students. Conversely, we know that exclusion from school sports compounds already poor mental health among trans students. Further, singling trans girls out by forcing them to play on the boys' team makes them a target for harassment and violence by other students, including sexual assault, which trans girls are already at an increased risk for. See Gabriel R. Murchison et al., School Restroom and Locker Room Restrictions & Sexual Assault Risk Among Transgender Youth, 143 Pediatrics 1, 5 (2019).

Title IX explicitly prohibits sex discrimination in athletics, clubs, and extracurricular activities: "[n]o person shall, on the basis of sex, be excluded from participation in, be denied the benefits of, be treated differently from another person or otherwise be discriminated against in any interscholastic, intercollegiate, club or intramural athletics...." 34 C.F.R.§ 106.41(a). Currently, temporary injunctions are blocking enforcement of the trans sports bans in Arizona (Doe v. Horne, July 2023), Idaho (Hecox v. Little, Aug 2020), West Virginia (B.P.J. v. West Virginia, July 2021), and Utah (Roe v. Utah HSAA, Aug 2022), and a court order in Montana (Barrett v. Montana, Sept 2022) permanently blocked the state's ban as it applies to higher education, but not K-12. The case law being established illustrates that common “concerns” about the inclusion of trans students in athletics that justify the bans (potential injury to, or disadvantage for, cisgender girls and women) are unfounded and not based on evidence, science, or any legitimate or materialized issues. In fact, these same concerns were raised and, similarly rejected by courts, in justifying exclusions of cisgender (non-transgender) girls from cisgender boys’ teams. See, e.g., Brenden v. lndep. Sch. Dist., 477 F.2d 1292, 1299-00 (8th Cir. 1973) (rejecting that physiological differences between males and females make it impossible for them to equitably compete in athletic competition). The harms associated with these bans have disproportionate impacts on girls of color (potentially cisgender and transgender girls alike), who have long been subject to additional racially-based and sex-based stereotypes deeming them “overly strong” and more “masculine.”

With regard to clubs, groups, and extracurricular activities, in addition to the protections under Title IX regarding “clubs and extracurricular activities,” the Equal Access Act of 1984, rooted in principles of equal treatment and freedom of expression, requires schools to provide equal access for student-initiated groups and extracurricular clubs of all types. See 20 U.S.C.§ 4071. This means schools cannot prohibit students from creating LGBTQ+ groups or clubs, commonly known as "GSA's" if they allow any other non-curricular student-initiated clubs to exist. 

Finally, Title IX requires schools to provide trans students equal access to educational programs and activities, even in circumstances where others (i.e., students, parents, or community) raise objections or concerns. Neither a school’s interest in providing privacy for its students, nor another student or parent’s discomfort with a trans student in the restroom, relieves schools of the obligation to provide all students access to the restrooms and facilities that match their gender identity.

Legal Protections for LGBTQ+ Students 

The Rights of LGBTQ Students: 

• The right to a safe & affirming learning environment 

• The right to use, and be consistently addressed with, the name and pronouns aligned with the students’ gender identity (“affirmed” or “preferred” name and pronouns)

• The right to freedom of speech & expression 

• The right to access sex-segregated spaces, including bathrooms and locker rooms, that feel safe and affirming for the student 

• The right to privacy, including informational privacy and bodily autonomy 

• The right to a school environment free from discrimination, harassment, & bullying 

Sources of Protections for LGBTQ+ Students: 

• Title IX of the Education Amendments of 1972

• The Equal Protection and Due Process Clauses of the 14th Amendment 

• The First Amendment 

• The Family Education Rights and Privacy Act (FERPA)

• The Americans with Disabilities Act (ADA)

• The Individuals with Disabilities Education Act (IDEA) 

• Section 504 of the Rehabilitation Act 

V. ADVOCACY TIPS FOR LGBTQ+ YOUTH

Utilizing the IEP and 504 Processes

Many trans students need an advocate to fight for their right to access a free appropriate public education. Trans students across the country are being denied access to schools through myriad obstacles, whether on the basis of their gender dysphoria or another disability, or as a result of the effects of a discriminatory school environment. For instance, when students are denied access to the bathroom, they are effectively excluded from school; when students are being dead-named and mis-gendered, they may experience emotional and psychological distress preventing them from learning. These issues have been exacerbated by the recent tidal wave of anti-LGBTQ+ legislation eroding the rights of students in myriad aspects of their school experience.

Trans individuals are disproportionately diagnosed with one or more disabilities (39%, compared to 15% of the U.S. population), and trans people are 6x as likely to have serious difficulty concentrating, remembering, or making decisions because of a physical, mental, or emotional condition. While gender identity issues are not in and of themselves disabilities, this population is in vital need of protection in educational settings. Given the exorbitantly high rates of depression, anxiety, and emotional/psychological distress that many trans teens experience, some many qualify under an emotional disability eligibility or otherwise qualify for a 504 plan to allow meaningful access to school. Gender Identity and Special Needs, Special Education Law Blog (2017).

Once eligible, the IDEA requires that schools make available a free appropriate public education through special education and related services. 20 U.S.C. § 1412(a)(1). The IDEA requires public schools create an Individual Education Plan (IEP) for every child receiving special education services. 20 U.S.C. § 1414(d). An IEP can provide the positive supports and accommodations necessary to provide trans students meaningful access to school when it is otherwise being denied. 

Section 504 is a civil rights act for persons with disabilities, which provides that persons with disabilities cannot be denied benefits or discriminated against in any program receiving federal financial assistance. It prohibits the denial of opportunity to participate in or benefit from school’s aid, benefit or service. 29 U.S.C. § 794. Section 504 does not specifically list disabilities for eligibility, but defines disability as an impairment that substantially limits one or more major life activities.  Learning is a major life activity. Mental health diagnoses associated with one’s anxiety is one way to meet 504 eligibility. 

If a trans student is eligible under the IDEA or Section 504, it can be helpful to utilize an IEP or 504 Plan to ensure that bathroom access, correct name and pronoun usage, and other essential needs of students are met. This is so even in states where explicit bans exist regarding use of affirmed name, pronouns, and bathrooms aligned with gender identity. Special education plans are particularly helpful when physical, emotional, and/or psychological exceptionalities are present during the student’s transition process. Not all transgender students need an IEP or a 504 Plan. If the child is adjusting well, is being treated in an affirming manner, has no exceptionalities, is achieving academic benchmarks, and the school is treating the student appropriately, exploring IEP and 504 plans is likely not necessary. 

The first question is eligibility under the IDEA or Section 504. If already eligible for a non-trans-related disability, IEPs and 504 Plans can be used to add supportive services for trans-related issues. If not yet eligible, a trans student may qualify under emotional disability or other health impairment due to the anxiety, depression and psychological distress resulting from not having their gender identities affirmed and respected. 

As with any other student being assessed for qualification for an IEP or Section 504 Plan, an evaluation is required. To ensure accurate results, it must be conducted in a non-discriminatory manner, which for trans students would affirm and respect gender identity. 20 U.S.C. § 1414(b)(3)(A)(1). In addition to simply referring to the student by the name and pronouns with which they identify, the assessor should have an understanding of gender identity and the issues faced by trans youth and should be culturally competent in this area. Eligibility under the IDEA is guided by specific categories defined by law, but eligibility under Section 504 is less stringent. Also, under Section 504, the school cannot take into consideration the positive effects of “mitigating measures,” which include reasonable accommodations. 42 U.S.C. § 12102(4)(E)(i). For example, a trans student whose school has implemented the necessary accommodations to affirm their gender identity (i.e., access to appropriate bathrooms) may still be eligible for a 504 plan because without such measures, the student would experience debilitating distress (i.e., anxiety, depression, school aversion) which would impede the student’s learning abilities.

Once eligible, services do not have to be solely academic; they can include social and emotional well-being and development. The purpose is to provide the supports, accommodations, and services to help students who may be struggling emotionally, socially, or academically so that they can remove obstacles and succeed in school. Through an IEP or 504 Plan, schools can be required to provide accommodations that may otherwise be denied, such as using the student’s chosen name and pronouns. For example, if a student suffers from anxiety that is made worse when their gender identity is not affirmed, one accommodation might be to require that school staff respect the student’s gender identity consistently. Other accommodations can include stress breaks throughout the day to reduce anxiety caused by being in the school environment, and requiring access to the bathroom and facilities that match the student’s gender identity, among others. While not ideal, it may be beneficial to provide homebound or online services for a time-limited period if the trans student is having serious school phobia issues due to non-acceptance by peers or teachers. It is important to advocate for a behavior plan that addresses non-attendance to get the student safely back to school. Parent training and school counseling are other pertinent related services to seek.

Amending School Records

The typical practice in most schools’ student information systems is to use the student’s name and gender marker as reflected on their birth certificate. As a result, when a student transitions, there are myriad ways in which the student’s dead name and/or sex assigned at birth may inadvertently appear on documents generated by those systems. Students’ privacy and transgender status can be exposed through enrollment, attendance, assigning grades and communicating with parents and caregivers. For students who are publicly transitioning or who are open about their transition, this may be harmless, but for students who are privately transitioning and wish to keep their transgender status private, these exposures can make school a hostile or unsafe environment that they may seek to avoid. Other common problem areas include after-school programs, school pictures, yearbooks, school ID cards, email list serves, library and lunch cards, and standardized tests. Even in the most supportive of school settings, these seemingly harmless oversights can cause severe trauma for a trans student. When advocating for a trans student in educational proceedings, it is important to make sure the child’s name and gender marker are updated on all of these records.  

The Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. § 1232g; 34 C.F.R. §§ 99.00 et seq. is a federal law that protects the privacy of student educational records. Under FERPA, a school must consider the request of an eligible student or parent to amend information in the student’s education records that is “inaccurate, misleading, or in violation of the student’s privacy rights.” If the school does not amend the record, it must inform the requestor of its decision and of the right to a hearing. 

Advocacy tips:

• File a request to amend the information in the student’s education records (name, gender marker, or both) on the basis of the information being inaccurate, misleading, or in violation of the student’s privacy rights. 

• What is “misleading?” - When a trans person legally changes their identity documents to reflect who they are on official state or federal government documents, it is misleading for a school to maintain the former records. 

• How does it violate the student’s “privacy?” -  Students have the right to keep their transgender status private. By keeping their former name and gender marker on their educational records, the school is essentially “outing” the student to anyone who looks at these records. It is “beyond a doubt” that transgender status is “excruciatingly private and intimate” for those who wish to keep it private. Powell v. Schriver, 175 F.3d 107, 111 (2d Cir. 1999).

File a FERPA Complaint:

• If the advocacy tips above are unsuccessful in compelling the school district to act, file a FERPA Complaint with the U.S. Dep’t of Educ.’s Student Privacy Policy Office at https://studentprivacy.ed.gov/file-a-complaint, which reviews, investigates and processes complaints of alleged violations of FERPA. 

When a student has completed a legal name change, the school should update all of that student’s records (current and past) to reflect that legal name change. However, even if the student has not yet completed a legal name change, the school can use a student’s chosen name in place of their legal name in most places. Unfortunately, the typical requirement is that the legal name appear in the students’ official transcript and on standardized tests, but schools can use the students’ chosen name in all other places. The gender marker is oftentimes more complicated to update in school records than the name, as in some states there is no legal petition process to change a gender marker like there is for a name change. One useful tip is to have the child obtain an amended U.S. Passport if they cannot amend their Birth Certificate, and request that the school update the students’ official records to reflect the legal gender as reflected on the passport. Visit www.FloridaNameChange.org for more information on amending government-issued identification documents, including U.S. Passport.

Accommodations That Provide Trans Students Access to Learning Environment

As discussed previously, not every trans student will have a diagnosis of gender dysphoria (GD), as not every trans individual experiences distress caused by the discrepancy between their gender identity and sex assigned at birth that rises to the level of a formal diagnosis. While accommodations can be easier to obtain from schools when a student has an official diagnosis (GD or otherwise), it is not a requirement. With or without a diagnosis, it can be helpful to have the student’s therapist or doctor write a letter explaining why affirming the student’s gender identity at school is medically necessary and is a part of their treatment. The IDEA and Section 504 are useful tools for protecting the rights of, and providing services and accommodations for, trans students who are experiencing significant emotional/psychological distress, anxiety, and/or depression as a result of not having their gender identity affirmed. 

Academic

Students cannot learn if they are not in the classroom during instruction. Students who do not feel safe or comfortable in class often avoid school, skip classes, or withdraw/disengage while in the classroom. This is particularly true for trans students who may be in a state of hypervigilance and fear in class when they know their dead name will be called out, that they will have to hold their bladder, that they will be mis-gendered by the teacher or classmates, or that they will be separated into the wrong group during gendered activities such as P.E. There are many ways to help keep students in the classroom and keep them engaged: ensure consistent use of the student’s chosen name and pronouns, ensure access to the bathroom the student feels comfortable using, allow for stress breaks to reduce anxiety, designate a staff member with whom the student feels safe as their “support staff” who they can talk to when they need support, and enforce strict policies against bullying and harassment of trans students, among others. 

Use and Confidentiality of Names and Pronouns 

A student’s transgender status, legal name or sex assigned at birth is confidential medical information and protected personally identifiable information, and disclosure of that information may violate the school’s obligations under FERPA. 20 U.S.C. § 1232g; 34 C.F.R. §§ 99.00 et seq. Given the disproportionately high levels of discrimination trans people experience, sharing that information could expose a student to harassment and abuse from peers, educators and school staff. Absent an explicit legal obligation or express permission from the student and family, such information should not be shared with anyone, including other parents and school personnel, and the school and district should implement safeguards to prevent such disclosures. 

According to a joint publication by the NCLR and Gender Spectrum, Schools in Transition, despite the administrative barriers sometimes presented by schools’ recordkeeping and reporting requirements, many school districts have found solutions that allow them to comply with those requirements while meeting their obligations to safeguard a trans student’s privacy and right to learn in a safe and supportive school environment, including: (1) Maintain a copy of student’s birth certificate under lock and key in principal’s office, while the student information system has the name and gender marker that correspond to the student’s gender identity; 2) Allow student to re-enroll in school using a passport with correct name and gender marker, or change name and gender marker in student information system to be consistent with passport; 3) Work with student information system provider to develop a field or screen that would allow the district to maintain student’s legal and chosen name, but that would use the chosen name to populate attendance sheets, report cards, and other school-related documents. Not all trans students have equal access to the process of correcting their identity documents, as a result of myriad obstacles: lack of resources, high cost of court-ordered name change process, state requirements of surgical transition before amending gender marker on birth certificate, lack of supportive parents, etc. School and district personnel must develop policies and protocols for inputting the correct information into the student information system regardless of the student’s legal name or gender marker.

Access to Appropriate Bathrooms, Locker Rooms, and Facilities

Access to the bathroom is a vital component of attending school. Few people could make it through a school day without using the bathroom, no less focus on school work and retain information while constantly holding their bladder. Oftentimes, schools will require trans students to use a “single-stall” bathroom, a staff or nurses bathroom, or some other separate and unequal facility, which frequently are far from the student’s classes. Requiring trans students to use a separate bathroom is denial of access, and often results in students being stigmatized by other students, being late to class due to the distance, or developing urinary tract infections from holding their bladders during the school day. If a trans student prefers to use a gender-neutral or staff bathroom for their own safety or comfort, they should be permitted to do so, but should not be forced to. 

Many schools refuse to allow trans students to use the bathrooms just like every other student simply due to fear and misunderstanding among the cisgender community, and use the guise of “protecting other students’ privacy.” Others refuse access due to discriminatory “bathroom bans” that prohibit trans youth from accessing safe and affirming bathrooms. In early 2015, Media Matters for America contacted officials at the largest school districts in 12 states that have laws protecting trans students, and not a single one reported “any incidences of harassment or inappropriate behavior” as a result of “allowing transgender students to access facilities they’re comfortable with.”

If a school district is refusing to allow a trans student access to a safe and affirming bathroom, the parent could file a Title IX Complaint with the U.S. DOE Office of Civil Rights (OCR), available at https://ocrcas.ed.gov. OCR has the authority to investigate complaints claiming a covered entity discriminated based on, among other characteristics, sex, gender identity, and transgender status. Covered entities include all public and private programs that receive federal funds.

Access to Gendered Activities, Such as Athletic Teams

Along with restrooms and locker rooms, health and P.E. classes, athletic teams, overnight trips, homecoming and prom are just some of the other places where discriminatory policies or enforcement exclude transgender students. Schools need to provide support for the unique privacy needs of transgender students so they can comfortably participate in these activities. For more information on anti-trans sports bans and exclusion from sex-segregated activities, see supra section IV(A)(2), “Exclusion from Sex-Segregated Spaces.”

Reduction of Stress and Anxiety

In addition to access to the appropriate bathrooms facilitates, athletic teams, and other such gendered issues, trans students have the right to dress in accordance with their gender identity or gender expression as long as their attire complies with school and district dress codes. This is the case regardless of their assigned sex at birth, the gender designated on their birth certificate or other legal documents. Being able to show up at school and simply be oneself can alleviate much stress and anxiety for trans students. 

© COPAA (2024) 26th Annual COPAA Conference White Paper, Atlanta, Georgia. 

By: Selene Almazan, Esq. and Ellen Saideman, Esq.

 For students with disabilities, an umbrella of protections rooted in the Constitution exist that protect their access to education and its benefits as well as their Fourteenth Amendment right to be free from discrimination on the basis of their disabilities.   IDEA was enacted pursuant to Congress’s power under the Spending Clause and “offers federal funds to States in exchange for a commitment: to furnish a ‘free appropriate public education’ – more concisely known as FAPE- to all children with certain physical or intellectual disabilities.”  Fry v. Napoleon Cmty. Schs., 580 U.S. 154 ,158 (2017).  Thus, IDEA provides a “substantive right” to special education and related services.  Id. Congress has also acted to protect students with disabilities from discrimination by enacting separate and distinct statutes, notably Section 504 and Title II of the ADA, that bar public schools from discriminating against students on account of their disabilities, regardless of whether such discrimination deprives the students of FAPE.  These statutes provide valid, standalone legal claims to be protected from unlawful discrimination. 

Public school students have the same right to be free from discrimination as other individuals with disabilities. Indeed, the Supreme Court has recently endorsed a strict construction of IDEA to ensure that it does not diminish students’ protections under other civil rights statutes.  In Perez v. Sturgis Public Schools, 143 S. Ct. 859 (2023), the Supreme Court endorsed a textualist approach to IDEA, a statute protecting the civil rights of students with disabilities as those rights relate to education. In so doing, the Court relied heavily on the statutory language in 20 U.S.C. § 1415(l). Id. at 861. Section 1415(l) states, in relevant part: “Nothing in this chapter shall be construed to restrict or limit the rights, procedures, and remedies available under” the ADA, Section 504, or other Federal laws protecting the rights of children with disabilities.

Perez decided a question different than that presented in this case – whether a student seeking relief unavailable under IDEA had to exhaust administrative remedies. But in reaching the result, the Court emphasized the importance of hewing closely to the statutory language in analyzing a case where a student has rights under IDEA as well as other federal laws.  The Court explained that the first clause of Section 1415(l) makes clear that nothing in IDEA is to be construed as restricting the rights available under the ADA and Section 504.  Id. at 864. 

Many courts continue to believe that whenever the ADA claim shares some portion of the gravamen of an IDEA claim, there is no standalone claim for violation of the ADA.  Courts mix up two different legal concepts, the first being when exhaustion of an IDEA claim is required as a prerequisite for bringing an ADA/Section 504 claim under 20 U.S.C. § 1415(l), and the second being whether an ADA claim is a standalone legal claim.

As the Supreme Court has recognized, IDEA and ADA are fundamentally different statutes:  “the IDEA guarantees individually tailored educational services, while Title II and § 504 promise non-discriminatory access to public institutions.”   Fry, 580 U.S. at 170-71.  Nonetheless, there may be “some overlap in coverage:  The same conduct might violate all three statutes,” with the result that “a plaintiff might seek relief for the denial of a FAPE under Title II and §504 as well as the IDEA.”  Id. at 171.  Thus, when a student asserts that the denial of non-discriminatory access to public education has deprived the student of an adequate education, the ADA and IDEA may overlap and § 1415(l) may require that the student first pursue a due process hearing under IDEA for claims for prospective relief and any other relief also available under IDEA.  Yet, the ADA claim for non-discriminatory access to public education remains a distinct legal claim with distinct legal elements, with the result that a student who loses an IDEA claim may nonetheless prevail on the ADA claim.

Thus, students with disabilities have standalone claims under Section 504 and the ADA to be free from unlawful disability discrimination, regardless of whether the discrimination deprives them of FAPE under IDEA.

The ADA and 504 Provide Robust Anti-Discrimination Remedies that Are Distinct from IDEA’s FAPE Requirement

IDEA and ADA/Section 504 are fundamentally different statutes.  IDEA “establishes a substantive right to a ‘free appropriate public education’ for certain children with disabilities.”  Endrew F. v. Douglas County School District. RE-1, 580 U.S. 386, 390 (2017).  The statute “represents an ambitious federal effort to promote the education of [disabled] children and was passed in response to Congress’ perception that a majority of [disabled students] in the United States ‘were either totally excluded from schools or [were] sitting idly in regular classrooms awaiting the time when they were old enough to ‘drop out.’” Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 179 (1982) (quoting H.R. Rep. No. 94-332, p.2 (1975)). IDEA provides detailed requirements for the development of an appropriate Individualized Education Program (IEP) for every student and powerful procedural protections when school districts fail to follow statutory and regulatory directives. See Endrew F., 580 U.S. at 391. IDEA provides for compensatory education as a remedy, see Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275 (11th Cir. 2008), but not a claim for compensatory damages.  See Perez v. Sturgis Public Schools, 143 S. Ct. 859, 865  (2023).

In contrast, the ADA and Section 504 “aim to root out disability-based discrimination, enabling each covered person (sometimes by means of reasonable accommodations) to participate equally to all others in public facilities and federally funded programs.”  Fry, 580 U.S. at 170.   In 1990, Congress passed the Americans with Disabilities Act, a landmark law protecting the rights of individuals with disabilities. Title II barred discrimination by public entities, including school districts.   Title II goes beyond Section 504 in applying to state and local government agencies even if they have not received any federal funds.  Because public schools receive federal funds and are public entities, public schools are subject to the requirements of both Title II of the ADA and Section 504, in addition to IDEA. See Fry, 580 U.S. at 159. 

The scope of ADA/504 is much broader than IDEA’s.  IDEA protects only those students who both have a disability listed in the statute, 20 U.S.C. § 1401(3)(A)(i), and also “by reason thereof, need[] special education and related services.”  20 U.S.C. § 1401(3)(A)(ii). By contrast, ADA applies to any individual who has “a physical or mental impairment that substantially limits one or more major life activities.”  42 U.S.C. § 12102 (1)(A).[1] Note that Section 504 uses the same definition as ADA in the pertinent provisions. 29 U.S.C.§ 705 (20(B).  ADA and Section 504 are typically construed the same, so the discussion of case law under ADA typically would also apply to case law under Section 504.

Because learning is a major life activity under the ADA, 42 U.S.C. § 12102(2)(A), students who are eligible for special education and related services under IDEA typically meet the definition of disability under ADA.  But while students with IEPs under IDEA are covered by ADA, the ADA also covers many students who do not need special education under IDEA.  Some of these students may choose to have Section 504 plans; in the 2017-2018 school year, there were 6,728,064 students served under IDEA and 1,380,146 who were on Section 504 plans without an IEP.[2] 

The ADA also provides some very detailed protections not found in IDEA. In fact, the ADA includes a mandate to eliminate discrimination against individuals with disabilities, and it required the United States Department of Justice (DOJ) to promulgate regulations to implement the ADA to that end.  42 U.S.C. § 12134.  Thus, while IDEA may set the “basic floor of opportunity,” the ADA may require more, as it mandates equal access for students with disabilities. For example, the ADA regulations specifically require public entities to “take appropriate steps to ensure that communications with applicants, participants, members of the public and companions with disabilities are as effective as communications with others.”  28 C.F.R. § 35.160(a)(1).  

K.M. v. Tustin,  725 F.3d 1088 (9th Cir. 2013) illustrates the ADA’s imposition of a higher obligation than IDEA.  In that case, a student who was deaf sought Communication Access Real-time Translation services (CART)—an accommodation that provides word-for-word transcription—to enable her to follow classroom instruction. The school district in K.M. refused to provide her with CART and instead offered her different supports which did not provide her with the type of word-for-word transcription she felt she needed to have equal access to instruction.

To support its position that CART was not required, the school district relied on the Supreme Court’s decision in Rowley.  In that case, the Supreme Court held that a deaf student who was achieving “‘better than the average child in her class and… advancing easily from grade to grade’” received a FAPE even though “‘she understands considerably less of what goes on in class than she could if she were not deaf.’”  458 U.S. at 210, 185. Under the Rowley analysis applicable to the student’s IDEA claim, the district court found that the school district’s failure to provide the CART services did not deny K.M. a FAPE.  See K.M. v. Tustin, No. 10-1011, 2011 WL 2633673, at *12 (C.D. Cal. July 5, 2011), rev'd in pertinent part, 725 F.3d 1088 (9th Cir. 2013).

However, the Ninth Circuit reversed, holding that “the IDEA FAPE requirement and the Title II communication standards are significantly different,” with “[t]he result… that in some situations, but not others, schools may be required under the ADA to provide services to deaf or hard-of-hearing students that are different than the services required by the IDEA.” 725 F.3d at 1100.  The ADA regulations require that communication be made equally accessible to people with communication disabilities, even if the student does not require equal access to receive a FAPE as defined by Rowley.  See, e.g., K.M., 725 F.3d at 1098.

In K.M., the Ninth Circuit recognized that IDEA sets the “floor of access to education,” while Title II and its implementing regulations “require public entities to take steps towards making existing services not just accessible, but equally accessible to people with communication disabilities.” Id. at 1097. The court did “not find in either statute an indication that Congress intended the statutes to interact in a mechanical fashion in the school context, automatically pretermitting any Title II claim where a school's IDEA obligation is satisfied.” Id. at 1092.

Thus, while IDEA may set the “basic floor of opportunity” in schools, the ADA may require more as it was enacted “to provide a clear and comprehensive mandate for the elimination of discrimination against individuals with disabilities” and it “invoke[d] the sweep of congressional authority, including the power to enforce the fourteenth amendment and to regulate commerce, in order to address the major areas of discrimination faced day-to-day by people with disabilities.” 42 U.S.C. § 12101(b)(4). Thus, the ADA arises under the Fourteenth Amendment. Tennessee v. Lane, 541 U.S. 509 (2004); see also United States v. Florida, 938 F.3d 1221, 1247 (11th Cir. 2019), reh’g en banc denied, 21 F.4th 730 (11th Cir. 2021). Congress may proscribe a broad range of conduct under the Fourteenth Amendment, Miss. Univ. for Women v. Hogan, 458 U.S. 718, 732 (1982), including damage claims for relief under the ADA. United States v. Georgia, 546 U.S. 151 (2006). Further, the ADA provides individuals with the ability to pursue damages to make victims of discrimination whole, and also to disincentivize discrimination at an institutional level. 

Because the legal standard for providing effective communication is more demanding under the ADA and Section 504 than under IDEA, as the ADA and Section 504 require equal access, a student may well have a winning ADA/504 claim for effective communication while losing an IDEA claim. This is because a student may be able to make adequate educational progress sufficient for a FAPE under IDEA but still be denied equal access to his education.

Congress has Provided Individuals with Disabilities with an Independent Right to Equal Access under ADA and Section 504 Even When the ADA and IDEA Claims Both Address a Student’s Education

The Supreme Court has addressed the relationship between IDEA and federal non-discrimination laws in three cases.  In the first case, Smith v. Robinson, 468 U.S. 992, 1009 (1984), the Court held that Congress intended that IDEA “be the exclusive avenue through which a plaintiff may assert an equal protection claim to a publicly financed special education.”  Therefore, the Court held that claims under Section 504 and Section 1983 were simply not available to students asserting a right to a free appropriate public education under IDEA.  Id. at 1013, 1021.
 

But Congress disagreed.  As the Supreme Court observed in Fry, “Congress was quick to respond” by “overturn[ing] Smith’s preclusion of non-IDEA claims while also adding a carefully defined exhaustion requirement.” Fry, 580 U.S. at 161. Congress enacted the Handicapped Children’s Protection Act of 1986, P.L. 99-372, 100 Stat. 796, amending Section 615 of IDEA to establish rights to attorney fees and an exhaustion provision (now at 20 U.S.C. § 1415(l)) for claims under other federal laws protecting children with disabilities. HCPA’s exhaustion requirement, as amended, reads in full:

Nothing in this chapter shall be construed to restrict or limit the rights, procedures, and remedies available under the Constitution, the Americans with Disabilities Act of 1990 [42 U.S.C.A. § 12101 et seq.], title V of the Rehabilitation Act of 1973 [29 U.S.C.A. § 791 et seq.], or other Federal laws protecting the rights of children with disabilities, except that before the filing of a civil action under such laws seeking relief that is also available under this subchapter, the procedures under subsections (f) and (g) shall be exhausted to the same extent as would be required had the action been brought under this subchapter.

20 U.S.C. § 1415(l) (alterations in original). See also: Lartigue v. Northside Indep. Sch. Dist., 86 F.4th 689 (5th Cir. 2023).

The Court noted that § 1415(l)’s first clause “‘reaffirm[s] the viability’ of federal statutes like the ADA or Rehabilitation Act ‘as separate vehicles,’ no less integral  than the IDEA, ‘for ensuring the rights of [disabled] children.’” 580 U.S. at 161 (quoting H.R. Rep. 99-296, p. 4 (1985)). The Court then noted that the second clause simply imposed a limit that, when the plaintiff is seeking “relief that is also available under” the IDEA, the plaintiff must “first exhaust the IDEA’s administrative procedures.”  Id.  That exhaustion requirement does not transmute the ADA claim into an IDEA claim; the ADA claim remains a separate vehicle for enforcing a different right, the right to be free of unlawful discrimination. 

The Supreme Court again considered the relationship between ADA and IDEA in Perez.  In that case, the Sixth Circuit had held that the gravamen of the student’s claim was a denial of FAPE, the school’s failure “to provide him with the educational services he needed” and affirmed dismissal of the ADA claim.  Perez v. Sturgis Pub. Schs., 3 F.4th 236, 241 (6th Cir. 2021), rev’d on other grounds, 143 S. Ct.  859 (2023).  That holding was not appealed, but Perez sought certiorari on two issues:  (1) whether there was a futility exception to exhaustion under IDEA and (2) whether claims for money damages only were subject to exhaustion.  Nonetheless, the Court reversed, holding that the exhaustion requirement did not apply because the plaintiffs sought only  compensatory damages.  The Court said that Section 1415(l) “applies only to suits that ‘see[k] relief . . . also available under’ IDEA.” Perez, 143 S. Ct. at 864 (2023) (emphasis in original). “And that condition simply is not met in situations like ours, where a plaintiff brings a suit under another federal law for compensatory damages – a form of relief everyone agrees IDEA does not provide.”  Id.  The district court  below did not have the benefit of the Supreme Court’s decision in Perez.

Thus, the Court’s decisions in both Fry and Perez make clear that, even if the ADA/504 and IDEA claims may overlap in that the gravamen of the complaint is the education for both claims, the ADA/504 claims seek to protect independent legal entitlements, the right to be free of unlawful discrimination and to have equal access.

Three Supreme Court cases, one involving Section 1415(l) itself, emphasize the importance of construing statutes consistently with the actual statutory language. Perez, notes that the first “salient feature” of “Section 1415(l) contains two salient features. First the statute sets forth this general rule: ‘Nothing in [IDEA] shall be construed to restrict’ the ability of individuals to seek ‘remedies’ under the ADA or ‘other Federal laws protecting the rights of children with disabilities.’” 143 S. Ct. at 863. Second, when seeking relief available under IDEA – that is, equitable relief – a student must exhaust administrative remedies. Id. at 863-64.

In determining whether 1415(l) did not require exhaustion of a compensatory damages claim, even if the claim was premised on a denial of FAPE, the Court noted, “it is . . . our job to apply faithfully the law Congress has written, and we cannot replace the actual text with speculation as to Congress’ intent.” 143 S. Ct. at 865 (cleaned up). Hewing strictly to the statutory text, the Court had to determine that exhaustion was not required because compensatory damages are not equitable relief. This is consistent with ample precedent holding that the Court presumes that a statute “means what it says.” See, e.g., Hamer v. Neighborhood Housing Servs., 138 S. Ct. 13, 20 (2017); Simmons v. Himmelreich, 578 U.S. 621, 627 (2017).

In Bostock v. Clayton Cty., 140 S. Ct. 1731, 1737 (2020), the Supreme Court relied on strict construction of statutory language to hold that Title VII forbids firing an individual for being homosexual or transgender because sex “plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.” 

In Health & Hosp. Corp. v. Talevski, No. 21-806, 2023 U.S. LEXIS 2421 (June 8, 2023) (HHC), the Court again relied upon strict construction of statutory language when it held that rights arising under the Federal Nursing Home Reform Act (FNHRA) were enforceable under 42 U.S.C. § 1983. The petitioner, a nursing home, argued “that ‘Spending Clause statutes do not give rise to privately enforceable rights under Section 1983’ because contracts were not ‘generally’ enforceable by third-party beneficiaries at common law.” Id. at *17 (citing petitioner’s brief). But Section 1983 provides an express cause of action for any person deprived of any rights “secured by the Constitution and laws.” The Court reasoned that “laws means laws,” so an individual may[3] have a right enforceable under Section 1983 under any federal law, including a Spending Clause statute. Id. at *9. The Court refused to ignore the plain language of the statute.

IDEA’s exhaustion provision, 20 U.S.C. § 1415(l), is a procedural rule that sets forth the sequence for bringing non-IDEA claims that share the gravamen of FAPE with IDEA claims.  See K.I. v. Durham Pub. Sch. Bd. of Educ., 54 F. 4th 779, 791 (4th Cir. 2022) (holding provision is a claims-processing rule). That provision does not address the legal merits of the claim, does not limit the ADA or other non-IDEA claim on the merits to IDEA’s legal standards, and certainly does not obliterate the Seventh Amendment jury trial rights of students with disabilities.

Perez makes clear that exhaustion is not required when a parent or student is seeking money damages alone.  However, at the outset of his initial due process complaint, Perez, like most students with IEPs had claims under IDEA, ADA, and Section 504.  He then settled only the IDEA claims and sought to bring his ADA claim as a standalone claim, having resolved the IDEA claim. He was able to do so, thanks to the Supreme Court decision, and the federal ADA case was settled following remand to the district court.

If the student seeks a remedy available under IDEA, which includes claims for prospective relief and reimbursement claims, then exhaustion is required.  Note that IDEA remedies are limited to students who qualify as students with disabilities under IDEA, so that students who are not eligible under IDEA should not be required to exhaust IDEA administrative remedies.  School districts often try to have it both ways, that students are not eligible for IDEA when it comes to providing educational and related services, but they are subject to IDEA’s exhaustion requirement.  Because school districts have a legal obligation to find eligible students under state plans, 20 U.S.C. § 1412(a)(3), school districts essentially have three choices:  (1) find the student eligible under IDEA; (2) find the student not eligible under IDEA, or (3) commence an evaluation to determine if the student is eligible under IDEA.  If the school district has determined that the student is not eligible under IDEA and has not undertaken any evaluations to determine that the student is eligible, then the school district by its actions has admitted that it does not suspect that the student has an IDEA-eligible disability. That should be considered an admission against interest that IDEA’s exhaustion requirement is not applicable as the student is not eligible and therefore has no remedy available under IDEA.

However, in George v. Davis School District., No. 2:23-cv-00139-JNP-DBP, 2023 U.S. Dist. LEXIS 137409, at *20 (D. Utah Aug. 4, 2023), the district court held that the school district’s initial determination  that the student did not qualify for IDEA was “not final” because parents may challenge eligibility determinations. The case was appealed and subsequently settled. COPAA believes that decision was wrong, and that a school district’s determination that a child is not eligible under IDEA is an admission against interest that the child is not subject to IDEA’s exhaustion requirement on ADA/504 claims. (Obviously, a challenge to the determination of non-eligibility under IDEA would require exhaustion). 

If the student is eligible under IDEA, exhaustion is required if the parent/students want prospective relief, compensatory education and/or reimbursement for tuition and other educational and related services.  In some jurisdictions, parents may obtain a settlement that includes money for educational expenses.  Thus, the relief available under IDEA may be especially useful for a student.

After Perez, school districts may refuse to settle IDEA claims without a general release, so it may be necessary to litigate the IDEA claim to a decision to be able to bring the 504/ADA claims. One question is whether a parent/student is substantially justified in rejecting an IDEA settlement that includes a general release rather than a release limited to the IDEA claim(s).  See 20 U.S.C. § 1415(i)(3)(D).

After Due Process

If the parent/student prevails at due process, then the way is clear to bring the standalone ADA/504 claim. If the parent/student loses at due process, it is important to consider whether there might be any collateral estoppel implications of the hearing officer’s decision. In Lartigue v. Northside Independent School District, 86 F.4th 689, 697 (5th Cir. 2023), petition for rehearing on banc pending, the Fifth Circuit held that the plaintiffs, who had lost a due process hearing, had a standalone IDEA claim and could pursue it. However, Judge Jerry F. Smith dissented on the ground that, in his opinion, recovery was barred by collateral estoppel.  Id. at 701. 

In S.C. v. Cnty. of L.A., No. CV 21-6163-MWF (PDx), 2023 U.S. Dist. LEXIS 140800, at *32 (C.D. Cal. Aug. 11, 2023), the court held that exhaustion was not required as the relief sought was not available under IDEA.  The court then considered the County of LA’s argument that, as a result of the due process decision,  collateral estoppel barred the ADA/504 claims.  The court held that four conditions must be met for collateral estoppel to apply: “1) the issue at stake was identical in both proceedings; (2) the issue was actually litigated and decided in the prior proceedings; (3) there was a full and fair opportunity to litigate the issue; and (4) the issue was necessary to decide the merits.”  Id. at *37, citing Janjua v. Neufeld, 933 F.3d 1061, 1065 (9th Cir. 2019) (internal citation omitted). The court held that none of the four conditions applied.  First, the legal duties under IDEA and ADA/504 were not identical so the issue was not identical. Id. at *38.  Second, the issue was not raised in the due process proceeding. Id. at *42.The court also found it was unclear whether there was a fair opportunity to litigate the issue and whether the issue was necessary to the decision on the merits. Id.

If there is any concern about collateral estoppel, it may make sense to appeal the due process hearing decision as well as bring standalone ADA/504 claims.

The Intent Standard for ADA/504 After Perez

One critical issue is the intent standard for liability under ADA/504 both for claims for prospective relief and for damages.

Applying the textualist approach in Perez, imposition of an intent requirement that is found nowhere in the Section 504 or the ADA and restricts or limit the rights, procedures, and remedies available to IDEA-eligible students to seek relief under those other federal statutes enacted to protect students with disabilities from unlawful discrimination, is wholly inconsistent with 20 U.S.C.  1415(l). To the extent that a  Circuits’ precedent supports imposition of any intent standard merely because a case involves a student protected by IDEA, it has been superseded by Perez. See Conquest Communs. Grp, LLC v. Swanson, 866 F.3d 853, 855 (8th Cir. 2017) (noting that a prior panel decision controls a subsequent panel “unless an intervening Supreme Court decision has superseded it”).

Public school students protected under Section 504 and the ADA should face no greater burden in asserting claims for reasonable accommodation than do individuals seeking relief against private actors. In Argenyi v. Creighton Univ., 703 F.3d 441, 449 (8th Cir. 2013), the Court held that Section 504 and Title III of the ADA required a medical school to afford the plaintiff medical student reasonable accommodations to afford “‘meaningful access’ or an equal opportunity to gain the same benefit as his nondisabled peers.”  To ensure that a facility offers an individual with disabilities “full and equal enjoyment,” a defendant must “start by considering how their facilities are used by non-disabled guests and then take reasonable steps to provide disabled guests with a like experience.” Id. (quoting Baughman v. Walt Disney World Co., 685 F.3d 1131, 1135 (9th Cir. 2012)). The ADA and Section 504 require provision of an accommodation if it is reasonable and necessary for equal access. This Court concluded that there was a genuine issue of material fact as to whether the medical student had an equal opportunity to gain the same benefit from medical school as his nondisabled peers without the requested accommodations. Id. at 451. The medical student did not have to prove anything about intent.

Similarly, in Childress v. Fox Assocs., LLC, 932 F.3d 1165 (8th Cir. 2019), the Court held that a theatre denied meaningful access to individuals with hearing impairments when it scheduled captioned performances only during a Saturday matinee time slot. This meant that individuals with hearing impairments could not, “like their hearing-enabled counterparts, attend the theater during the week or in the evening. This includes individuals with hearing impairments from ‘the economic and social mainstream of American life[,]’ perpetuating the discrimination the ADA sought to address.” Id. at 1171. Because “Fox’s one-captioned-performance policy denies persons with hearing impairments an equal opportunity to gain the same benefit as persons without hearing impairments, . . . deaf and hard-of-hearing individuals [did] not have meaningful access to the benefits the Fox provides.” Id. at 1172.

 Argenyi and Childress interpreted Title III of the ADA, which applies to private actors. Neither case refers to any type of intent standard and certainly not “bad faith” or “gross misjudgment.” Knox Cnty. v. M.Q., 62 F.4th 978 (6th Cir. 2023) recognized that “outside of the education context, the ADA unequivocally does not limit its protections to instances of intentional discrimination, but instead extends to cases involving decision making that unintentionally results in exclusion as well.” Id. at 1002 (citing Ability Ctr. of Greater Toledo v. City of Sandusky, 385 F.3d 901, 904-913 (6th Cir. 2004)). It is “hard to square a standard requiring bad faith or gross misjudgment, in all cases involving students’ educational rights, with statutory protection that reaches even the unintentional denial of services.” Id.^[4]

To apply a higher intent standard to students who are protected by IDEA than those who are outside IDEA’s protections  is completely inconsistent with the unequivocal statement that nothing in Section 1415(l) should restrict a student’s rights under other federal anti-discrimination laws. See Perez, 143 S. Ct. at 864 (Section 1415(l) instructs that nothing in IDEA shall be construed as restricting or limiting the availability of redress under other federal statutes like the ADA).

Imposition of an Intent Standard Is Inconsistent with the Statutory Purpose of the ADA and Section 504

As the Supreme Court observed:  “[M]uch of the conduct that Congress sought to alter in passing the Rehabilitation Act would be difficult if not impossible to reach were the law construed to proscribe only conduct fueled by a discriminatory intent.” Alexander v. Choate, 469 U.S. 287, 296 (1985). As Professor Mark Weber has observed:

Barnes v. Gorman, 536 U.S. 181 (1982) did nothing to disturb the compensatory   damages remedy for failure to provide accommodations. In fact, it reinforced the conclusion that compensatory damages are available for failures to provide reasonable modifications:

Our conclusion is consistent with the “well settled” rule that “where legal rights have been invaded, and a federal statute provides for a general right to sue for     such invasion, federal courts may use any available remedy to make good the wrong done.” [citations omitted]. When a federal-funds recipient violates     conditions of Spending Clause legislation, the wrong done is the failure to provide what the contractual obligation requires; and that wrong is “made good” when the recipient compensates the Federal Government or a third-party           beneficiary (as in this case) for the loss caused by that failure. Mark C. Weber, Accidentally on Purpose: Intent in Disability Discrimination Law, 56 Boston Coll. L. Rev. 1417, 1448 (2015) (quoting Barnes v. Gorman, 536 U.S. 181,  189 (2002)).

Barnes, as well as the ADA’s legislative history, support the conclusion that “broad remedies, consistent with concepts of reasonable expectations of loss, and including compensatory damages and other monetary relief, are available for violations of Section 504 and the ADA’s reasonable accommodations and disparate impact discrimination provisions.” Id. at 1449. Indeed, the ADA regulations state that a plaintiff may recover on a reasonable modification claim without proving intentional discrimination: “A public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.” 28 C.F.R. § 35.130(b)(7).

Both this regulation and Barnes are consistent with the Court’s declaration in Choate,  that Congress in Section 504 perceived discrimination against people with disabilities “to be most often the product, not of invidious animus, but rather of thoughtlessness—of benign neglect.” See 469 U.S. at 296. The Court specifically rejected the idea that “discriminatory animus is always required to establish a violation of § 504 and its implementing regulations.” Id. at 292. Instead, federal law “reaches action by a recipient of federal funding that discriminates against the handicapped by effect rather than by design.”   Id. The Court noted that Section 504’s legislative history reflected Congressional concern that, historically, children with disabilities did not have access to the “simplest forms of special educational and rehabilitation services they need.” 469 U.S. at 297. The statements cited by the Court “would ring hollow if the resulting legislation could not rectify the harms resulting from action that discriminated by effect as well as by design.” Id.

Applying Southeastern Community College v. Davis, 442 U.S. 297 (1979), the Court found that Section 504 “requires that an otherwise qualified handicapped individual must be provided with meaningful access to the benefit that the grantee offers. The benefit itself, of course, cannot be defined in a way that effectively denies otherwise qualified handicapped individuals the meaningful access to which they are entitled; to assure meaningful access, reasonable accommodations in the grantee's program or benefit may have to be made.” Id. at 301.

Thus, the Supreme Court in Choate unequivocally rejected any requirement that a Section 504 plaintiff prove intentional discrimination when being denied access to a government benefit because of denial of reasonable accommodations.  Cf. Olmstead v. L.C., 527 U.S. 581, 606-607 (1999) (plurality opinion) (finding violation of “most integrated setting” mandate with no showing of intent); Helen L. v. DiDario, 46 F.3d 325 (3d Cir. 1995) (“Congress could not have intended to limit the Act’s protections and prohibitions to circumstances involving deliberate discrimination. Such discrimination arises from ‘affirmative animus’ which was not the focus of the ADA or Section 504”).

In Knox County. v. M.Q., 62 F.4th 978 (6th Cir. 2023), the Sixth Circuit stated: “A plaintiff may allege disability discrimination under two available theories: intentional discrimination and failure to reasonably accommodate.” Id. at 1000. Significantly, the court recognized that the failure to accommodate claim required no proof of intent:

To prevail in a failure-to-accommodate claim, the plaintiff must show that the defendant reasonably could have accommodated his disability but refused to do   so, Keller v. Chippewa Cnty., Mich. Bd. of Comm'rs, 860 F. App’x 381, 385 (6th    Cir. 2021), and that this failure to accommodate “imped[ed] [his] ability to    participate in, or benefit from, the subject program,” Campbell [v. Bd. of Educ. of Centerline Sch. Dist.], 58 F. App’x [162, 166 (6th Cir. 2003). The plaintiff must establish both that his preferred accommodation was reasonable, and that the    accommodation provided to him was unreasonable. Doe [ex rel. K.M. v. Knox Cnty. Bd. of Educ.], 56 F.4th [1076, 1088 (6th Cir. 2023)] (citing Campbell, 58 F.   App’x at 166).  62 F.4th at 1000.

In an analogous situation, in L.E. v. Superintendent. of Cobb County School District., 55 F.4th 1296 (11th Cir. 2022), the plaintiffs alleged that the school district failed to provide access to in-person schooling, during the pandemic, for students with respiratory ailments, violating the ADA and Section 504. Id. at 1299. One of the claims asserted by the plaintiffs was that the school district’s actions resulted in unjustified isolation, found to be discriminatory in Olmstead.

 The Eleventh Circuit in L.E. found that the district court erred in concluding that because the isolation resulted from a “facially neutral, uniformly applied policy,” it could not form the basis of a discrimination claim. Id. at 1303. The court stated:

 The Supreme Court has explained that disability discrimination “was perceived  by Congress to be most often the product, not of invidious animus, but rather of thoughtlessness and indifference – of benign neglect.” Choate, 469 U.S. at 295. The various forms of discrimination against disabled individuals are frequently facially neutral, but nevertheless effectuate discrimination against disabled people. Id

Although L.E. involved an unjustified isolation claim, rather than a reasonable accommodation claim, it still stands for the proposition that a public school student alleging a Section 504/ADA claim need not show intent to discriminate or animus.

Other federal court decisions illustrate the simple and straightforward analysis.  K.N. v. Gloucester City Board of Education., 379 F. Supp. 3d 334 (D.N.J. 2019) explained the analysis for a failure to accommodate claim in the context of a student’s educational program. There, J.N.’s parents asserted that J.N. required a trained one-to-one aide supervised by a special education teacher as a reasonable accommodation necessary to afford J.N. meaningful access to an after-school program. Id. at 350. The court stated that claims alleging failure to accommodate involve three inquiries: “(1) whether the requested accommodation is reasonable; (2) whether it is necessary; and (3) whether it would fundamentally alter the nature of the program.” Id. (quoting Berardelli v. Allied Servs. Inst. of Rehab. Med., 900 F.3d 104, 123 (3d Cir. 2018).

Whether an accommodation is reasonable requires “a fact-specific, individualized analysis of the disabled individual’s circumstances and the accommodations that might allow him to” enjoy meaningful access. Id. (quoting Mark H. v. Hamamoto, 620 F.3d 1090, 1098 (9th Cir. 2010)). The K.N. court found that the requested accommodation was reasonable because, without the one-to-one aide, J.N. was unable to attend the after-school program, and thus was  denied meaningful access. Id. at 352.

The court went on to find that questions of reasonableness and necessity bled together. “Because only Plaintiffs’ proposed accommodation provides meaningful access, it would logically follow that it is necessary.” Id. at 352. In the interest of completeness, the court also considered another test for necessity. Applying that test, a court should “(1) ‘start by considering how . . . facilities are used by nondisabled guests,’ and (2) ‘then take reasonable steps to provide disabled guests with a like experience.’” Id. (quoting A.L. v. Walt Disney Parks & Resorts U.S., Inc., 900 F.3d 1270, 1294 (11th Cir. 2018) (internal quotations omitted).

This test of necessity also established that the requested accommodation was necessary. J.N. could only attend the program when provided with the requested accommodation. With the other accommodation, J.N. could not attend, much less participate in, the program and achieve a like experience. Id. at 353. Because there was no evidence of undue burden in the record, the school district had no defense and the court ruled in favor of J.N.

Similarly, in D.A. v. Penn Hills Schools District, No. 2:20-cv-1124, 2021 U.S. Dist. LEXIS 91149 (W.D. Pa. May 13, 2021), the district court entered summary judgment for the plaintiff D.A. because door-to-door transportation services were a reasonable accommodation for D.A.’s disability and the school district refused to provide those services. D.A. was enrolled in a private school at parental expense but was entitled to public transportation to his school under Pennsylvania law.  Id. at *15.

The court reasoned that D.A. met his burden of articulating a reasonable accommodation – door-to-door transportation. Further, a failure to accommodate claim does not require demonstration that the injury was the result of purposeful discrimination. Id. at *14. Because the parties had stipulated that door-to-door transportation was a necessary and reasonable accommodation, the court granted summary judgment on the ADA claim, requiring no proof of intent to discriminate.

DAMAGES

The remedies available under Section 504 are non-exclusive and are significantly broader than those provided by IDEA. Most significantly, monetary damages are available, even for acts that also violate IDEA.[5]  Section 504 incorporates the remedy provisions under Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d. 29 U.S.C. §§ 794a(a). Additionally, ADA/Section 504 allow for the recovery of litigation costs, including expert witness fees. 42 U.S.C. § 1988 (b–c).

Damages under ADA/504 that may overall with IDEA damages include tuition and other reimbursement claims and compensatory education.  In Svochak v. Grapevine-Colleyville ISD, No. 4:23-CV-270-BJ, 2023 U.S. Dist. LEXIS 215839 (N.D. Tex. Dec. 5, 2023), the court held exhaustion was required because the monetary damages sought – reimbursement for past services and for private school and continued placement in a private school, were available under IDEA.  Id. at 8.

In Cummings v. Premier Rehab Keller, P.L.L.C., the Supreme Court determined that emotional distress damages are not available under Section 504 and affirmed that punitive damages also are not available under Section 504.  596 U.S 212, 212 L. Ed. 2d 552, 142 S. Ct. 1562, 1565 (2022).  The question of whether damages are available for emotional distress under ADA is still open as Cummings did not address the ADA issue.

Title II’s language provides:  “The remedies procedures set forth in 794a of title 29 shall be the remedies, procedures, and rights in this subchapter . . . “ That is the provision regarding damages under Section 504 that was at issue in Cummings.

At oral argument in Perez, Justice Kagan noted that the Supreme Court has not reached the ADA issue.   The issue is currently before the Eleventh Circuit.  A.W. v. Cowenta Cnty. Sch. Dist., 2022 U.S. Dist. LEXIS,234549 (N.D. GA. Nov. 16, 2023), appeal pending, 22-14234 (11th Cir.).

However, in a Third Circuit case, “through his attentive and forthright counsel, Newton concedes that due to intervening Supreme Court precedent  t, Cummings . . ., the compensatory damages award cannot be sustained as a matter of law.”  Newton v. Pa. State Police, 2024 U.S. App. LEXIS, at *4 (3d Cir. Jan. 9, 2024).

Possible damages available under Cummings that are not available under IDEA;

• ‘Medical expenses
• Consequential damages that result from physical injury
• Dignitary harms
• Lost opportunity
• Lost wages
• Nominal damages ($1)

Also consider pendent claims under state anti-discrimination laws if the state discrimination laws provide for money damages, including emotional distress. 

 SELECTED ADDITIONAL POST PEREZ DECISIONS

Since Perez was decided, courts have found that claims for monetary damages alone are not subject to IDEA’s exhaustion requirement. However, in a number of the cases have then been dismissed the ADA/504 claims on other grounds.

Cease v. Henry, No. 5:22-CV-05015-RAL, 2023 U.S. Dist. LEXIS 147215 (D. S.D. Aug. 18, 2023). This case had been remanded to the district court to reconsider in light of Perez.  Id. at *8.  The court rescinded its prior opinion granting the motion to dismiss for failure to exhaust in light of Perez.  Id. at *21. However, the court held that the state department of education had immunity under the Eleventh Amendment for the damages claim.  Id. at *25.

Chavez as next friend for J.C. v. Brownsville Indep. Sch. Dist., 2023 WL 3918987, at *2 (5th Cir. June 9, 2023). Based on Perez, the Fifth Circuit affirmed the dismissal of Chavez's causes of action to the extent that she sought injunctive relief but remanded the matter for consideration of Chavez's claims for compensatory damages.

On remand: Based on Luna Perez, the district court concluded that any exhaustion requirement under IDEA did not apply to Chavez's claims for compensatory damages under Section 1983, the ADA, or Section 504, although the requirement applied to her request for equitable relief. Chavez v. Brownsville Indep. Sch. Dist., No. 1:18-CV-173, 2023 U.S. Dist. LEXIS 202062 (S.D. Tex. Sep. 28, 2023).

Chollet v. Brabrand, No. 22-1005, 2023 U.S. App. LEXIS 21728 (4th Cir. Aug. 18, 2023) “After this appeal had been fully briefed, however, the Supreme Court recognized an additional prerequisite to the IDEA's exhaustion requirement. See Luna Perez v. Sturgis Pub. Sch., 598 U.S. 142, 143 S. Ct. 859, 215 L. Ed. 2d 95 (2023). In Luna Perez, the Court held that even when a plaintiff's suit is "admittedly premised on the past denial of a free and appropriate education," administrative exhaustion is not required "if the remedy a plaintiff seeks is not one [the] IDEA provides." Id. at 865 (emphasis added). The parties now dispute, in light of Luna Perez, whether and to what extent the plaintiffs seek a remedy also available under the IDEA. But this question was not briefed before the district court or this court on appeal, and as is customary, we decline to address it in the first instance. See Graham v. Gagnon, 831 F.3d 176, 189 (4th Cir. 2016). Accordingly, we vacate the district court's order dismissing the plaintiffs' complaint and remand for further proceedings..” The district court subsequently dismissed this case on the merits, Chollet v. Brabrand, No. 1:21-cv-00987-AJT-JFA (D. Va. Dec.14, 2023), and an appeal is pending.

Coleman v. Prince George’s Cnty. Bd. of Educ., No. DLB-21-68, 2023 U.S. Dist. LEXIS 123085 (D. Md. June 2, 2023) “The Supreme Court has recently held, however, that exhaustion is not necessary “where a plaintiff brings a 2023 U.S. Dist. LEXIS 123085, *2 suit under another federal law for compensatory damages—a form of relief . . . IDEA does not provide.” Luna Perez v. Sturgis Public Schools, 598 U.S. 142, 143 S. Ct. 859, 864, 215 L. Ed. 2d 95 (2023). Under Perez, and as the Board concedes, a plaintiff may assert a claim for compensatory damages under the ADA and Section 504 even if he has not exhausted his administrative remedies under the IDEA. See id.”  The court dismissed the claim on the merits.

Dale v. Suffern Cent. Sch. Dist., 2023 U.S. Dist. LEXIS 175841 (S.D.N.Y. Sep. 28, 2023), “Moreover, the IDEA's exhaustion requirement does not apply to litigants seeking relief—such as compensatory damages—that the IDEA does provide. Luna Perez v. Sturgis Pub. Schs., 598 U.S. 142, 147-48, (2023).”  The district court denied a motion to dismiss, finding that exhaustion was not required as the plaintiffs’ claim for money damages for deliberate indifference to disability-based bullying sought relief that IDEA cannot provide.

Doe v. Gavins, Civil Action No. 22-cv-10702-ADB, 2023 U.S. Dist. LEXIS 172621 (D. Mass. Sep. 27, 2023) Although the First Circuit has not yet addressed the implications of Luna Perez, courts in other circuits have consistently interpreted it as holding that exhaustion is not required when plaintiffs seek only money damages, in contrast to the equitable relief available under the IDEA.  The court denied a motion to dismiss, finding that the ADA and Section 504 claims for money damages did not require exhaustion of administrative remedies. 

F.B. v. Francis Howell Sch. Dist., No. 23-1073, 2023 U.S. App. LEXIS 30515, at *2 (Nov. 16, 2023).  The court held that exhaustion was not required for a claim for compensatory money damages in light of Perez and so vacated the district court’s dismissal of the claim for compensatory damages.

Larsen v. Papillion La Vista Cmty. Sch. Dist., No. 8:23CV190, 2023 U.S. Dist. LEXIS 195803 (D. Neb. Nov. 1, 2023) The court held that the plaintiff was “not required to exhaust her administrative remedies under IDEA before filing this action,” citing to Perez. Id. at *6.However, the court dismissed the case because the plaintiff’s only damages were emotional distress damages not available after Cummings. Id. at *9.

Piotrowski v. Rocky Point Union Free Sch. Dist., No. 18-CV-6262 (RPK) (SIL), 2023 U.S. Dist. LEXIS 55485, at *24-25 (E.D.N.Y. Mar. 30, 2023) “The Supreme Court recently clarified the application of this provision to damages claims, by holding—contrary to suggestions in earlier Second Circuit case law—that because money damages are not available under the IDEA, claims for money damages alone are not subject to IDEA exhaustion. Luna Perez v. Sturgis Pub. Schs., 143 S. Ct. 859, 864, 215 L. Ed. 2d 95 (2023). Accordingly, because plaintiff seeks only money damages, see SAC ¶¶ B—C, the exhaustion  requirement in Section 1415(l) does not apply. See ibid.” The court held that exhaustion was not required because the plaintiff only sought money damages.  Id.at *25. It is worth nothing that the decision does not indicate that the student was eligible under IDEA; the student’s disability was diabetes.  The court dismissed the ADA, Section 504, and Section 1983 claims on the merits.

Powell v. Sch. Bd., 86 F.4th 881 (11th Cir. 2023).  The Eleventh Circuit vacated and remanded a pre-Perez decision dismissing a claim for money damages under ADA/504 for failure to exhaust “for further proceedings consistent with the holding in Perez.” Id. at 883.  The court noted that the plaintiffs unambiguously sought money damages and not compensatory education, which would be available under IDEA.

Stevens v. Berryhill Bd. of Educ., No. 19-cv-637-WPJ-JFJ, 2024 U.S. Dist. LEXIS 95 (N.D. Okla. Jan. 2, 2024).  The court held that exhaustion was not required because “[w]hile the gravamen of Plaintiffs’ complaint alleges the denial of a FAPE (consistent with Fry), she seeks relieve that the IDEA cannot provide (damages).”

© COPAA (2024) 26th Annual COPAA Conference White Paper, Atlanta, Georgia. 

By Shemica S. Allen, M.S.

Non-Attorney Special Education Advocate & Educational Consultant

Personalized Learning Solutions, LLC

Introduction

Parents are a vital stakeholder in the IEP process and an equal member of the IEP team. As a member of the IEP team, parents play an important role in deciding where and how their child should be taught. IEP meetings can be very emotional, overwhelming, and intimidating so being organized is key to relieving some of the stress associated with the special education process and IEP meetings. Getting and staying organized for IEP meetings can help your child get the best outcome and appropriate services in their IEP which is designed to ensure all of your child’s educational needs are met.

It is important for parents to learn helpful tips and strategies to utilize as they prepare for IEP meetings, during IEP meetings, and after IEP meetings. The tips and strategies that will be shared will help parents have effective and meaningful parent participation at IEP meetings. Parent participation is a foundational principle of the Individuals with Disabilities Education Act (IDEA).

“Over 20 years of research and experience have demonstrated that the education of children with disabilities can be made more effective by…strengthening the role of parents and ensuring the families of such children have meaningful opportunities to participate in the education of their children at school and at home.” IDEA’97, Section601(c)(5)(B). When families and schools work together student learning and outcomes improve in addition to children’s attitudes about school, their social skills and behavior, and the likelihood that they will accept being more challenged at school. According to the Individuals with Disabilities Education Act (IDEA), Congress found that the education of children with disabilities can be made more effective by “strengthening the role and responsibility of parents and ensuring that families of such children have meaningful opportunities to participate in the education of their children at school and at home.” 20 U.S.C. §1400(c)(5)(b) 34 CFR §300.322 details local education agencies’ responsibilities when it comes to parent participation.

Before the IEP Meeting

1. Organize your child’s documents-can be organized in a binder with tabs for quick reference. e.g. IEPs, evaluations, progress reports, work samples, etc. Documents can also be stored and organized electronically using platforms such as Google Drive, Dropbox, or Box.
   
   
2. Tabs or sections to use when organizing your child’s documents
   1. Copy of your Vision/Parent Input Statement
   2. Copy of last two IEPs including current IEP
   3. Copy of current Full Individual Evaluation (FIE) & any evaluations from outside service providers
   4. Copies of progress reports on IEP goals/objectives & general education report cards
   5. Copies of student work samples
   6. Goal tracker-can be created using a spreadsheet or table of the goals
   7. Any data collection sheets or documentation of any data being collected if collecting data at home or in the community
   8. Parent Contact Log & copy of any important emails-establish a separate email address for communicating with the district
   9. Notes
   10. Medical documentation-updated prescriptions & medical forms
   11. Copy of your parental rights-Procedural Safeguards
   12. Resources-informational guides, brochures, cheat sheets, list of acronyms, etc.
       
       
3.  Make sure you understand why your child meets eligibility for an IEP. Review your child’s most current IEP, FIE, progress reports, work samples, etc. 
   
   
4. Do research on your child’s area or areas of need.
   
   
5. Prepare or edit your Vision/Parent Input Statement to read at the IEP meeting. Your Vision/Parent Input Statement should be included in the present levels section of the IEP. Prioritize your child’s needs. Keep the focus on your child and not the district’s resources. If available include work samples done outside of school.
   1. Your Vision/Parent Input statement isn’t an official document. There is no special format you need to follow so it can be as simple as a letter or a list.
   2. Use strength-based language
   3. Be concise, be thorough
   4. Stay child-focused
   5. Don't point out staff faults, only what affects your child
   6. Gives a holistic picture of your child
   7. Can include the following:
      1. Strengths, accomplishments & interests
      2. Successes outside of school
      3. Areas of need
      4. Strategies that are working & not working at home
      5. Behavior concerns
      6. What your child is saying about school
      7. Plans for life after high school
      8. Your parental concerns
      9. Your requests & what data you have (summarize) to support your requests. 
         
         
6. Request a copy of proposed goals/objectives, accommodations, placement recommendations, and evaluations before the meeting.
   
   
7. Request a copy of the updated progress report-IDEA mandates IEP goals/ objectives are to be updated & sent home at the same time as regular report cards. Before an annual IEP meeting ask for an updated progress report so you can review your child’s progress on his or her IEP goals/objectives that have taken place over the IEP year. Review which goals were mastered and not mastered. Non-mastered goals and skills should be addressed in the new, proposed goals.
   
   
8. Prepare your recommendations, proposed goals & accommodations, questions, etc.

   
   

9. Gather all needed items the night before to take and have at the meeting-binder, notepad, pens, charged cell phone, audio recorder, water, snacks, etc.

                                        

10. Be prepared to listen actively. This means preparing to listen, paying attention, and observing both verbal and non-verbal communication. The purpose of active listening in a meeting is to acquire information and understand people and situations before responding.

During The IEP Meeting

1. Read your Vision/Parent Input Statement to the committee. Ask for your Vision/Parent Input Statement to be included in the present levels.
   
   
2. Take notes. Record the meeting if applicable-check your state’s recording laws and district policy on recording meetings.
   
   
3. Be an equal partner in the decision-making process. Discuss issues your child has that may affect his or her ability to receive educational benefits in the general education environment.
   
   
4. Make sure your child’s IEP goals are SMART-Specific, Measurable, use Action words, Realistic, and Time-Limited. Work to design specific, measurable, ambitious IEP goals-avoid generalized, and unmeasurable goals.
   
   
5. Ask questions & seek clarifications if unsure about something including acronyms.
   
   
6. Focus on the outcome, not the process.
   
   
7. Advocate for your child’s rights respectfully-no name calling or yelling. Congress understood that parents have every reason to advocate vigorously on behalf of their children.
   
   
8. Make every attempt to sustain relationships-try to work with and get along with all IEP committee members.
   
   
9. Keep an open mind.
   
   
10. Listen actively-especially to the items you do not want to hear about your child.
    
    
11. Be sure you understand the prior written notice (PWN) provision in IDEA. IDEA states districts must provide the parent with notice whenever the district proposes to initiate a change or refuses to make a change in connection with the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education (FAPE).
    
    

After The IEP Meeting

1. Read the PWN-IDEA requires that the PWN be submitted to parents in a timely manner. While there are no specific timeline requirements, timeliness generally means before a district takes any action, and in a reasonable amount of time for parents to accept or reject the proposed service or actions.
   
   
2. Review the IEP-make sure accommodations, goals, services, etc. are documented as discussed and agreed upon.

   
   

3. Update your IEP binder or electronic storage with a copy of the new IEP, FIE, etc.

   
   

4. Maintain communication with teachers & service providers-check in with teachers via parent conferences, weekly emails, etc.

   
   

5. Confirm all service providers have seen the new, developed IEP.

   
   

6. Periodically check the IEP against school work for consistency-check assignments, test scores, etc. to see if IEP is being implemented as documented and agreed upon.

   
   

7. Evaluate your child’s progress-monitor homework, tests, projects, etc.

   
   

8. Contact the Special Education department head/team lead if the IEP is not being honored or implemented as agreed upon.

   
   

9. Read & file away all progress reports. Remember progress reports are updated & sent home each time report cards are issued. If you do not receive a progress report then request one.

   
   

10. Request an IEP meeting if needed-do not wait until the next annual IEP meeting if you have a concern.

10 Key Mistakes to Avoid

1. Believing the professionals are the only experts-parents are experts on their child.
   
   
2. Not making requests in writing-any requests for evaluations, related services, etc. must be put in writing. Some written requests initiate timelines that school districts must follow in response to your request. This will also create a paper trail.
   
   
3. Not being familiar with Prior Written Notice (PWN) of the Procedural Safeguards.
   
   
4. Allowing the evaluation to be presented for the first time at the IEP meeting-request copy before the meeting to allow time to review.
   
   
5. Accepting goals and objectives that are not measurable-measurable goals/ objectives are imperative for your child’s IEP. Without measurable goals/ objectives, it is difficult to determine if your child has made any progress.
   
   
6. Allowing placement decisions to be made before IEP goals/objectives are written-many times after the assessment has been discussed and reviewed, the IEP committee will determine the child’s placement. Goals/objectives are always written before placement is discussed.
   
   
7. Requesting a related service instead of an assessment that supports the need for a related service-many times parents will request services such as speech, occupational therapy, physical therapy, etc. in the IEP meeting. Frequently the IEP committee will respond by stating that the student does not need the service. Instead of requesting the related service request the assessment that supports the need for the related service.
   
   
8. Accepting assessment results that do not recommend the services you think your child needs-can request an Independent Educational Evaluation (IEE) in writing if you disagree with the evaluation completed by the district.
   
   
9. Allowing your child’s IEP meeting to be rushed. 
   
   
10. Not asking questions.

Ways to Increase Effective Communication with your child’s IEP Team

1. Have a positive attitude.

1. Find out your child’s teachers’ preferred mode of communication and conference time. Most teachers cannot check e-mail during the day when working with students. Their ability to make phone calls or meet for a conference is usually limited to a conference period or before or after school.
   
   
2. You can make it easier for your child’s teacher(s) to respond by:
   1. Try to accommodate his or her conference time for meetings or phone calls
   2. When possible, try to e-mail ahead as to not require a response immediately
   3. Call ahead to schedule longer meetings
   4. Establish a communication plan at the IEP or 504 Plan meeting
      
      
3. Aim for positive interactions-keep a positive attitude about working together.
   
   
4. Listen actively.
   
   
5. Join an activity or program for parents at the school.
   
   
6. Address concerns with a problem-solving approach.
   
   
7. Talk about concerns when they come up.

Conclusion

These tips and strategies will help to increase your meaningful parent participation while strengthening the parent-school relationship. Knowing the best way to work with your child’s IEP team is essential to the development of an IEP that meets all of your child’s educational needs. Organization is vital in helping you make decisions regarding your child’s IEP. The important thing is that you are keeping documentation in one place to aid you in making informed decisions regarding your child’s education. What works best for each family regarding IEP organization may be different. Lastly, three important things to remember are that you are the expert on your child, an equal member of the IEP team, and information is power. You are the consistent presence in your child’s IEP meetings.

© COPAA (2024) 26th Annual COPAA Conference White Paper, Atlanta, Georgia. 

Introduction

Many parents of children with disabilities have experienced late, stressful nights preparing for the next day’s Individualized Education Program (IEP) meeting. This blog focuses on developing an organized, effective strategy for IEP advocacy by starting at square one: gathering data, describing in detail how the child is currently doing in school, and centering the IEP meeting on a discussion of the Present Levels of Academic and Functional Performance section of the child’s IEP.

In preparing for an IEP meeting, one of the most important things you can do is map out your child’s Present Levels of Performance in every area of their education that is affected by their disability—whether or not the school district has provided goals and services yet for that particular area of need.

For each area of need that you identify, you should gather documents that demonstrate it. This will help you, during the upcoming IEP meeting, to engage the team in a discussion of each of your child’s disability-related educational needs and deficits. It will also help you ensure that they are all addressed—and accompanied by specific data and evidence—in the Present Levels section.

In 2017, the U.S. Supreme Court issued a special education ruling that is crucial to our ability to advocate for effective IEPs for children with disabilities pursuant to the Individuals with Disabilities Education Act (IDEA). In that decision, the Court determined that appropriate progress is key to a free appropriate public education (FAPE).

The court in Endrew F. made clear that “[t]o meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. v. Douglas County Sch. Dist. RE-1, 580 U.S. 386, 399 (2017).

Note that the previous substantive FAPE standard, which was set forth by the U.S. Supreme Court in 1982, provided that the IDEA's substantive FAPE requirement is met if an IEP provides an educational program that is “reasonably calculated to enable the child to receive educational benefits.” Board of Education v. Rowley, 458 U.S. 176, 207 (1982).

The Endrew F. standard is a much better standard for our children than the Rowley standard was. A great many children make some progress in a year. But has a particular child with a disability been enabled to make an appropriate amount of progress, given the child’s unique circumstances?

A previous group of COPAA conference presenters summed up the importance of Endrew F. in a powerful way:

On March 22, 2017, a unanimous Supreme Court recognized the problem and, with clear and simple logic, put an end to the thirty-five years of aiming too low and missing the point…. Endrew F. affords an opportunity to return to a commitment to progress for all of our students. It literally demands that result. Anything less than a consistent and faithful implementation of both its letter and spirit, wherever that eventually leads us, would be an opportunity we cannot afford to lose.^[1]

Here are some of the common problems those of us who advocate for families and children at IEP meetings face, as well as some techniques for preparing for those meetings, with the goal of enabling children with disabilities to make appropriate progress.

Problem 1

You sit down to prepare for the upcoming IEP meeting, and you’re overwhelmed. There’s both too much information and not enough.

What is at the root of this problem?

The best way to make the most of an IEP meeting is to know and understand what’s been going on with your child’s education up until now. As parents, we’ve all had to postpone our planned IEP preparation because we’ve had to prioritize other things. But it’s truly important to think ahead—even if you’re saving the real heavy lifting for the night before the IEP meeting.

Too often, students’ IEPs and IEP progress reports are lacking in actual, specific data that communicates how a child is doing in school and what that child’s disability-related needs are. Without that information, it is very difficult for families to get their feet on solid ground in terms of what to ask for and how to make an IEP more effective in general.

What rights do I have under the law?

(a) Each participating agency must permit parents to inspect and review any education records relating to their children that are collected, maintained, or used by the agency under this part. The agency must comply with a request without unnecessary delay and before any meeting regarding an IEP, or any hearing pursuant to § 300.507 or §§ 300.530 through 300.532, or resolution session pursuant to § 300.510, and in no case more than 45 days after the request has been made.

34 C.F.R. § 300.613(a).

Action Item

Request and gather your child’s education records at least a few weeks before the IEP meeting.

How do I do this?

1. Email your child’s IEP case manager. For example:

Dear Case Manager:

As you know, my child’s IEP meeting will be held on [date]. Could you please send me [child’s] education records, including the following?

●       Current and all previous IEPs

●       All multidisciplinary evaluation reports

●       All IEP progress reports

●       All report cards

●       All standardized test reports

●       Attendance reports

●       All disciplinary records, if any (including office referrals and documentation of in-school and out-of-school suspensions, and Manifestation Determination Review (MDR) reports)

It will be important for me to review all of these records to prepare for the upcoming meeting. Could you please send electronic copies of these records by [date]? Thank you.

2. Go back through your emails, texts, and voicemails from school staff and pull all communications that are relevant to how your child is doing and your child’s disability-related educational needs.

3. Go through any schoolwork that has come home, as well as any daily checklists or behavioral sheets. If “traditional” sources of data are in short supply, consider ways that you can capture your child’s performance in other ways.

Focus in particular on areas that your child struggles with. Is handwriting a challenge? Pull some work samples that show this—preferably a few examples that show their handwriting over time, if you have examples available.

Has your child been assigned a multi-paragraph essay to write in the past, but they were able only to write a few sentences?

Is math homework a difficult challenge? Start taking photos of worksheets to show how much your child is able to complete correctly on their own. (If you help your child with homework, it can be helpful to write a note on it stating what you helped with. This will make it clear to the IEP team what your child can do independently and what they can do only with assistance.)

Does your child struggle with reading fluency, or have difficulty with decoding, but the school does not seem to acknowledge these difficulties? Record a video of your child reading aloud to share with the team the concerns you’re seeing at home.

4. A couple of weeks ahead of the IEP meeting, reach out to your child’s medical and/or therapeutic providers. Ask for recent paperwork from those providers and make copies of any relevant information to share with the IEP team.

Problem 2

You’re in the IEP meeting. You get through team introductions and strengths and weaknesses, and the next thing you know, the IEP case manager is flying through a series of vague goals. You can’t help but feel you’ve missed… something. Before you know it, the meeting has ended and you feel far from confident that the IEP will provide a FAPE to your child.

What is at the root of this problem?

When the momentum of an IEP meeting shifts in the direction of glossing over a child’s academic skills deficits (or strengths) or behavioral support needs, it can be very difficult for a child’s parent or advocate to slow the process and re-center the discussion on the child’s specific disability-related needs and the services and supports to which the child has a right.

Establishing the tone of the IEP meeting early on by focusing on the detailed specifics of how the child is performing on assessments—and poring over their scores—and the challenging behaviors they may be experiencing—and discussing in depth what’s causing them and why—can make the difference between a meeting that merely breezes past what’s going on, and a meeting that truly addresses the child’s needs.

Note that some members of the IEP team may be reluctant to spend a significant amount of time on the Present Levels section of the meeting. That section comes fairly early on, and team members may worry that every section will take an excessively long time if you set a slower and more deliberate pace up front.

You’ll likely find, though, that when you discuss a child’s Present Levels at length, with specific data points, work samples, school emails, and medical records to provide evidence for how the child is doing, the rest of the key IEP sections may fall into place more easily than they otherwise would. The key is to engage team members in a real conversation about the child’s present performance, establish that challenges are disability-related, and develop a common understanding among the team members of what is currently going on with the child.

What rights do I have under the law?

The IDEA requires that each child’s IEP include

A statement of the child’s present levels of academic achievement and functional performance, including—

(i) How the child’s disability affects the child’s involvement and progress in the general education curriculum (i.e., the same curriculum as for nondisabled children); or

(ii) For preschool children, as appropriate, how the disability affects the child’s participation in appropriate activities. 34 C.F.R. § 300.320(a)(1).

The IDEA also requires that each child’s IEP include

(i) A statement of measurable annual goals, including academic and functional goals designed to—

(A) Meet the child's needs that result from the child's disability to enable the child to be involved in and make progress in the general education curriculum; and

(B) Meet each of the child's other educational needs that result from the child's disability. 34 C.F.R. § 300.320(a)(2).

Remember that to provide FAPE, “a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F., 580 U.S. at 399.

It’s vital that the entire IEP team knows the child’s baseline data / present levels at the time of the meeting in order to know how much progress would be appropriate for the child over the course of the IEP year. Likewise, the parents must be able to track the child’s progress over the course of the year—via periodic progress reports—and to compare it to the baseline data / present levels to be able to assess whether the child is receiving a FAPE or not.

A lack of appropriate progress over the course of the IEP year should be a signal to the parent that the IEP isn’t working as well as it should, and that another meeting should be convened to change services and supports as needed. Additionally, a lack of appropriate progress may signal to a parent that filing for dispute resolution may be needed.

A child’s IEP must include

(3) A description of—

(i) How the child's progress toward meeting the annual goals described in paragraph (2) of this section will be measured; and

(ii) When periodic reports on the progress the child is making toward meeting the annual goals (such as through the use of quarterly or other periodic reports, concurrent with the issuance of report cards) will be provided. 34 C.F.R. § 300.320(a)(3).

Action Items

1. Making progress on this problem will take preparation before the IEP meeting. Go through your child’s previous IEPs to get a sense of the major sections and what they’re each there for. If it’s your child’s very first IEP meeting, ask the case manager for an early draft of the IEP (or even for a blank template).

As you review the major IEP sections, consider the following:

a.     The Present Levels section—including how the child’s disability affects the child’s involvement and progress in the general education curriculum—should drive the Goals section.

b.     The Goals section should drive the Statement of Services section.

c.     All of these considerations should drive the team’s placement determination.

Problem 3

Ahead of the IEP meeting, you’ve done your best to collect and present data and documentation to demonstrate to the team your child’s Present Levels of Performance. However, you’ve found that some important information is still missing. Specifically, you can’t nail down your child’s actual present level of performance in one or more areas. For example, you can see that your child’s reading skills are below grade-level, but you can’t pinpoint what their reading level is.

You’ve been preparing for a few weeks, but now it’s late at night and the IEP meeting is tomorrow.

What is at the root of this problem?

The problem likely stems at least in part from the school failing to put clear baselines in the past IEPs, and from failing to include actual specific data that is numbers- and percentages-driven in the child’s progress reports.

You may also discover that there is some specific data in the goal baselines and IEP progress reports, but the school’s systems of measurement have fluctuated over time, making it hard to track progress (or lack of progress) from quarter to quarter and from year to year.

What rights do I have under the law?

The core of the statute… is the cooperative process that it establishes between parents and schools…. (“Congress placed every bit as much emphasis upon compliance with procedures giving parents and guardians a large measure of participation at every stage of the administrative process, . . . as it did upon the measurement of the resulting IEP against a substantive standard”). The central vehicle for this collaboration is the IEP process. State educational authorities must identify and evaluate disabled children, §§1414(a)–(c), develop an IEP for each one, §1414(d)(2), and review every IEP at least once a year, §1414(d)(4). Each IEP must include an assessment of the child’s current educational performance, must articulate measurable educational goals, and must specify the nature of the special services that the school will provide. §1414(d)(1)(A).

Parents and guardians play a significant role in the IEP process. They must be informed about and consent to evaluations of their child under the Act. §1414(c)(3). Parents are included as members of “IEP teams.” §1414(d)(1)(B). They have the right to examine any records relating to their child, and to obtain an “independent educational evaluation of the[ir] child.” §1415(b)(1). They must be given written prior notice of any changes in an IEP, §1415(b)(3), and be notified in writing of the procedural safeguards available to them under the Act, §1415(d)(1). If parents believe that an IEP is not appropriate, they may seek an administrative “impartial due process hearing.” §1415(f). Schaffer v. Weast, 546 U.S. 49, 53 (2005).

The U.S. Supreme Court has also explained that Congress

required participating States to educate all disabled children, regardless of the severity of their disabilities, 20 U.S.C. § 1412(2)(C)…. It further provided for meaningful parental participation in all aspects of a child's educational placement, and barred schools, through the stay-put provision, from changing that placement over the parent's objection until all review proceedings were completed. Honig v. Doe, 484 U.S. 305, 324 (1988)

Action Item

Before the IEP meeting (even if it’s only a few hours before), develop a list of specific data and information that you will request from the team at the IEP meeting. You can anticipate that a second IEP meeting will be necessary as a follow-up once the data has been collected. Remind the team that you are entitled to meaningful participation in the development of your child’s IEP and that you can’t participate in a meaningful way without specific data that makes it clear how their progress is being measured.

How do I do this?

Take the following goal as an example:

After four quarters of instruction and practice, Student will be able to complete a writing assignment that has correct punctuation and capitalization, scoring proficient as measured by a four-point rubric.

Goals like this can make preparing for an IEP meeting very difficult due to the lack of specifics. First, it’s not clear to most parents what proficiency means. Is there a percentile threshold?

●       Make a note to ask the team during the meeting to use specific data points in all goals and in all progress reports so that you can understand how your child’s skills are being assessed.

Further, it’s not clear how the parent can tell where the child’s real challenge area is, as punctuation and capitalization are two different conventions. Further, consider whether percentages are the best ways of measuring proficiency here. Consider whether aiming for a lower number of errors per paragraph might be more appropriate.

●       Plan to ask the IEP team to have these skills separated out so that the data tracking can be clear.

Perhaps most importantly, there’s no baseline data provided for this goal. You might assume, for example, that proficiency means 80% accuracy, but how can you know if reaching 80% accuracy in a particular area would equate to appropriate progress for your child over the course of an IEP year if it’s not clear exactly what percentage accuracy they’re achieving currently?

●       Plan to request that the team include your child’s present level of performance for each of these skills in both the Present Levels section of the IEP and in the wording of the goal itself. For example:

After four quarters of instruction and practice, Student will improve his punctuation skills from a current baseline of 15 errors in a 5-paragraph grade-level writing assignment to fewer than 5 errors in a 5-paragraph grade-level writing assignment.

Problem 4

In the middle of the goals discussion, you wonder if the team’s proposed goals are right for your child, but you can’t quite articulate what your concern is.

What is at the root of this problem?

Some districts may take a one-size-fits-all approach to developing IEPs, and create goals and determine services and placements that are not based on the needs of the individual student.

Remember that the school district should develop an IEP that addresses the disability-related needs of the child identified through the special education evaluation process.

What rights do I have under the law?

The initial special education evaluation of a child

“(2) Must consist of procedures—

(i) To determine if the child is a child with a disability under §300.8; and

(ii) To determine the educational needs of the child.”  34 C.F.R. § 300.301(c)(2).

The school district must ensure that—

(4) The child is assessed in all areas related to the suspected disability, including, if appropriate, health, vision, hearing, social and emotional status, general intelligence, academic performance, communicative status, and motor abilities….

(6) In evaluating each child with a disability under §§ 300.304 through 300.306, the evaluation is sufficiently comprehensive to identify all of the child's special education and related services needs, whether or not commonly linked to the disability category in which the child has been classified. 34 C.F.R. § 300.304(c)

Action Items

Ensure that each of your child’s disability-related needs are addressed in their IEP, and that the IEP is reasonably calculated to enable them to make appropriate progress.

How do I do this?

Gather all of your child’s multidisciplinary team evaluations and read them carefully. Pay attention to the skill deficits, educational and functional needs, and adverse impacts of the child’s disability that the district has identified.

Then cross-reference that list with the child’s current and past IEPs.

●       Have the areas of need from the evaluations been addressed in the IEPs?

●       Has the child’s most recent evaluation been used (along with additional sources of data) to inform the Present Levels section of the most recent IEP?

●       Have the IEP goals been appropriately ambitious and designed to enable the child to make appropriate progress?

●       Have the services provided by the district been appropriate to enable the child to meet those goals?

●       Has the child’s placement been determined in accordance with those considerations, in a way that provides FAPE in the least restrictive environment?

Considering these questions will inform your IEP meeting preparation.

Conclusion

Fully seizing your right to meaningful parental participation in the IEP process takes planning and a focus on specific data. And just as important, it takes planning for how to steer the IEP  meeting process. In order for our requests to be granted—i.e., for the IEP team to slow down and make sure that the IEP is thorough and actually speaks to the child’s needs—we need to hone what it is we’re asking for.

We can put ourselves in a good position to harness the power of the IDEA for our children by bringing specific data to the IEP table and insisting that it be included in the Present Levels section, asking targeted questions to ensure that the team gathers any data that’s missing, and engaging in an in-depth discussion toward the start of the meeting regarding the child’s Present Levels of Academic and Functional Performance.

Kennedy Krieger Institute, Project HEAL (Health, Education, Advocacy and Law)

INTRODUCTION AND BACKGROUND

Informal school removals occur when a student is removed from their classroom or the school environment without the formal invocation of disciplinary procedures.^[1] Informal removals can include a parent being called to pick up their student from school due to their behavior without a suspension, being sent to an administrator’s office or a calm down room for extended periods of time, modified or shortened school days, or the use of home and hospital teaching (HHT) services in response to a student’s challenging behavior. Informal removals are of particular concern when used as a behavior management tool for students with disabilities^[2] whose behavior is disrupting the classroom. The use of informal removals to manage a student’s behavior may indicate that the student’s individualized education program (IEP), Section 504 plan, or behavior intervention plan (BIP) are inappropriate and may violate a student with disabilities’ right to a free appropriate public education (FAPE) under the Individuals with Disabilities Education Act (IDEA).

When students with disabilities are removed from the classroom setting, they miss valuable educational and social time with their peers.^[3] Additionally, when students with disabilities are informally removed from the classroom, it potentially circumvents important procedural protections that follow formal removals from the classroom, such as a manifestation determination meeting or suspension bans.

This blog provide an overview of the federal laws and guidance that informal removals may violate and review the types of informal removals that meaningfully reduce the amount of class time per week, including undocumented suspensions, informal removal from the classroom, overuse of quiet or calm down rooms, and misuse of Home and Hospital Teaching (HHT). We also outline how to respond to these removals to protect the rights of students with disabilities and how to address informal removals through an IEP, Section 504 plan, and BIP. 

FEDERAL LAW AND GUIDANCE

Federal law requires that local educational agencies (LEAs) provide students with disabilities a FAPE in the least restrictive environment (LRE).^[4] Additionally, in order to meet the obligation of a FAPE, the student’s IEP must be tailored to the unique, individual needs of the student.^[5] This section will review federal guidance on informal removals and how informal removals are in opposition to the obligation to of LEAs to provide a FAPE in the LRE. Additionally, this section will discuss the importance of documenting removals, particularly for the purpose of triggering a manifestation determination meeting. 

July 2022 federal guidance highlights

On July 19, 2022, the United States Department of Education (USDOE) Office of Special Education and Rehabilitative Services (OSERS) published an update to their 2009 guidance titled Questions and Answers on Discipline Procedures.^[6] The guidance first, most notably, defines the term ‘informal removals.’ The guidance defines informal removals as:

Action taken by school personnel in response to a child’s behavior that excludes the child for part or all of the school day, or even an indefinite period of time. These exclusions are considered informal because the school removes the child with a disability from class or school without invoking IDEA’s disciplinary procedures. Informal removals are subject to IDEA’s requirements to the same extent as disciplinary removals by school personnel using the school’s disciplinary procedures.^[7]

The guidance then describes several situations where, if repeated, informal removals may indicate that a student’s IEP does not appropriately address their behavioral needs. Moreover, the guidance addresses the importance of documenting removals, and the impacts on a student when they are removed more than 10 consecutive school days, or when informal removals constitute a pattern of behavior totaling more than 10 school days in a school year.^[8] 

Free appropriate public education

The Due Process and the Equal Protection Clauses of the Fourteenth Amendment of the Constitution of the United States ensure that an individual may not be discriminated against based on their disability.^[9] The constitutional safeguards of the Fourteenth Amendment, in practice, protect a child’s right to access a FAPE. A student’s right to FAPE has been codified in the Federal Code of the United States and in the United States Code of Regulations.^[10] The Federal Code defines FAPE as:

Special education and related services that (A) have been provided at public expense, under public supervision and direction, and without charge; (B) meet the standards of the State educational agency; (C) include an appropriate preschool, elementary school, or secondary school education in the State involved; and (D) are provided in conformity with the [student’s] individualized education program.^[11]

Similarly, special education is defined as specially designed instruction, at no cost to the parents, to meet the unique needs of a child with a disability.^[12] Together, these definitions require that LEAs provide FAPE to each eligible student, paid for by the state, and tailored to the needs of that student.

Additionally, Section 504 of the Rehabilitation Act of 1973 (Section 504) requires a local educational agency to provide a FAPE to each qualified student with a disability.^[13] Broadly, Section 504 requires that individuals with disabilities must not be excluded from, denied the benefits of, or be subjected to discrimination when accessing programs and activities that receive federal funding.^[14] Recipients of federal funds, including LEAs, are bound by Section 504 to provide nondiscriminatory access to their educational programs.^[15] Under Section 504, FAPE includes education services designed to meet the individual needs of students with disabilities as adequately as the needs of nondisabled students. Students with disabilities should be educated with nondisabled students to the maximum extent possible given the needs of the student with a disability.^[16]

Removal of a student with a disability, including informal removal, implies that the student’s current educational programming is not appropriate. Thus, it is likely that the special education and related services that the student is currently receiving are not adequately tailored to the student’s needs or designed to keep the student in the least restrictive environment. Informal removals often hinder a student’s access to FAPE. 

IEPs must be designed to meet the unique needs of a student with a disability

A student’s IEP is the mechanism for ensuring that a student accesses FAPE under the IDEA.^[17] An IEP is a written statement, developed in conjunction with parents and school staff, for a student with a disability that discusses the required accommodations and services that a school must meet to provide a student with FAPE.^[18] A student’s IEP must designed to meet the “student's individual educational needs as adequately as the needs of students without disabilities are met, and [] satisfy Section 504 FAPE requirements for evaluation and placement, educational setting, and procedural safeguards.”^[19] The proper implementation of a student’s IEP is linked to their access to FAPE.

When a student is informally removed from a classroom, it may indicate that the student’s IEP, including the student's educational programming and placement, is not adequately meeting the student’s unique behavioral needs. Accordingly, the IEP team may need to modify the IEP to better reflect the student’s needs and ensure the student has access to FAPE. 

Least restrictive environment

Under the IDEA, students with disabilities should be educated in the classroom with their non-disabled peers to the maximum extent possible. A classroom where a disabled student is receiving an appropriate education alongside non-disabled peers is the least restrictive environment. Any programming or placement changes that exclude a student with disabilities from being in a classroom with their non-disabled peers should be implemented only when the impact of the student’s disability is “such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.”

When students are informally removed from the classroom, such as being sent to an administrator’s office, removed from a classroom with their non-disabled peers, or sent home before the end of the school day without a formal suspension, the student is not educated in their least restrictive environment. In fact, sending students home through the informal removal process or keeping them in a staff member’s office creates prevents the student from accessing their peers at all. 

Social, emotional, and behavioral challenges can constitute an academic impact for purposes of IEP eligibility

Many students have behavioral needs but are able to maintain satisfactory grades. In situations like this, LEAs may assert that that there is no educational impact of the student’s disability that requires an IEP because the student’s grades are not impacted. However, when a student’s behavior impedes their learning or the learning of others, the IEP team must consider the effect of the student’s behavior on their learning and the learning of others, and when necessary, provide FAPE in the LRE and document in the IEP the use of positive behavioral interventions, supports, and other strategies to address the behavior.^[20] Missed instructional time may amount to an educational impact. 

Documenting removals

Though school staff are supposed to document removals from the classroom, parents should also document the presence of any informal removals, so when an IEP team considers the efficacy of an IEP, the number of days the student is actually removed from the classroom is known to all parties. It is important to document all instances of removals, especially informal removals, so that the time of instruction missed may be most accurately calculated to ensure a student is accessing a FAPE. Thus, documenting informal removals may help address the efficacy of a student’s IEP, or determine whether an IEP must be created to meet the unique needs of the student. Informal removals may also indicate that the needs of the student are not properly accommodated for in their current IEP. Furthermore, 10 or more consecutive or cumulative days of disciplinary removal may trigger a manifestation determination meeting.^[21]
 

Manifestation determination meeting

Students with disabilities under the IDEA can face disciplinary action like their non-disabled peers. However, if a school suspends, removes to an interim alternative educational setting (IAES), or removes a student to another setting for more than 10 school days, the IEP team must consider whether the behavior that gave rise to the removal is a manifestation of the student’s disability.^[22] This includes a determination of whether the conduct in question was either caused by or had a direct and substantial relationship to the student’s disability or if the student’s conduct was a direct result of the LEA’s failure to implement the IEP. If the IEP team determines that the student’s conduct was a manifestation of the student’s disability, the IEP team must (1) conduct a functional behavior assessment (FBA) and implement a BIP, if the student does not already have one, (2) if the student has a BIP, review and modify the BIP as necessary to address the behavior, and (3) return the student to their previous educational placement, unless the IEP team and the parent agree to a change in placement.^[23]

The right to a manifestation determination meeting is an important procedural right for students with disabilities. It helps ensure that students with disabilities are not excluded from the school environment for disability-related behavior that the IEP should address through behavioral support. In many schools, students with social, emotional, and behavioral challenges are poorly understood and the response to their behavior impedes their access to FAPE. Disciplinary exclusion is used to deny the opportunities of public education to students with behavioral health conditions and, disproportionately impacts students of color with behavioral health conditions.

TYPES OF INFORMAL REMOVALS

There are many types of informal removals. Exclusionary and informal removal measures may include:

A pattern of office referrals, extended time excluded from instruction (e.g., time out), or extended restrictions in privileges; Repeatedly sending children out of school on “administrative leave” or a “day off” or other method of sending the child home from school; Repeatedly sending children out of school with a condition for return, such as a risk assessment or psychological evaluation; or Regularly requiring children to leave the school early and miss instructional time (e.g., via shortened school days).^[24]

Informal suspensions

Informal suspensions occur when a school asks a parent or guardian to pick their child up from school due to behavioral challenges, but there is no formal documentation of the behavior. When a student is informally suspended, the student is effectively suspended from school due to their behavior, but it is not formally tracked. Whereas formal suspensions trigger a manifestation determination meeting after 10 days of consecutive or cumulative suspension, informal suspensions may not trigger this right due to not being formally tracked.  

Removal from classroom

A student’s behavior can often lead to their removal from the classroom without formal documentation of the removal. As with informal suspensions, removal from the classroom without documentation can create concerns about whether the IEP team is tracking how much instructional time has been missed by the student due to behavior and may conceal the need for additional behavioral supports. Types of informal removal from the classroom include student being sent to the office to calm down or discuss their behavior with administration, time in the in-school suspension (ISS) room without documentation of an in-school suspension, as well as overuse of a ‘flash pass’ that permits a student to leave the classroom to seek a trusted adult.

Modified/shortened school days

In circumstances where a student’s IEP team feels that the student is not able to meaningfully access education throughout the school day, the team may elect to institute a modified school day. An independent fact finder in Oregon found that while the use of shortened schools days is rare (less than two percent of students), their use often led to “...a dramatic decrease in the amount of instruction received, a loss of opportunities for interaction with peers, and an educational program that put them in a position to lag further and further behind their peers in both academic and social emotional skills.”^[25] Of note, in the sample of Oregon public schools evaluated for the report, the fact finder did not find a single instance of a student returning to full day instruction after being placed on a shortened school day.^[26]

Similarly, Lewiston Public School District of Maine (the District) entered into a voluntary settlement agreement with the United States Department of Justice regarding, in part, the prevalence of modified school days for students with disabilities. Under the terms of the agreement, the District agreed to, among other things, administer shortened school day determination in a manner that does not discriminate on the basis of disability.^[27]  Specifically, the District agreed to undergo the following procedures before placing a student with disabilities on shortened school days:

●       order and conduct FBAs to determine the root causes of any behaviors that led to the consideration of shortened school days,

●       develop and implement with fidelity BIPs regarding each behavior of concern,

●       implement one or more evidence-based interventions to address behaviors that led to the consideration of a shortened school day,

●       consider whether past instances of placing students on shortened school days aided in managing behavior, and, finally,

●       consider and test all reasonable alternatives to keep the student in the full-day program.^[28]

 The District must exhaust the procedures above before placing any disabled student on a shortened school day schedule.

Shortened school days are inappropriate to use as a behavioral management tool due to the amount of missed instructional time and should never be considered prior to ensuring that high quality FBAs and BIPs are developed and implemented if a student’s behavior is potentially related to their disability.

HHT as behavioral management

HHT programs are designed to meet the immediate educational needs of students who are unable to physically attend school due to a serious physical or mental health condition, such as when a student is undergoing chemotherapy.^[29] When a student’s behavior is greatly interfering with their ability to learn, their safety, and the learning and safety of others, the schools sometimes use HHT to avoid managing the student’s behavior in the school setting. However, HHT programs are never appropriate when used exclusively for behavioral management. In fact, HHT may reinforce a student’s behavior if the function of the student’s behavior is escape.

STRATEGIES TO ADDRESS INFORMAL REMOVALS

The July 2022 Guidance from OSERS describes how informal removals could constitute a disciplinary removal and highlights evidence-based practices that address behavior. The guidance discusses using proactive and preventive strategies such as using culturally and linguistically responsive practices and ongoing professional development for educators on the IEP team.^[30]

When a school informally removes a student with a disability from the educational setting, it is vital to ensure that a written record of the incident is created to generate documentation of the removal. Often, the most efficient means of creating this documentation is for the parent or guardian of the student to email the school principal and the student’s IEP or Section 504 chair notifying them that their child was removed from the classroom, the cause of the removal, and the duration of the removal. Creating appropriate documentation is vital to ensure that any patterns of removal for behavioral concerns are documented. This data will allow the student’s IEP or Section 504 team to determine if a student requires additional behavioral support in the classroom to access their education.

Additionally, in situations where a parent or guardian is receiving requests from a student’s school to pick them up due to behavioral concerns without a formal suspension, it is appropriate for the parent or guardian to refuse to pick up the student without formal documentation of the removal, its cause, and its duration. This may result in an increase in formal suspensions in the short-term but will allow the student’s IEP or Section 504 team to review the causes of the removals and incorporate behavioral supports, as necessary, up to and including a change in educational placement if necessary.

Finally, parents and guardians should never consent to the use of HHT as a behavioral management tool. This is not the appropriate function of HHT, and the student will not receive adequate access to education nor appropriate behavioral support. If a school cannot meet a child’s behavioral needs, and as a result, the student is unavailable for learning, more restrictive placement options can be considered. Potential programs may include regional programs specializing in educating students with significant behavioral support needs, a public separate day school, or a non-public placement if no public placement is appropriate. 

Addressing informal removals through IEPs, Section 504 plans, and BIPs

Informal removals can be addressed through IEPs, Section 504 plans, or BIPs. The goal of support provided through an IEP, Section 504 plan, or BIP is to address the underlying behaviors that are leading to informal removals.

Under a Section 504 plan, the student support team can consider different behavioral supports that could help the student spend more time in the classroom, such as adult support, movement breaks, frequent check ins, access to a calm down corner within the classroom, or sensory breaks or tools, among other accommodations. The student support team can also consider services, including occupational therapy or counseling services, that could support the student.

Similar accommodations can be provided under an IEP. In addition to accommodations and classroom supports, if the student’s behavior is impacting their ability to access their education, the IEP team can consider goals and services that can address these behaviors. For instance, if the student grows aggressive when presented with non-preferred tasks, a behavioral goal can be to persevere on a non-preferred task for five minutes, depending on the student’s current performance. Additionally, students with behavioral concerns may receive services, such as counseling, occupational therapy, or speech-language therapy, among others, to address the skill deficits underlying the student’s behavior. These are non-exhaustive examples; the exact goals or services will depend on the specific needs of the student.

Furthermore, for students whose behavior is not managed through low level behavioral support such as frequent breaks, check ins, or sensory accommodations, the IEP team or student support team may also consider an FBA. Through an FBA, the school psychologist will observe the student and collect data on the targeted behaviors (i.e., whichever behaviors are interfering with the student’s ability to learn). The school psychologist will draft a report that summarizes the student’s behaviors and the believed functions of the behavior (e.g., sensory seeking/avoidant, access to a tangible item, access to adult attention, avoiding work, etc.). If the IEP team agrees that it is warranted, the school psychologist will draft a BIP. The BIP will include response strategies as well as goal replacement behaviors. For instance, if a student is exhibiting aggression and the hypothesized function is to gain access to an item, the replacement behavior will target the student using communication strategies to request that item, rather than using aggression to access it.

If a student continues to be removed for behavior, the student support team or the IEP team can consider more in-classroom behavioral support, modified goals, better data and progress tracking, related services, or greater levels of adult support. If the student continues to be removed for behavior or does not progress on their IEP goals, the IEP team may consider the appropriateness of the student’s educational program or placement. 

CONCLUSION

The misuse of informal removals as a behavior management strategy interferes with disabled students’ right to FAPE under federal law, including the IDEA and Section 504. Informal removals are a broad category that include all types of removal from the classroom that are not documented within a student’s educational record, and thus, not reflected in their IEP, Section 504 plan, or BIP. Examples of informal removals include informal suspensions, removal from the classroom without documentation, and the misuse of modified school days and HHT as behavioral management. To ensure procedural rights, including the right to a manifestation determination meeting are respected, and that a student is receiving sufficient behavioral supports to access FAPE, parents, advocates, and attorneys of disabled students should ensure that informal removals are documented and appropriately considered when placement and service decisions are made.

© COPAA (2024) 26th Annual COPAA Conference White Paper, Atlanta, Georgia. 

In honor of Disability Pride Month, and to honor all of the many unique talents and skills people with disabilities bring to our workforce and communities, we are repurposing this 2024 Conference White Paper and session transcript.

BACKGROUND

In COPAA we focus our work on students with disabilities and their educational needs including helping families to navigate the special education system and understand IDEA to get an appropriate education. What we do not talk about as frequently is the “view from the inside” of how the student might be viewing himself/herself as someone with a disability. Four COPAA members who have Autism Spectrum Disorder, ADHD, Dyslexia, and are Severely hard-of-hearing will discuss their own experiences and how the disabilities affected their lives and how they feel it affects students in Special Education, and how it has changed since they were students. 

Attorneys with Disabilities (AWDs) face considerable challenges in the legal profession, from being denied accommodations and modifications on gateway examinations such as the LSAT and bar exam or during law school, to difficulty obtaining employment because of stereotypes or negative assumptions about the capability of AWDs. Disability, unlike other historically underrepresented class of people, is not typically included as a category to which diversity initiatives and recruitment efforts are directed, thereby contributing to the under-reporting of AWDs. At the current time there is not reliable data on the percentage of AWDs who are employed in general or specifically working as attorneys vs. another career. 

Historically most disability accommodations have been geared towards those disabilities that are both visible and more easily understood by laymen. These include blindness and visual impairments, deafness and hearing impairment, mobility impairments, and missing limbs. There has been a greater struggle for those who have “hidden' disabilities including autism spectrum disorder (ASD), attention deficit hyperactivity disorder ADHD, Dyslexia, Deaf and Hard of Hearing, Mental Health Conditions and a myriad of other disabilities that are not visible and not as easy to understand or measure in a quantifiable way.

Another challenge in measuring the number of AWDs has been that many with “hidden disabilities” decide to “stay in the closet” and either deny their disability or hide it because they are afraid of the social stigma surrounding disability. The three presenters will discuss what they are doing to change social stigma and how they learned to overcome it and how they use that to teach others including children with disabilities to not run away from their disabilities or the label attached. As we know it is much easier to convince a child with a disability to engage in special education services when they are more willing to accept their disability and see successful adults who went through similar challenges and who can show them not to let the disability define you.

There is a misconception that most people who practice in this field came to do so because they are parents of a child with disabilities. Several decades and generations of students after the passage of the IDEA, it is important to recognize that many of us were students with disabilities.

Michael Gilberg

So a little background. I don't know if we ever said this before, but a few years ago, before we decided to do this presentation, because we always talk about how in COPAA we represent children with disabilities, and we don't talk about children with disabilities becoming adults with disabilities, and that many of those in in the field are now practitioners. Now, there are a number of us who are, who are, who are, who were once children with disabilities, the children we represent. We think of special ed attorneys as typically parents of children with disabilities, but not necessarily the people themselves. So that's why we're all here to share our life experience, and as Karma put it, nothing about us without us, which is a common phrase of the disability community.

So, with that, I'm going to open by talking about autism. As they say, you've met one person with autism. You've met one person with autism. As I'm sure many of you have heard, everybody with autism is different. There is somebody here today who is presenting [her name is] Elizabeth Bonker, who I serve with on another board, She is autistic and non-speaking. I don't have that challenge, obviously. So you know, when people say to you, you don't look autistic, I'm not sure what that means, or they tell me, you don't seem autistic. Autism comes in many shapes and sizes, and when I was a child, everybody assumed autism was all kids banging their head against the wall, not able to speak. We now know that there's a wide spectrum, from people like me and friends of mine to people like Elizabeth to people with intellectual impairments.

Autism is a neurodevelopmental disability that affects the ability to process information, particularly in the areas of communication and social interaction. As we know, many of the children we represent who have autism have a lot of difficulty with social interaction. Growing up, I was always that kid. I did fine academically, but my social skills were not great. I would have loved to have Ptahara's social skills growing up. I think the issue is that we see we try to fit everybody in a box, and everybody's different.

As we know, the number of incidences of autism is rising. It's now one in 41. I think that's the most current number. A lot could have changed in the month or two since I updated the slide, because it keeps rising, and I don't believe it's that we have more autism. I think the diagnostic criteria, particularly among females, is getting better. Women have been classically under diagnosed with autism, because what they say in schools when they're young is the boys with autism act out. They're aggressive. They make themselves known. The girl’s kind of retreat into themselves and are very quiet and under the radar, and so girls get under diagnosed. Autism is a spectrum condition. As I said, no two people are alike. Which is why, when people say to me, Temple Grandin, who's a well-known autistic, will say to me, but you're not like Temple Grandin. I'm like, No, I'm not like Temple Grandin. But everybody thinks all autistics must be Temple Grandin.

Autistic people can have special interests. Some common ones include trains, I always say Sheldon on The Big Bang Theory, even if they don't say he's autistic. He is autistic. Dinosaurs, science fiction, Disney. I have some friends who are obsessed with Disney, who are not autistic, but makes you wonder, these people who go to Disney four or five times a year. Sports, video games and some of them obscure ones, toilets, roller coasters, Greek mythology. I had a client once he was obsessed with toilet bowls. He would go to people's homes and say, Can I see your toilet bowl? And people would find that unusual. And his mother didn't know how to handle he knew everything about how they worked. And I said to her, well, have you ever thought about a career as a plumber? It's a good career. It's never going to go out of style. Technology is never going to replace the need to go to the bathroom, and the mother's like, you know, you're right. It doesn't seem as weird if he's into toilets if he's a plumber.

So, you know, people can have obsessions. The problem is when the autistic special interest goes into an area that can be not constructive. I once had a client, his special interest was sex, and they had to stop him from masturbating in public. That's when the special interest becomes problematic, when it leads to socially inappropriate behaviors. I've had clients with very obscure special interests, and some who have special interests, and some of us we don't, as I've gotten older, I don't really have what I would call a special interest that way. Or maybe it's helping people, which doesn't seem so strange.

There are three levels of autism. Level one is people like me and many of my friends who are autistic attorneys or professionals. There's some support, but generally speaking, people are independent. Level two requires substantial support. People have some independence, but not total, and level three is substantial support. So these are usually the people who are non speaking and intellectually disabled, because we live in a world where if you're non speaking, you're presumed to not to lack competence. Sometimes the the borders between level one and level two and level two and level three are hard to distinguish.

[There are] controversies in autism. One big controversy is over what's called ABA, as I'm sure you've all heard, applied behavioral analysis about whether people should be forced to do things, whether it should be used to "normalize" people, versus letting people be who they are. Of course, certain behaviors that we all have to we have to address, because you can't live in this world. We all make certain agreements to living in this world. You can't go around hitting other people. A lot of young autistic children run away and they want to run on the street. You can't just say he's autistic, let him run in the street.

There's this controversy with ASAN, the autism self-advocacy group and Autism Speaks. Then there is ASA, the Autism Society, which I'm involved with and is just kind of the middle ground. The other two are at the extremes and had issues over the years, although they're working better together now. The controversy is over the puzzle piece versus the Infinity symbols. Some people care a lot about this. I don't care.

Some people have a controversy over the status of blending standing out versus blending in. Some people believe autistic people should try to blend into society. Some believe autistic people should stand out. I think it is a personal choice.

There's a neurodiversity movement and then the other diversities, race, gender, sexual orientation. Autism is clearly under diagnosed in the African American community, it's clearly under diagnosed in other non white communities. There's also a high range of being LGBT, gender non conforming. Within the autism world, my mother is always surprised when I tell her that in the autism world I'm super masculine, being a straight man who identifies as male, since not that manly, but in the autism world, I'm considered super masculine. These are different things related to the autism spectrum. People with autism tend to have executive functioning issues.

There tend to be a lot of people that "stim" I don't have that issue, but a lot of people do with a flap their hands, or they'll fidget with something. You know, depending what the stim is, it can be noticeable - biting their nails or playing with their hair. Nobody cares about those. When the stim gets distracting or becomes problematic.

Communication differences. There's a lot of Autistics who might hear you, but they don't hear you. If you know what I mean, meltdowns, autistic people can be triggered, which leads to meltdowns, which leads to problems. I know what that's like.

Issues with relationships. So I think this was a great graph. I think actually Robert found it for me. So this is the autistic pride symbol they've been using lately, the infinity symbol, which is kind of replaced the puzzle piece because of autism, speaks stigma.

In summary, people with autism do not need to be fixed, just taught to live in the world. People with autism often have high anxiety, obsessive or repetitive thoughts and social isolation leading to depression. Suicide is the leading cause of death of autistic people without intellectual disabilities. Among those with intellectual disabilities, it's epilepsy. Epilepsy is very common in those Autistics with intellectual disabilities, those of us without intellectual disabilities, it's not a thing. I don't know why.

I will just say the way all of this informs my practice. I always say to parents and to schools, I was that kid, don't give up on him. I know what it's like when schools tell me this kid is autistic, he'll never learn. I tell them, that's what was said about me. I always tell the story that when I was in sixth grade, my mother was told I would never graduate high school, and now I'm a lawyer. Unfortunately, that social worker who told me that is now dead, so I couldn't get the satisfaction of telling him, because I Googled him about 10 years ago and found his obituary. Because today with Google, you can find anybody.

Robert Tudisco

People say you don’t seem ADHD, you are not hyperactive. Not everyone with ADHD is hyperactive, but I was spectacularly obnoxious as a child. It was very difficult for me to focus, and it led to a lot of struggles. There are three types of ADHD, and when I was undiagnosed in the 70s, they didn’t call it ADD, they called it BAD, there were just bad kids. Growing up in Catholic schools was not an easy place to be when you didn’t conform.

The three types are hyperactive, inattentive, and combined type. I pretty much think everyone is combined type. I am not a doctor, but as my fellow attorneys here know, you need to give a disclaimer, I am not a doctor, this is from my 59 years of experience with ADHD. There are two types of hyperactivities, physically bouncing off the walls and causing a behavior issue, which is quickly identified, and there is also cognitive hyperactivity, which I will talk about in a little bit. So, I think that from an attorney’s perspective the hardest kid to get services for is the inattentive type because that is the kids that is sitting in the back staring out the window.  People assume they are lazy and not applying themselves, etc. 

I became a prosecutor – street crime in the South Bronx, I became a defense attorney. Shortly after my stint in private practice I realized I needed to do something. It really was a change in my life, and as Michael said, we can identify with the struggles and the frustrations our clients are feeling. I see in the face of each kid the frustration. Even when I was an undiagnosed kid growing up, I knew there was more going on behind my eyes than I was able to get credit for in school.  And it was very frustrating to me. Being an advocate or an attorney representing this population, it’s like a second chance to really make people aware of the struggles that we couldn’t articulate. A lot of my clients are on the spectrum and can’t speak up for themselves, so it’s up to us to provide a voice for them. 

I can tell you what ADHD is not – it is not a bad kid or bad parenting. We are not all a little ADHD, we are not. Just as there is a significant difference between clinical depression that you have to take medicine for vs. sadness. It’s about the level of impairment and the continuing nature of it. ADHD is a neuro-biological disorder affecting the pre-frontal cortex of the brain. And also the neurotransmitter system in our brain. Kids with ADHD are thrill seeking, pushing the envelope, they are seeking something they are not able to do on their own.

I think sometimes people use the term Executive Function when they don’t want to label someone with ADHD. Executive functions are the portion of the brain that manages organization, prioritization, time perception. They say people with ADHD are poor time managers and that is a gross understatement. It’s always thinking you have more time than you do.  My wife introduces me as her “late husband” because I am always late and it’s a source of frustration in our relationship. Impulse control is, in my opinion, the behavioral culprit. The child knows the difference between right and wrong, but that’s not the issue. It’s not being able to control the impulse.

Attention regulation. This is another gross understatement in my opinion. Parents come to me and say he cannot pay attention, but he can play video games for 10 hours. This is because ADHD is an inability to REGULATE attention.  There is either an inability attend to something or a hyper focus. There is no midline. We are peaks and valleys and it can be really frustrating to those around us.  Think of it in terms of concentric circles. Anyone can have mild issues, but when it is so severe, it rises to the level of diagnosable ADHD. So flip it around. Someone with an executive function impairment does not always have ADHD, but someone with ADHD will definitely have an executive function impairment. There is also a short-term memory difficulties.

Our bodies are not wired like a lamp with one cord, there are many circuits that communicate through neurons. I think if it like an airport where planes with people coming from all over the world, but instead of several international airports, there's one small landing strip. Now, you have got these planes coming in from everywhere, but there's no place to land. So, what they do is they stack them over the airport in these holding patterns, okay, but if one of those planes had a crisis, there was a mechanical failure, there was a bomb, somebody was sick, instant clearance to land because it's an emergency, and that's how people with ADHD operate through our lives.

Okay, one other quick thing I want to say, and this has to do with a lot of my clients, ADHD is not an intelligence deficit. It's a performance deficit. It's very important that you understand that most of all of my clients are extremely, extremely bright and talented young people, but they often trip over themselves. A lot of times with these kids, I will hear it's not that the work is so much harder this year. It's that there's so many more things I must remember. They must remember to organize their paper. They must remember to bring their lunch. You have no idea how much anxiety is involved when you forget something so insignificant, like that. They must remember to bring the money for their lunch, if they're doing that, to bring the right book to class, okay, to bring the right notebook. I was the kid who never, ever had a pen in school. Okay. Also, as they get older and make different transitions, they are given longer term assignments, and even if that, they have to keep track of in terms of time and content. So, you know, you give them six months to do the book report, and it's that night before, it's the plane with, you know, the accident that's waiting to happen. Okay, that's the only way they can move forward. Okay, just to finish up, this is a quote from Einstein that I love. Okay, everybody is a genius, but if you judge a fish by its ability to climb a tree, it'll go through its whole life believing that it's stupid.

Pthara Jeppe

As I mentioned before, I'm extremely dyslexic. I was the student who experienced almost every academic environment that the New York City Department of Education had to offer. And I don't mean that lightly. Everything from general education with what we called, back then, resource room, now sets to six to 112, to 112, to One to One. Everything they could think of, and I was not decoding, right? I was formally evaluated at eight years old. And so people will say to me, Oh, my goodness, that is so young. And I will say, Yeah, but I couldn't spell anything, including my name. So, what were you doing for eight years?

I am now an attorney in New York City, as I mentioned, and I think my experience really informs my work with my clients, and not necessarily the clients that have my exact disability, but how I approach my cases. I find that a lot of times parents will call, and I'll be doing an intake and the emotion that they have isn't necessarily rooted in the detail, in the facts, but it's rooted in this idea that my child is worthy of you taking the time, and that my child is capable, and my child is smart. 

One of the things I do in the beginning, as I say, I've already I've already assumed that. When you step into my space, your child has already a level of humanhood in my presence. I presume that they are competent. That's I think, first and foremost. I also understand the complexities of intersectionality. I know what it is like to have a disability, but also be an African American, also be a woman, also be from the inner city, etc, etc. And I took the opportunity to learn that, right? I also decided to get a master's in it.

How do I get the right program and services? Because that's what the IEP says. But let's talk about this, right? What does this diagnosis of autism mean for you and your community? That is where that's at during that “freak out moment” for the family. What does this mean? I'll have parents that'll say to me, you know, can I ask you a personal question? And I most always say, absolutely. And sometimes the question is, what is it like to be in that class of six? Only six students? Should I put my child in a class like that? Or I'm afraid to put my student in a private school or a nonpublic school, because I'm told they'll never get out. And one of the first things I say is, well, it's not prison, right? You're not stuck there.

But let's talk about that. I'm able to say, you know, I'm 34 years old, that no one has ever asked me at a bar, on a date, in an interview, how many kids were in your third-grade class? And oftentimes parents will say to me, I guess you're right, right? And so, I'm able to say, we're going to talk about your child at this moment and what they need, right? And the goal is to get them to a place where they become productive members of society, because then that's the question people will ask “What do you do? Where do you come from? Where'd you go to school? What do you like to do?” Those become the questions of a student who gets the services they need.

I'm not going to go into a lot of detail, but dyslexia the colloquial term for a specific learning disability that is neurobiological in origin. It's categorized by the difficulties with accurate and fluid word recognition and by poor spelling and decoding abilities. This is quoted from the International Dyslexia Association. I encourage you to reach out to local dyslexia organizations who have a lot of good research that I'm often into, not just IEP meetings, but MDRs, etc. Oftentimes it helps you being able to connect what's going on with real world experiences.

I'm not going to get into the science of it, but because, as was mentioned by with Robert with ADHD, because it's neurobiological in origin, there have been enough studies now that we know that our neural pathways and its connectivity are different for those who have dyslexia, right? So, it's not this idea of being exposed to more words or trying harder, right? When we use techniques like multi-sensory education in the science of reading, we're really talking about how to build those neural pathways in a dyslexic reader. I think I mentioned a little bit about some of the ways in which dyslexia manifests itself, oftentimes, reading, which is really phonemic awareness, decoding word accuracy, fluency, reading comprehension, so maybe you can decode the word or read the word, but you don't know what that means, or the spelling or writing, the ability to encode and math, especially as students get older, and there's more word problems In mathematics. When I think about how to be successful with dyslexia, I obviously am an advocate for multi-sensory instruction rooted in the science of reading accommodations and assistive technology, and I'm very adamant that this is what should happen as early as possible.

We often think about maybe K-12 and what that looks like. What I often like to say, I'm dyslexic 24 hours a day, and I say this in meetings for educators who are going on and on about how terrible this student is during their [lesson] period. And I'm saying this child had this learning disability from time they woke up to the time they go to sleep. I am unable to read my toothpaste that I brush my teeth with, my alarm clock probably reversed on me, all before I got to school. The idea is that these tools are going to carry with me beyond the classroom, and so it's important that we integrate them as early as possible, and that educators and students and families must be part of an ongoing dialog. It's not this one size fits all, quick fix. When I look back at my own journey, I tried to think of three things that really stood out to me in terms of my own personal “success.”

One of the things that has been consistent is that there have been a lot of challenges and a lot of obstacles. I say that because I often speak to people who are looking at the result, which is me standing here today, but I say that to a lot of my clients and a lot of my parents, to say, you're not alone, that this is part of the journey, and that we are working together to take this day by day. And I think that that's super important, because here at COPAA, I created a network of colleagues who have disabilities that I can refer to and say, How do you do X, Y and Z? And though we may not have the same disability, at least, I know it's a starting point. And I think one of the things that many people with dyslexia related learning disabilities share is this resilience and tenacity that is often overlooked. I'm often in IEP meetings and speaking with teachers and parents, and you know, it's “they just don't pay attention, they just don't sit still. They're just not reading.” I remind them, they're still going to school though - they're 17 and left back. How many times have we failed them (not them failing). The tenacity to show up every single day at something your brain was not wired to do should be the place we start with, right in our everyday lives and in our casework. So those are my three takeaways that I think distill my life journey and others.

Karma Quick Panwala

I'd like to inform you that I'm now actually deaf. Somehow, I have had more hearing loss in the last year, and so I'm profoundly deaf in my left ear, so I now call myself actually deaf instead of severely hard of hearing. Just a few things to go over with you today. Being hard of hearing is not what it is in deaf and hard of hearing communities. But let me back up.

It's not loud or soft. It's not turn the volume up and everything's okay. It's not hearing aids, or a cochlear implant, and just like glasses, everything is hunky dory. It is so much more complex than that. I cannot just slap on hearing aids or cochlear implants and everything's hunky dory, because I still don't have access to speech. If anyone has a hearing loss below 60 decibels, you can't hear any of those sounds. If the hearing loss intersects with what is called a speech banana, you will include some of those sounds, but exclude others, meaning we're not catching every part of every word that is said. Can you imagine sounding like something sounding like Swiss cheese? You don't hear the whole parts of the word. You don't know when someone has begun speaking or when they've ended and there are things that were hard to identify. While my phonetics might be pretty good, my hearing isn't, and I don't know which pronunciation it is, even if I'm lip reading someone.

A lot of the accommodations that I use have been used in school and work. A lot were in my IEP starting in kindergarten, and I still use many of them today. Preferential seating, I will always get myself as close to the speaker as possible, because for me, lip reading is one of the keyways I understand speech. Preferential seating, though, doesn't just mean front and center. It means wherever the student is going to get the best amplification or the best sound for them. Preferential seating could even be off to the side to minimize background noise, especially if you have a student that has captioning or ASL checks for understanding and repetition. The last thing you do, please, dear God, do not just walk up to someone say, did you understand what I said? Can you repeat what I just said? You need to say, can you please repeat back to me the three things that I just got? Or I want to make sure that you understood that I just pointed out these three notes on the board, and I want to make sure you get them in your notes. It's clarifying that concept.

For someone who is deaf and hard of hearing, it needs to be visual self-advocacy skills and goals. Oh my gosh, get these into the IEP, please. My mom, who is a teacher, made sure that I had self-advocacy goals in my IEP from the get go, so that when I didn't understand someone, I could just say, “I'm sorry. Can you repeat that all the way down to the exact verbiage that I would use?” Karma is currently not using any self advocacy skills when she does not understand what a person has said. That's the baseline, the goal. Karma will pick one of three phrases.

• I'm sorry, could you repeat that?
• Hi, I didn't hear you. I need you to repeat that. Could you please?
• I’m sorry, I am not sure I got the point. Can you please rephrase?
  
  

That's a great goal to have in any kid’s IEP you've got your baseline, you've got your goal, it's measurable, and it helps the student get comfortable with their disability and how to start navigating conversations and communications. It's the type of self-advocacy goal that almost any student with any disability can have, if they're comfortable and they start young enough to say ”Hey, this is what I need.”

DO NOT ask me to take notes. I never learned how it was always an accommodation in my IEP. It was an accommodation in college and law school and, Dear God, it is an accommodation for me now [at work].

CART services. I'm using it today. Here's Heidi over here. She's been hanging out with me all of the COPAA conference, I have CART providers that I use on a regular basis, and I didn't start using cart until law school. It saved my life. I wish I had it earlier on, but the technology wasn't exactly there, and it wasn't as widely used in the 1990s. Now, CART providers are in short supply and high demand.

I also want to note that automatic speech recognition on video conference platforms, you guys are getting that right here. This is automatic speech recognition from Microsoft Teams. It is why COPAA has required that everyone who is presenting have a PowerPoint presentation, because this is Microsoft Teams. Ai automatic speech recognition. If you've been reading the captions throughout the conference, you've noticed that they don't quite get everything right. Microsoft Teams is really pretty good, and it's really good right now because I'm not using any acronyms, I'm not saying any case names, I'm speaking directly into a group, so the automatic speech recognition can pick up what I'm saying pretty clearly, but it doesn't contain any environmental sounds. If there's an alarm that goes off, I'm not going to know it from automatic speech recognition. If people are laughing in the room, I'm not going to know that either. If some an emergency happens, if people rush to one part of the room, automatic speech recognition is not going to pick that up, but a captioner will. So, I'm really grateful that Heidi's been hanging out with me, because I know when people are laughing at things, I have an idea of any other promotion or environmental sounds that are really important for me to know and that provide a lot of contexts for my understanding of the environment that I'm in.

I will also say this as an accommodation of my workplace, which is virtual. My office uses Google workspace. We could use Microsoft Teams, but there was an overwhelming vote to use Google, because we live in the Bay Area and everybody knows Google, and I guess we just have a penchant for companies that are headquartered close to us. So all that being said, Google's automatic speech recognition on Google Meet is really pretty good, and it's one of the gold standards for automatic speech recognition, which is why my firm uses that. And if you're going to have a meeting with me, we're going to be on Google Meet Interpreters. These are interpreters that literally sit there and just repeat everything that is said so that people who communicate by lip reading can understand what is said.

I turn flight attendants into oral interpreters for me when I'm flying, the very first thing I do and I pre board based on disability, say, “Hey, I'm deaf. I'm not going to understand anything, or literally anything that comes on the over the announcements on the plane. So as long as the flight crew can move about the cabin, I need you to come to my seat and repeat verbatim what was said so that I can lip read you. That's the only way I'm going to understand anything. And don't, please don't look at the safety instructions. I got that in my seat. I got that on the screen in front of me. We don't need that. We don't have time for that. But anything else, I'd like to know when the trash keeps coming through and they're going to pick up my trash, I'd like to know if there's something really cool outside the window of the airplane.”

ASL interpreters. This one's pretty self-explanatory. However, it's really good to know that there are your regular certified ASL interpreters, and then there are DCIS or CDIs certified interpreters of the Deaf, and these are deaf people who interpret, and that's because so many people who grow up in the Deaf culture, and I mean uppercase D, Deaf have a different kind of sign language than the ASL often talk to hearing people or people from outside the deaf community. So when you use a certified interpreter of the Deaf, you're actually having someone who understands the difference between colloquial ASL and the ASL that is used by the deaf community, and those who have not had any experience outside the deaf community.

The last one is one that I love. I use it all the time, and my husband hates it because it means he has to take care of the kids. I literally have “deaf time,” and I have to be assertive about taking my deaf time. I love conferences like these, but after the conference, I need to go back, and you know, to veg out. I need to not communicate. Yes, I'm going to be on Netflix. I'm going to be streaming, because nobody has to communicate with me at all to focus on anything, you just have to read the captions. I need to not focus on any communication because it takes so much concentration and so much energy to strain, to hear what's being said, to focus my eyes on the important visual parts of communication. And don't even get me started on the amount of screen time I'm getting when I'm reading cart all day.

Okay, notable moments in my life, The Good, the Bad and the Ugly. So I'm one of the kids that entered kindergarten in 1986 what happened in 1986?  The IDEA became the IDEA, right? We went from Educating All Handicapped Children's Act to the idea. Great, timing. Awesome. I've got an actual IEP. Okay, so I was screened for vision and hearing upon entering kindergarten, and nobody had any idea that I had a moderate hearing loss for years. My mother is a soprano she's a high school vocal teacher, by the way, and my entire hearing loss was in the lower pitches and the lower frequencies, as you could see by that audiogram I just showed you, you know, started down low, and they kind of sloped up, while all of those X's and O's were further up when I was in elementary school. So no one had any clue that I was actually moderately hard of hearing by the time that I got into middle school and high school, it was very clear that I needed additional accommodations and modifications. But at the same time, even though there was absolutely nothing wrong with my cognitive intelligence, there was absolutely nothing demonstrating that it was struggling to access academics or anything. All of my teachers told my mom that I would never be anything more than an average student with average intelligence and an average life. Nice. Like Michael said, I kind of want to find some of those teachers again, and I'm seriously considering making them up on social media. But I digress.

I did decently. I had a phenomenal teacher for the deaf and hard of hearing, and that was my saving grace, getting through my 12 years of or 13 years of post-primary and secondary education with an amazing teacher of the deaf and she was there for weekly check ins. That was the service that I had in my IEP, 30 minutes to an hour a week of teacher of the deaf services. And so the two of us would just go in and it would be anything from, okay, let's work on some self-advocacy. Let's work on some of your academics. What concerns do you have about your teachers and your accommodations getting implemented? 

If we have our kids meeting with the resource teachers, and our kids know what the accommodations are in their IEPs, and they can take some of that time with the resource teachers to say, “hey, you know what in my algebra class, the teacher is always turning their backs and writing on the board, and they never turn around.” It can be liberating for them. If we can start building those self-advocacy goals early on, and if we start telling our kids about the IEPs and the goals and the things they need to be working on, we also help them become better self-advocates.

One other really, really big thing, and I think this is something that as COPAA, we need to focus a little bit more on. And I would love to see a half day, a full day presentation in the pre-conference on Bullying. That was one of the biggest takeaways from my K through 12 education was constant and repeated bullying. By the time I graduated from high school, I had awards in music. I had awards in the dance team. I was on the honor roll constantly, but I had maybe two friends. I'm so glad that I had those advocacy goals in my IEP meeting, because I was able to turn to people sometimes and I'd say, “I'm sorry if you're going to whisper something behind my back, you should know that I'm an expert lip reader, because that's been in my IEP so don't just lean over to the person next to you to say, God, She's so stupid, because I can see that.” Oh yes, I can.

There are so many times when people are like, Oh my gosh. Karma can look sideways. She's that good. I'm like, well when it was in your IEP from the time you were five years old, and you're now in your 40s, of course, I'm going to be good at it. But please do not ask me what Steph Curry said on the floor after he gets fouled. Okay, I can't always see that. Besides, he likes to have his retainer in the mouth. That's not exactly helpful when I'm trying to lip read someone.

So yeah, the bullying, I had very low self-confidence. Socially, it was a struggle just trying to have a normal middle school and high school experience. Just from the standpoint that I didn't get asked to dances, I had to proactively pull some people together, or proactively ask to join people if I wanted to go to a dance or go to prom or be a part of a group. There were a few sleepovers that I had a great time with. But I think this is the other thing that schools just do a really pathetic job with, is actually navigating the social landscapes and helping our disabled kids navigate the social landscapes at school, because that is one of the most difficult things that kids with disabilities will always, always have. And you know, we talk about lunch bunches, we talk about Social Skills groups, we talk about all those things, but we don't take it a step further. It's still the onus is still on the kid with a disability to go out and oh, we're going to generalize that across the classroom? Well, no, we're not, because there's the perception, the bias, the stigma that everyone else has.

By the time I got into high school, my teacher of the deaf, my amazing teacher of the deaf, decided it was time to bring in an instructor for one of my classes. And instead of having that teacher, I think was an English teacher, do her English teacher curriculum for the day, my teacher of the deaf actually gave my classmates a taste of what my life was like as a student who was hard of hearing, so she played examples like to not be able to access sound and have people write down the words that they could or could not hear. It was showing an audiogram, not necessarily mine, but an audiogram, and helping them understand why that was doing. Disability sensitivity and cultural competency is so incredibly important for our kids today. How many of you know the statistics on how many people with disabilities live in the United States? Anyone want to take a guess?

The [Centers for Disease Control] CDC now says 1 in 4 people have a disability. Look around this room. Obviously, the four of us here qualify as people with disabilities, but for every room you step into outside of this one, think about that one in every four. Now it's not going to be as obvious, or people may not even consider themselves part of the disability community, but you've got people with diabetes, you've got people who might have RA or a chronic illness, and disabilities can even be temporary, like going through chemo and just having a low immune system. There are so many disabilities out there that are invisible. We don't know everyone with the disability that we are encountering, and that is why so many times I try and I strive to repeat what's being said on these slides. I don't know if the people sitting in my audience, when I'm presenting, have a visual processing disorder. So I must.

I was introduced to this amazing program called the Youth Leadership Forum (YLF). How many people know that? For those of you who don't, the Youth Leadership Forum is for students in high school, disabled students in high school. There's usually some disability organization within the state that sets it up, I think we're at almost all 50 states with youth leadership forums currently. It started in California, which is where I now live, but not where I grew up. I grew up in Iowa, so the first YLF for my state was in 1999 when I was about to graduate high school. I got in, and it was thrilled because it just gave me a chance to meet other kids with disabilities, other kids with IEPs. Living in my state and just finding my community made all the difference for me. It kind of gave me that confidence boost. It gave me that, the confidence that, yeah, there's nothing wrong with you know, I have no barriers to my social life. It's everybody else's perceptions of who I was that were wrong. And so, to find that community in that space was wholly validating. And so many people who went through the YLF, no matter what state they were in, have gone on to become leaders within the disability community, such as Rebecca Coakley. Rebecca was one of the first kids with disabilities to go through YLF in California.

Does anyone know the name Stephanie Enyart? Stephanie Enyart had the landmark case on testing accommodations[i], especially for a bar exam. There are a lot of us who run with that, and it all started in the Youth Leadership Forum. So, if you're working with high school students, please be on the lookout for your state's Youth Leadership Forum.

I had a lot of other ugly moments later, but we're getting short on time, so I'm going to keep wrapping this up, because we have four decades of the IDEA. We have three decades of the ADA we now have the “ADA Generation,” a term coined by Rebecca Coakley. We have the YLFs. We had Nels with the National Association of Law students with disabilities, which is now the National Disabled Law Student Association. We have the Disability Rights Bar Association. We have multiple disabled attorney bar associations, like the Deaf and Hard of Hearing Bar Association, which I belong to, and we have the COPAA Disabled Members Committee. We meet at the annual COPAA Conference, and if you want to join the committee as a member of COPAA, visit this webpage and sign up. 

I tell parents, you're all writing down notes and you're all taking pictures of the slides, but if you take one thing away is to involve your child in this process, because someday, when they go on to post-secondary [ and work],, they're going to have to do this. They're going to need to be able to articulate their needs and ask for services, and they shouldn't be ashamed to do it; they should be equipped to do it. And that's one of the reasons I mentioned coaching to you briefly, but if I had to sum that up in one word, it would be empowerment.

BIOGRAPHIES

Michael Gilberg

Michael Gilberg has years of both Special Education and Disability Rights Law and Advocacy Experience. Attorney Gilberg also has his own personal experience. As someone on the Autism Spectrum. Attorney Gilberg received his J.D. from Pace University School of Law in 2007 after receiving both his B.A. and M.P.A., also from Pace University. Attorney Gilberg holds numerous Professional Affiliations and Leadership Roles including serving on Board of Directors of COPAA as well as co-chair of the membership and newly formed Disabled Members committee. He also is involved with the Disability Rights Bar Association, the Autistic Self Advocacy Network, helped found the National Association of Attorneys with Disabilities, serves on the New York State Bar Association on Committee on People with Disabilities, serves on the Editorial Board of the Autism Spectrum News, and serves on the Westchester County Advisory Committee on People with Disabilities and New York State Autism Spectrum Advisory Board among other organizations. He has lectured extensively before numerous organizations, parent groups, and has had numerous media experiences both about living on the Autism Spectrum as well as being a special education attorney who went through the system. He has also been active in the area of attorneys with disabilities and has organized CLEs on this topic. Michael is driven by his desire every day to fight for justice for children with disabilities and their families, because of his life experience. He fights for children because he has lived it and wants to ensure others can walk an easier road.

Robert M. Tudisco

Robert M. Tudisco is a practicing attorney at the law firm of Barger & Gaines.  He represents families of students with special needs in getting services and support at school.  Additionally, Robert specializes in representing students in disciplinary matters at school and also when they are arrested and prosecuted, in many cases for the same conduct that they are being disciplined for at school.  For this area of practice, Robert relies on his background as a former prosecutor and over 20 years as a criminal defense and education attorney.  However, the most important tool he utilizes in effectively representing his clients is his understanding of his clients, based upon his own diagnosed ADHD.  Below is a discussion of how Robert’s disability significantly aids his representation of his clients. Understanding my own disability was extremely helpful to me understanding and identifying with my clients even more than their parents.  I was able to see and understand that enormous frustration that these children were experiencing because they felt they were not understood.  At first, this came from my understanding of ADHD based on my own experience, but soon evolved into understanding students with a number of disabilities.  This also helped me open an effective dialogue with students who should really drive the special education process.  All too often, attorneys speak with parents and evaluators and have limited contact with the students who are struggling.  My feeling was that I would get much more valuable information about why these students were struggling from them. More importantly though, since most disabilities impact their sense of self-esteem, involving students and having them drive this process was tremendously empowering for them.

Another aspect of understanding the nature of many disabilities from the inside out, was that I was in a much better position to explain to parents and educators why they were seeing their students struggle and/or act out.  I believe that the true definition of being an effective advocate is to provide a voice for someone who is unable to raise one on their own.  Understanding my clients’ struggles and being able to effectively articulate them is extremely helpful in getting them what they need.  

Ptahra Jeppe

Ptahra Jeppe is a dedicated Special Education Attorney in New York City. She received her J.D. magna cum laude with a curricular focus in Disability Law & Policy and an M.S. Ed. in Disability Studies from Syracuse University College of Law. Ptahra also received her B.A. magna cum laude with departmental honors from Adelphi University.

Ptahra has guest lectured at numerous colleges, universities, organizations, companies, and parent groups. She currently serves as a board member of Everyone Reading, a board member of the New York State Reading League Chapter, an advisory board member of Dyslexia Alliance for Black Children, a member of the Council of Parent Attorneys and Advocates as well as the co-chair of the Disability Members Committee, co-chair of Syracuse University College of Law Disability Law & Policy Alumni Committee, and member of the Churchill School Alumni Board.

It was Ptahra’s journey that inspired her to become a special education attorney so that she could continue advocating for children with disabilities and their families. She believes that her experience motivates her and helps her express empathy, respect, and understanding towards clients. As a Special Education Attorney, Ptahra is committed to advocating for meaningful access and opportunities for all!

Karma M. Quick-Panwala

Karma M. Quick-Panwala is the Director of Advocacy at CASE (the Community Alliance for Special Education) in San Francisco. She has been a disability rights advocate since her high school days. A proud member of the “ADA Generation,” Karma had an IEP from kindergarten through graduating high school, and has used effective communication accommodations in college, law school, and in the workplace.

Having been a delegate in Iowa’s first Youth Leadership Forum, reigned as Miss Deaf Iowa 2001-2003, a member of the first executive board of the National Association of Law Students with Disabilities (now the National Disabled Law Students Association), plus advocated at the United Nations and served on the disability policy committee of a presidential campaign, Karma brings disability policy experience to her long-time special education advocacy work. She fully believes that there is #NothingAboutUsWithoutUs and is especially passionate about transition for students with IEPs and their ability to successfully live in the community as they choose with the supports and services they need to do so. Karma proudly identifies as disabled.

Karma is a member of COPAA and the Deaf and Hard of Hearing Bar Association. She obtained an A.A. from Cottey College (with honors), a B.A. from Central College (magna cum laude), and a J.D. from New College of California School of Law. She is not a licensed attorney.

 © COPAA (2024) 26th Annual COPAA Conference White Paper and Session Transcript, Atlanta, Georgia. 

Resources

The Coelho Center for Disability Law, Policy, and Innovation at Loyola Law School - https://www.lls.edu/coelhocenter/

The American Bar Association Commission on Disability Rights - https://www.americanbar.org/groups/diversity/disabilityrights/

BACKGROUND

In honor of Disability Pride Month, and to honor all of the many unique talents and skills people with disabilities bring to our workforce and communities, we are repurposing this 2024 Conference White Paper.

In COPAA we focus our work on students with disabilities and their educational needs including helping families to navigate the special education system and understand IDEA to get an appropriate education. What we do not talk about as frequently is the “view from the inside” of how the student might be viewing himself/herself as someone with a disability. Four COPAA members who have Autism Spectrum Disorder, ADHD, Dyslexia, and are Severely hard-of-hearing discuss their own experiences and how the disabilities affected their lives and how they feel it affects students in Special Education, and how it has changed since they were students. 

Many people become special education attorneys and advocates due to a family member with a disability. The presenters are in this field due to their own experiences growing up and living with disabilities that are common among special education students. They share their experiences dealing with these “hidden” disabilities and people who told them that they are not really disabled because it is not visually obvious or understood.  and how it affected their receiving special education services in school and entering the profession.

They will also discuss the challenges that students with disabilities face in entering the legal profession including the challenges of becoming an attorney specific to each of their own disabilities. They will also discuss any accommodations they have required or self-accommodations they have made for themselves. They will also discuss the obstacles they faced personally part of their personal stories and journeys that brought them to this point of being in this field representing students who have the same or similar disabilities as them.

Attorneys with Disabilities (AWDs) face considerable challenges in the legal profession, from being denied accommodations and modifications on gateway examinations such as the LSAT and bar exam or during law school, to difficulty obtaining employment because of stereotypes or negative assumptions about the capability of AWDs. Disability, unlike other historically underrepresented class of people, is not typically included as a category to which diversity initiatives and recruitment efforts are directed, thereby contributing to the under-reporting of AWDs. At the current time there is not reliable data on the percentage of AWDs who are employed in general or specifically working as attorneys vs. another career. 

Historically most disability accommodations have been geared towards those disabilities that are both visible and more easily understood by laymen. These include blindness and visual impairments, deafness and hearing impairment, mobility impairments, and missing limbs. There has been a greater struggle for those who have “hidden disabilities including Autism Spectrum Disorder (ASD), ADHD, Dyslexia, Deaf and Hard of Hearing, Mental Health Conditions and a myriad of other disabilities that are not visible and not as easy to understand or measure in a quantifiable way.”

Another challenge in measuring the number of AWDs has been that many with “hidden disabilities” decide to “stay in the closet” and either deny their disability or hide it because they are afraid of the social stigma surrounding disability. The COPAA Disabled Members Committee, which Michael, Ptahra and Karma co-chair) are working to change social stigma and to teach others, including children with disabilities, to not run away from their disabilities or the label attached. As we know it is much easier to convince a child with a disability to engage in special education services when they are more willing to accept their disability and see successful adults who went through similar challenges and who can show them not to let the disability define you.

Another challenge for AWDs is that despite many efforts to start a national bar association of AWDs none has been able to maintain viability, with the exception of the Deaf and Hard of Hearing Bar Association (a small percentage of AWDs today). While national bar associations for other affinity groups (based upon race, ethnicity, gender, and sexual orientation among others) have existed for decades the same is not true for AWDs. This has created lack of a network for AWDs who need mentors and a community of those with similar experiences in addition to the challenges they already face as a person with a disability in working as an attorney. In a perfect world attorneys would face no differences in practice based upon other factors mentioned. It is important to recognize, however, attorneys with disabilities and other professionals will always need some kind of accommodations. 

It is imperative to remember that children with disabilities become adults with disabilities, and some services and supports are going to be needed throughout a lifetime. As Special Education Attorneys and Advocates, we in COPAA focus our attention on ensuring every child with a disability is properly identified for special education services and that he/she receives a free and appropriate public education. What we do not consider, in some cases, is the child’s perspective as compared with the parents or professionals perspectives. Unfortunately, most children and even many parents do not understand special education law or how to navigate the system. 

There is no greater experience than lived experience. We have lived the experience of growing up with disabilities and taken that experience to our professional lives representing children with disabilities. As such we have a unique understanding of the children’s perspectives because they have gone through similar if not the same experiences. It gives us a unique empathy for the clients we represent. 

BIOGRAPHIES

Michael Gilberg

Michael Gilberg has years of both Special Education and Disability Rights Law and Advocacy Experience. Attorney Gilberg also has his own personal experience. As someone on the Autism Spectrum. Attorney Gilberg received his J.D. from Pace University School of Law in 2007 after receiving both his B.A. and M.P.A., also from Pace University. Attorney Gilberg holds numerous Professional Affiliations and Leadership Roles including serving on Board of Directors of COPAA as well as co-chair of the membership and newly formed Disabled Members committee. He also is involved with the Disability Rights Bar Association, the Autistic Self Advocacy Network, helped found the National Association of Attorneys with Disabilities, serves on the New York State Bar Association on Committee on People with Disabilities, serves on the Editorial Board of the Autism Spectrum News, and serves on the Westchester County Advisory Committee on People with Disabilities and New York State Autism Spectrum Advisory Board among other organizations.

He has lectured extensively before numerous organizations, parent groups, and has had numerous media experiences both about living on the Autism Spectrum as well as being a special education attorney who went through the system. He has also been active in the area of attorneys with disabilities and has organized CLEs on this topic.

Michael did not have an easy road to becoming a special education attorney and had to consistently defy the low expectations set for him, not because of his ability but because of a lack of understanding of his social differences. As he grew older Michael learned to adapt to the world around him and after a childhood of wrong diagnoses, he was finally correctly diagnosed at the age of 18 with Asperger’s Syndrome placing him at the high end of the Autism Spectrum. During Michael’s childhood there was a lack of understanding of Autism and children like Michael with above average intelligence and no communication delays were often overlooked and given other diagnoses. Like many of these children Michael did not receive an appropriate education that today would pass muster as providing FAPE.

In particular people ask Michael why he chose to become a special education attorney. Many parents of children with disabilities who are already attorneys become special education attorneys through the process of advocating for their children. Michael’s journey to becoming a special education attorney is much more personal. He came to the field to fight for children with disabilities so that no child would have to go through what he did growing up.

As said Michael did not get an appropriate education with the proper social/emotional support. Unlike many children who gave up on their lives, Michael worked harder and pushed ahead and got here through determination and hard work. Michael was placed in Special Education for his entire schooling prior to college while being misidentified. 

On seminal event stands out on Michael’s journey when he was in the 6th grade. The school social worker at the time told his parents that I was never going to graduate High School and they should “throw me away” and forget about me since I had no future. Meanwhile he had one friend at that time, who the same social worker said was well adjusted and ready to return to mainstream public school.

Unfortunately, the social worker had betrayed the friend’s trust by repeating something told to him in a private counseling session to the whole class in a group session, despite his request that it be kept private. He shared his feelings of betrayal by the social worker with Michael and never trusted adults after that with his private feelings. The friend did go back to mainstream public school, and because he now internalizing even more, he never shared with anyone the demons inside of him. The day before his 16th birthday (4 days after Michael’s 16^th birthday) he committed suicide, leaving his mother to find his body. Because of the social worker he never told anyone about what was haunting him. 

This was a turning point in Michael’s life and over 25 years later this event still has had a great impact on who he has become. Michael has stated “The system failed me but failed him worse.” The sad post-script is that unfortunately, when Michael Googled the social worker to tell him how he was wrong about both of them, but had failed the friend even worse, he found his obituary. He passed away in 2011 from cancer. 

As an adult he proved the social worker wrong by not only graduating high school but college, graduate school, and law school and then becoming an attorney. Michael knew he had something to give back so no other child would go through what both he or his friend had. He knew he had to help children with similar challenges to know they have a future, and these children ould know there were people they could go to and that they did not need to feel hopeless.

Michael is driven by his desire every day to fight for justice for children with disabilities and their families, because of his life experience. He fights for children because he has lived it and wants to ensure others can walk an easier road.

Robert M. Tudisco

Robert M. Tudisco is a practicing attorney at the law firm of Barger & Gaines.  He represents families of students with special needs in getting services and support at school.  Additionally, Robert specializes in representing students in disciplinary matters at school and also when they are arrested and prosecuted, in many cases for the same conduct that they are being disciplined for at school.  For this area of practice, Robert relies on his background as a former prosecutor and over 20 years as a criminal defense and education attorney.  However, the most important tool he utilizes in effectively representing his clients is his understanding of his clients, based upon his own diagnosed ADHD.  Below is a discussion of how Robert’s disability significantly aids his representation of his clients. 

ACCORDING TO ROBERT

My diagnosis of ADHD in 1999 was a major turning point in my life and my legal practice.  Up to that point, I had been practicing criminal law for many years as both a prosecutor and defense attorney.  It was, however, my own diagnosis and understanding of why I struggled so much as a child, that gave me particular insight into the frustration of my clients.  It also helped me to understand why certain behaviors take place with a view towards preventing them in the future.  My understanding of the frustrations I had as a child in regulating my own behavior, was invaluable in providing a more comprehensive level of representation to them. 

As a criminal defense attorney, I always felt frustration in representing adolescents because I was consistently retained when the situation evolved into antisocial and/or criminal behavior.  Based upon my understanding of my own behavioral patterns as a child and those of others with various disabilities, I decided to expand my practice into the area of education law.  It was my belief that working with parents and school districts to develop behavioral supports and interventions, at a young age would limit the emergency calls I was traditionally getting about older students. 

Understanding my own disability was extremely helpful to me understanding and identifying with my clients even more than their parents.  I was able to see and understand that enormous frustration that these children were experiencing because they felt they were not understood.  At first, this came from my understanding of ADHD based on my own experience, but soon evolved into understanding students with a number of disabilities.  This also helped me open an effective dialogue with students who should really drive the special education process.  All too often, attorneys speak with parents and evaluators and have limited contact with the students who are struggling.  My feeling was that I would get much more valuable information about why these students were struggling from them. More importantly though, since most disabilities impact their sense of self-esteem, involving students and having them drive this process was tremendously empowering for them.

Another aspect of understanding the nature of many disabilities from the inside out, was that I was in a much better position to explain to parents and educators why they were seeing their students struggle and/or act out.  I believe that the true definition of being an effective advocate is to provide a voice for someone who is unable to raise one on their own.  Understanding my clients’ struggles and being able to effectively articulate them is extremely helpful in getting them what they need. 

More specifically, my understanding of the nature of many disabilities that impact behavior was extremely important in effectively representing students who were intelligent, but behaviorally challenged.  This was extremely helpful in getting services, support and behavioral interventions, but also in representing students being disciplined at school and/or prosecuted for their behavior.  I utilize this knowledge and understanding in Manifestation Determination Reviews and also to mitigate sentencing in criminal cases. 

More recently, this understanding of the behavioral manifestations of many mental health disorders, has given me the ability to educate other attorneys and judges in both criminal and family courts.  The CLE’s I conduct on school discipline and criminal prosecution provide a bridge between these disciplines and hopefully gives attorneys the ability to provide a more comprehensive level of representation to their clients, both in school and in a criminal setting.  This has also expanded in developing models to merge substance abuse assessment and treatment with mental health treatment and assessment in the court system, to more effectively address the needs of this population. 

All of this stems from my understanding my own disability from the inside out.

Ptahra Jeppe

Ptahra Jeppe is a dedicated Special Education Attorney in New York City. She received her J.D. magna cum laude with a curricular focus in Disability Law & Policy and an M.S. Ed. in Disability Studies from Syracuse University College of Law. Ptahra also received her B.A. magna cum laude with departmental honors from Adelphi University.

Ptahra has guest lectured at numerous colleges, universities, organizations, companies, and parent groups. She currently serves as a board member of Everyone Reading, a board member of the New York State Reading League Chapter, an advisory board member of Dyslexia Alliance for Black Children, a member of the Council of Parent Attorneys and Advocates as well as the co-chair of the Disability Members Committee, co-chair of Syracuse University College of Law Disability Law & Policy Alumni Committee, and member of the Churchill School Alumni Board.

It was Ptahra’s journey that inspired her to become a special education attorney so that she could continue advocating for children with disabilities and their families. In the third grade, Ptahra was diagnosed with severe dyslexia. She had an IEP and received accommodations in college, law school, and the workplace. However, during Ptahra’s childhood, there was a lack of understanding of dyslexia, and she experienced almost every educational environment that the New York City Department of Education had to offer. She was a special education student who experienced General Education, General Education with Resource Room, Collaborative Teaching environments, 12:1 classes, 12:1:1 classes, Occupational Therapy, Reading Specialists, and more. It became clear that the New York City Department of Education could not provide the Free Appropriate Public Education she was entitled to. So, Ptahra’s parents became her zealous advocates and retained a legal advocate, and in the seventh grade, Ptahra was enrolled in a school for children with language-based learning disabilities. She entered the seventh grade, barely reading on a second-grade reading level. At this school, Ptahra worked with teachers trained to work with students with disabilities, worked with learning specialists twice a week, and used assistive technology that would allow her to perform at her intellectual level rather than her decoding level.

Ptahra credits having dyslexia for making her a tenacious and resilient person. Additionally, she believes that she learned how to advocate for herself and others by watching her parents do so and because she was given the opportunity to participate in her education process. When she was old enough, she participated in her IEP meetings. She was educated about her disability and what she needed to succeed. The skill of being able to self-advocate is one that Ptahra believes all students with disabilities should learn, as it is crucial to developing their self-identity and ability to self-advocate.

Ptahra declares that growing up with severe dyslexia and becoming an attorney was not easy. She did not know anyone with dyslexia who looked like her, which made her feel like she was always reinventing the wheel. Now, in her practice, Ptahra often discloses her own experiences navigating education systems to parents and students she is serving to empower them so that they don’t have the same feelings of loneliness. She also makes a concerted effort to share with colleagues and other aspiring advocates so that they will have an easier road navigating the workplace as an individual with a disability.

She believes that her experience motivates her and helps her express empathy, respect, and understanding towards clients. As a Special Education Attorney, Ptahra is committed to advocating for meaningful access and opportunities for all!

Karma M. Quick-Panwala

Karma M. Quick-Panwala is the Director of Advocacy at CASE (the Community Alliance for Special Education) in San Francisco. She has been a disability rights advocate since her high school days. A proud member of the “ADA Generation,” Karma had an IEP from kindergarten through graduating high school, and has used effective communication accommodations in college, law school, and in the workplace.

Having been a delegate in Iowa’s first Youth Leadership Forum, reigned as Miss Deaf Iowa 2001-2003, a member of the first executive board of the National Association of Law Students with Disabilities (now the National Disabled Law Students Association), plus advocated at the United Nations and served on the disability policy committee of a presidential campaign, Karma brings disability policy experience to her long-time special education advocacy work. She fully believes that there is #NothingAboutUsWithoutUs and is especially passionate about transition for students with IEPs and their ability to successfully live in the community as they choose with the supports and services they need to do so. Karma proudly identifies as disabled.

Karma is a member of COPAA and the Deaf and Hard of Hearing Bar Association. She obtained an A.A. from Cottey College (with honors), a B.A. from Central College (magna cum laude), and a J.D. from New College of California School of Law. She is not a licensed attorney.

Resources

The Coelho Center for Disability Law, Policy, and Innovation at Loyola Law School - https://www.lls.edu/coelhocenter/

The American Bar Association Commission on Disability Rights - https://www.americanbar.org/groups/diversity/disabilityrights/

by: Laura Kaloi, Stride Policy Solutions, COPAA Federal Policy Advisor

INTRODUCTION

Assistive technology (AT) helps people who have difficulty speaking, typing, writing, remembering, pointing, seeing, hearing, learning, walking, and many other things. Different disabilities require different assistive technologies.

The Individuals with Disabilities Education Act (IDEA) ensures that all children with disabilities are provided a free appropriate education that includes access to the general curriculum in the least restrictive environment that leads to full participation, independent living, and economic self-sufficiency. This means that beyond ensuring equitable access to technology and educational materials, children with an individualized family service plan (IFSP) or an individualized education program (IEP) may also need AT devices and services for meaningful access and engagement in education. In fact, when developing an IEP, teams are required to consider whether the child needs AT devices and services. Assistive technology devices and services can be used for infants, toddlers, children, and youth with disabilities as required in both IDEA Parts B and C. The use of AT devices and services is critically important for many children with disabilities as it can greatly improve their educational experience, improve their educational and post-school outcomes, and help develop important skills and abilities. These devices and services must be available, accessible, and appropriate for children with disabilities and their families.

Research indicates that AT is an under-utilized intervention to provide students with disabilities a means for accessing and engaging in the curriculum. The barriers to AT cited in research and in practice are many, including:

• Access to AT resources

• Technology changes and knowledge of new applications

• Staff knowledge and time

• High cost of some AT, both in purchasing, ongoing maintenance, and upgrades of equipment

• Shortage of qualified assistive technology specialist

• Lack of quantitative research on the frequency, purpose, and satisfaction with AT use.

Yet, in a recent survey, special education teachers ranked having adequate resources to meet IEP requirements of students, including assistive technology, as most important to their success. As the number of students being served under the IDEA steadily increases, it is critical to learn the extent to which students with disabilities are being provided access to AT as part of their special education services and supports. It has been more than a decade since any comprehensive study looked at the use of AT in schools.

FEDERAL ACTION

Through the advocacy of assistive technology experts and allied partners, Congressional appropriators agreed to include language in the Labor, Health and Human Services, Education and Related Agencies Fiscal Year 2022 appropriations bill directing the U.S. Department of Education regarding AT. The report language included in the final law said:

Assistive Technology Usage.—The Committee notes that assistive technology (AT) is an essential tool for students with disabilities. As mandated under IDEA, assistive technology must be made available to all children with a disability needing AT as determined by the team developing the student’s Individualized Education Program (IEP). However, too little is known regarding access to and use of assistive technology for students who require it. The Committee is concerned that children with disabilities who could benefit from the use of AT are not accessing these resources. The Committee encourages OSERS to study State and district practices in making AT available to students; the percentage of students with IEPs by disability category accessing AT; the availability of training for school personnel and parents to support a child’s use of AT; budgeting practices regarding the annual acquisition of AT for eligible children; and, any other factors impacting the policies and practices of providing AT so that all children with disabilities have equitable access to grade-level curriculum, assessments and the learning environment commensurate with their peers. In addition, the Committee encourages OSERS to issue guidance to States that: clarifies the requirements of the IDEA regarding providing AT to children with disabilities; assures States have updated plans to provide technical assistance to district leaders in the financing and acquisition of AT; provides training to IEP teams in determining whether a child qualifies for AT; and trains all school personnel involved, including the child’s parents, on the use of the AT to ensure children with disabilities have equitable access to grade-level curriculum, assessment, and the learning environment commensurate with their peers.  

Related to this and as part of the overarching advocacy efforts of stakeholders invested in assuring students with disabilities had access to AT during and in the direct aftermath of the COVID-19 pandemic, in September 2021, the Office of Special Education (OSEP) issued the Return to School Roadmap which incorporated all requirements of the IFSP/IEP team, including that the IEP team must consider the AT needs of IDEA-eligible students…[and] provide training to students, teachers and parents. Additionally, as states were provided guidance on use of federal K-12 education stimulus funds, the Office of Educational Technology (OET) issued guidance noting that funds may be used to purchase technology, AT or adaptive equipment that “aids in regular and substantive educational interaction between students and their classroom instructors [and] to help close achievement gaps.

In direct response to Congress’ request [in FY 2022 appropriations] for ED to issue AT-focused guidance, on January 2024, OET and OSEP issued a Dear Colleague Letter and guidance to states, districts, and other stakeholders in support of children with disabilities who need devices and services for meaningful access and engagement in education. Upon release ED noted, “It is critical that IFSP and IEP Team members understand how to procure, implement, and evaluate AT devices and services for children with disabilities.” ED also indicated the guidance is designed to increase understanding of the IDEA’s assistive technology requirements, dispel common misconceptions regarding AT, and provide examples of the use of AT devices and services for children with disabilities and to highlight the different requirements under Part C and Part B of IDEA. Within the guidance they state, [“the] document is intended for a wide range of individuals including parents, early intervention service providers, special educators, general educators, related services personnel, school and district administrators, technology specialists and directors, and employees at State lead agencies and educational agencies.

The guidance targets a wide range of stakeholders:

• Parents/families

• Early intervention service providers

• Special educators

• General educators

• Related services personnel or Specialized Instructional Support Personnel

• School and district administrators

• Technology specialists and directors 

• Employees at State lead agencies, educational agencies, and
  Vocational Rehabilitation (VR) agencies. 

And, through a Myths and Facts format, the guidance seeks to:

• Increase understanding of the IDEA’s assistive technology (AT) requirements

• Dispel common misconceptions regarding AT, including who is responsible to pay for devices and services

• Provide examples of the use of AT devices and services for children with disabilities

• Describe how state AT Act Programs can support states and districts in support device demonstration, reuse and acquisition of AT

• Highlight the different requirements under Part C and Part B of IDEA

• Provide tools and resources for all stakeholders.

CONCLUSION

Access to interoperable AT and adaptive technology is critical to the success of students with disabilities across all learning environments, from infants to young adults. While more can and still needs to be done to ensure students with disabilities access the AT devices and services they require; the AT Guidance can serve as a powerful resource as parents and advocates seek through the IFSP and IEP process to ensure students with disabilities can access the critical supports they need.

_________

[1] What is AT., Assistive Technology Industry Association at: https://www.atia.org/home/at-resources/what-is-at/

[2] Dear Colleague Letter, Provision of Assistive Technology for Students with Disabilities, U.S. Department of Education, 2024, at: https://sites.ed.gov/idea/files/DCL-on-Myths-and-Facts-Surrounding-Assistive-Technology-Devices-01-22-2024.pdf

[3] Assistive technology interventions for adolescents and adults with learning disabilities: An evidence-based systematic review and meta-analysis, Computers & Education 114 (2017), 139e163 at: https://pubmed.ncbi.nlm.nih.gov/29276334/

Access to assistive technology for people with intellectual disabilities: a systematic review to identify barriers and facilitators, Journal of Intellectual Disability Research, Vol. 62, pp 900–921 October 2018, at: https://pubmed.ncbi.nlm.nih.gov/29992653/
Minnesota Dept. of Education, Special Education Assistive Technology, Report to the Legislature, January 22, 2018, at: https://files.eric.ed.gov/fulltext/ED599026.pdf

[4] Council for Exceptional Children, The State of the Special Education Profession Survey Report, at: https://exceptionalchildren.org/improving-your-practice/state-profession

[5] Federal data shows the number of IDEA-eligible children in 2021 increased significantly from 2020. Students ages 3-21 increased by 1.9%; school age students (ages 5-21) increased by 2.5% following a slight decline in 2020. IDEA 618 Child Count, U.S. Department of Education, 2023, at: https://data.ed.gov/dataset/idea-section-618-data-products-state-level-data-files

[6] Journal of Special Education Technology, Who Is Using Assistive Technology in Schools? Quinn, 2009 at: https://journals.sagepub.com/doi/10.1177/016264340902400101?icid=int.sj-abstract.citing-articles.52

[7] Consolidated Appropriations Act, 2022 (FY2022 omnibus; H.R. 2471; P.L. 117-103), see pg. 284, at: https://docs.house.gov/meetings/AP/AP00/20210715/113908/HMKP-117-AP00-20210715-SD003.pdf

[8] Return to School Roadmap, U.S. Department of Education, (see specifically C1 & C2), 2021, at: https://sites.ed.gov/idea/idea-files/return-to-school-roadmap-development-and-implementationof-ieps/#citem_78e4-161f

[9] Dear Colleague Letter, Use of K-12 Stimulus Funds, 2023, at: https://tech.ed.gov/files/2023/01/2023.01_Dear_Colleague_Federal_Funding_Technology.pdf

[10] Dear Colleague Letter, Provision of Assistive Technology for Students with Disabilities, U.S. Department of Education, 2024, at: https://sites.ed.gov/idea/files/DCL-on-Myths-and-Facts-Surrounding-Assistive-Technology-Devices-01-22-2024.pdf

[11] See 34 C.F.R. §§ 300.30 and 303.27

[12] Myths and Facts Surrounding AT Devices and Services, U.S. Department of Education, 2024, at: https://sites.ed.gov/idea/files/Myths-and-Facts-Surrounding-Assistive-Technology-Devices-01-22-2024.pdf

13] See P.L. 117-263, Division E, 21^st Century Assistive Technology Act, at: https://www.congress.gov/117/plaws/publ263/PLAW-117publ263.htm

In March 2021, COPAA members presented a white paper titled: Bringing Legislation on Cameras In Classrooms Into Focus which outlines applicable federal laws and policies; discusses related case law; examines key considerations such as technical/quality issues, student privacy, safety, and financial factors; discusses potential strategies for parents, guardians and advocates/advocate attorneys and shares resources. The paper carefully describes the intersection of these issues including that while some advocates urge for cameras in special education classrooms for student safety because “teachers and school staff members who know their classroom is monitored by a camera may be less likely to engage in behaviors that would be viewed as harmful towards students”[2] the impact to include cameras in special education classrooms also raise concerns that doing so may interfere with the Individuals with Disabilities Education Act (IDEA) requirement to educate students in the least restrictive environment (LRE)[3] “…parents and school staff may come to view special education classrooms that are monitored by cameras as safer and more desirable [than general education classrooms] because of the presence of cameras in the classroom. At least one national organization has advocated that “relying on more restrictive settings as a way to keep students with disabilities safe contradicts research on inclusion…and, asserts that the use of cameras in special education classrooms undermines the mandate that special education is a service, not a place.[4] Given that there is silence in federal law and in most states about the use of cameras in classrooms, COPAA experts urge, “…parents, guardians, advocates, and attorneys should review the existing literature and research to determine whether they believe that the addition of cameras in special education classrooms is something that would be beneficial.”

COPAA believes resources are best invested in the evidence-based practices that promote and support systemic interventions and staff training that transform schools in ways that:

• promote learning;
• allow students to form positive and trusting relationships with trained and knowledgeable adults that are supportive of their complex needs;
• and, encourage the use of evidence-based strategies to promote positive behavior.

Emphasis must be placed on physical, psychological, and emotional safety for both provider and student. Implementation of multi-tiered system of support that integrates social emotional learning, school crisis preparation, safety procedures, counseling and mental health support, positive behavior intervention and supports (PBIS), restorative practices and trauma informed care, restorative justice programs or other evidence-based trauma-informed services must become the norm.[5]

The dynamics surrounding whether to place more cameras in schools, and in particular in segregated special education classrooms, are complex due to the overlapping requirements of federal and state laws, combined with intersecting socio-political and civil rights concerns. Given the many variables and due to the varied response to a survey of its members that mirror the information provided in the white paper linked above, the Council of Parent Attorneys and Advocates (COPAA) has not taken a position for or against placing cameras in schools, or into special education classrooms, however, as part of a set of policy priorities regarding school climate and safety, in January 2021, COPAA recommends that any data collected from safety monitoring systems – that utilize security cameras or other types of surveillance – is not unlawfully disclosed or compromised in compliance with all applicable privacy laws. Furthermore, videotapes of alleged incidents, if available, must be made available to the family of any student that is subject to discipline for the activity in question.[6]

Let's not rely on compensatory education to remedy the damage done to our kids during the period of COVID-19 school closure.  “Comp Ed” are fighting words.  By talking that language, we are creating a confrontational posture with school districts and we are misleading our clients.  Compensatory education is not the right analytic framework for this situation.

School districts and courts generally regard compensatory education as a remedy for a denial of a free appropriate public education, either in the design of the educational program or in its implementation.  The term is freighted with notions of fault and wrongdoing.  Although the statutory basis for compensatory education does not support this connotation, it clearly exists.

Most attempts to argue or demonstrate that a school district was at fault for failing to provide certain services during the period of COVID-19 closure will almost certainly fail.  It is hard to imagine a hearing officer or a judge blaming a school district for not providing in-person services or for providing fewer hours of other services.  And, to the extent that negligence is the test, school districts will argue contributory negligence of the parents.  We certainly do not want the educational skills of parents to be subjected to school district scrutiny.  Only in extreme cases, such as where the district refuses to provide any education to students with a disability while providing distance learning to all other students, would a strong claim for compensatory education likely be successful.

This is really a matter of terminology.  When school reconvenes, the child's IEP Team will need to meet and determine present levels of performance as a prerequisite to designing a program and placement.  Parents, who have been carefully tracking performance during the period of distance learning, should have a significant voice in setting the current level of performance.  If the student's performance is below where it was on the day schools closed for the COVID-19 pandemic, the IEP Team will be obliged to provide more intense services than those provided in the prior IEP.

Not every student will need remedial services. Some students will progress appropriately in the at-home program.  Others will experience significant regression.  In each case, the IEP team must, after the closure ends, closely examine the student’s progress or regression, craft accurate present levels of performance, and provide services based on the needs established by the data.

Indeed, under Reid v. District of Columbia, 401 F.3d 516 (D.C. Cir. 2005), the standard for compensatory education is not an hour for hour calculation.  Rather, "In every case, however, the inquiry must be fact-specific and, to accomplish IDEA’s purposes, the ultimate award must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place."  401 F.3d at 524.  It is a qualitative standard based on individual assessments of the student.

The approach we should be advocating in this case is exactly the one outlined in Reid.  The district needs to accurately assess the student and then design a program to provide the educational benefit that likely would have accrued from the services the district would have provided but for the closure.

Andy Feinstein has represented children with disabilities and their families pursuing appropriate educational programs for the past twenty years, and is currently the owner of Feinstein Education Law Group, LLC in Connecticut. He serves as co-chair of the Government Relations Committee for the Council of Parent Attorneys and Advocates (COPAA).

Of late we have been hearing confusing discussion regarding the Least Restrictive Environment (LRE). The sentence often begins with “the student’s LRE is…..” Sometimes the rest of that sentence indicates a placement that is the general education classroom alongside peers who do not have disabilities. Often, however, the speaker states a placement somewhere else on the continuum and goes on to try to justify why a more restrictive placement, such as a specialized school or segregated classroom is the LRE “for that student” because of his or her unique needs. An individualized LRE, unique to each student, is a myth. The fact is under the law, there is only one LRE – the general education classroom with access to peers without disabilities. A team may determine that a more restrictive placement is needed for a child because of their unique situation. Under the law removal of children with disabilities from the Least Restrictive Environment (the general education classroom) should occur 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."  [§300.114(a]. 

There has been longstanding development about the doctrine of LRE, developed by Congress ₍₁₎ the Department of Education ⁽²⁾ , and the courts. In fact, courts have, per the statutory mandate found at 5 U.S.C. Section 706(2)(A-B), held as “unlawful and set aside agency action, findings, and conclusions found to be … arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Any attempt to revise the LRE therefore, may run afoul of the law.

IDEA Requires that School Districts Provide Both a Free Appropriate Public Education and in the Least Restrictive Environment

The most basic premises of the IDEA require that states receiving federal funds provide to all children with disabilities with not only a “Free Appropriate Public Education,” (FAPE), but also that said program be provided in the “Least Restrictive Environment” 20 U.S.C. § 1412(a)(1) and (5). The statute explains further that, “[t]o the maximum extent appropriate, children with disabilities... are educated with children who are not disabled, and special classes, separate schooling, or other removal of children with disabilities from the regular education environment occurs only when the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.” 20 U.S.C. § 1412(a)(5).  

In adopting the IDEA ⁽³⁾, Congress created a strong presumption for educating students with disabilities in general education classrooms. Basic to the IDEA and its precursor, the Education for All Handicapped Children Act, is the student’s Fourteenth Amendment right to avoid segregation and seclusion of students with disabilities. These protections emerged as statutory and regulatory obligations:

[T]he Act also contains a specific directive regarding the placement of handicapped children. The Act requires the state to establish procedures to assure that, to the maximum extent appropriate, handicapped children…are educated with children who are not handicapped. With this directive, which is often referred to as “mainstreaming” or placement in the “least restrictive environment,” Congress created a statutory preference for educating handicapped children with nonhandicapped children." (Footnote omitted citing to Rowley supra at 181 n.4) Greer v. Rome City School District, 950 F.2d 688, 695 (11th Cir. 1991). This right to be educated in the LRE with one’s nondisabled peers exists independent of, but equally important to the right to a FAPE. Id. at 695-696. 

The federal regulations go further and highlight the thrust of the LRE mandate, clarifying that that unless the Individualized Education Program (IEP) of a child with a disability requires some other arrangement, the child is educated in the school that he or she would attend if nondisabled.” 34 C.F.R. §300.116(c). School districts may not unnecessarily segregate a child from his non-disabled peers if that child’s IEP can be implemented using supplementary aids and services in a regular education classroom in the student’s neighborhood school. Daniel R.R. v. State Bd. of Ed., 874 F.2d 1036, 1048 (5th Cir. 1989). ⁽⁴⁾ 

Additionally, the Supreme Court has recently made clear that the Individualized Education Programs (IEP) of each child with a disability must be “appropriately ambitious” to enable them to make progress in the general education curriculum in light of their unique abilities. Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 137 S. Ct. 988, 1000 (2017). The Court explained that children with disabilities are to be challenged to reach their potential progress just as their non-disabled peers are challenged. For the vast majority of students with disabilities, this progress happens most effectively when children with disabilities are given access to the general education curriculum and included in the general education classrooms with their peers without disabilities. School districts are required to comply both with Endrew F.’s requirement that IEPs be “appropriately ambitious” and the statutory requirement that students receive their educational services in the children’s LRE. 

In its 2004 amending of the IDEA, Congress, in its findings, emphasized the importance of educating children with disabilities in the regular classroom:

Almost 30 years of research and experience has demonstrated that the education of children with disabilities can be made more effective by- (A) Having high expectations for such children and ensuring their access to the general education curriculum in the regular classroom, to the maximum extent possible … (B) Coordinating this title with other local, educational service agency State, Federal school improvement efforts, including improvement efforts under the Elementary and Secondary Education Act of 1965, in order to ensure that such children benefit from such efforts and that special education can become a service for such children rather than a place where such children are sent; (C) Providing appropriate special education and related services, and aids and supports in the regular classroom, to such children, whenever appropriate .… 20 U.S.C. §1400(c)(5) (emphasis added). 

Congress recognized that “special education can become a service for such children rather that a place where such children are sent.” 20 U.S.C. §1400(c)(5)(C) (emphasis added). Accordingly, Congress has made involvement and progress in the “general curriculum” an overall priority and goal for students with disabilities, bolstering the overall dual premise of the special education to provide an appropriately ambitious program in provided in, to the maximum extent possible, the general education setting. 20 U.S.C. §1400(c)(5)(D). 

Several regulations ensure compliance with this LRE mandate. “The IEP must include supplementary aids and services in order to facilitate the provision of services to the student in the general education classroom.” 34 C.F.R. §300.320(a)(4). Further, a student cannot be removed from general education classes based solely on a need for curriculum modification. 34 C.F.R. §300.116(e). And if a student will not be participating in general education classes, justification for that exclusion must be provided in the IEP. 34 C.F.R. §300.320(a)(5). Additionally, as stated above, unless the IEP of a child with a disability requires some other arrangement, the child must be educated in the school that he or she would attend if nondisabled. 34 C.F.R. §300.116(c). 

The IDEA is fundamentally a civil rights law, designed to protect the right to education of students with disabilities. It achieves this through creating a contract between the federal government and the States. In exchange for federal dollars, the States voluntarily commit themselves to implementing the provisions of the IDEA. Districts in the States that have committed to implementing the provisions of the IDEA, have as a requirement and a priority to give students with disabilities access to the general education curriculum and education in the regular classroom to the maximum extent possible. This requirement has been strengthened in each subsequent amending of the IDEA, not for arbitrary reasons, but because the idea of an education in the LRE is based on values and on outcomes. 

Abundant quantitative and qualitative research demonstrates that students with disabilities can achieve considerable educational benefit from access to the general education curriculum and placement in general education classes with supplementary aids and services, such as modified curriculum, resource rooms and itinerant instruction. Further, the research also supports the finding that when students with and without disabilities spend time together, all students benefit; thus, there is a positive correlation between academic achievement and inclusion. 

In making a placement determination, priority must be given to placement in the regular classroom with any necessary supplemental aids and services to make that placement successful. Only after the LRE is considered should districts move to more restrictive placement options. 

We understand that some are concerned that LRE is somehow inconsistent with making individualized decisions about students and is seen as a quota. ⁽⁵⁾ The Department has already made clear in guidance, however, that is not the case: OSEP has found that “(t)he IDEA establishes a presumption that children with disabilities will be educated in classes and settings with their nondisabled peers unless the education of children with disabilities cannot be achieved satisfactorily in those classes and settings with the use of supplementary aids and services.” Letter to Wohle, 50 IDELR 138 (OSEP 2008) at 139 (emphasis added). OSEP has also, at the same time, made clear that the IDEA does not require a set percentage of students to be educated in a general education environment. Letter to Wohle, 50 IDELR 138 (OSEP 2008). (6) This concern is, at best, overclaimed. In practice, the consensus would more likely render an even harsher judgment of these concerns. Administrative convenience has never been a legitimate reason for placing a student in a more segregated setting—indeed the individualized nature of planning for FAPE and LRE under the IDEA have ensured as much. 

The only situation that the Department has issued guidance stating that an LRE may be different was in response to the Deaf Community in 1992. The 1992 policy guidance, Deaf Policy Guidance, states: “Meeting the unique communication needs of a student who is deaf is a fundamental part of providing a free and appropriate public education (FAPE) to the child. Any setting, including a regular classroom that prevents a child who is deaf from receiving an appropriate education that meets his or her needs, including communication needs, is not the LRE for that individual child.” Deaf Students Education Services; Policy Guidance, Fed Reg., Vol. 57, No 211, (October 30, 1992) pp. 49274-75. Notably, the 1997 amendments to the IDEA codified this guidance and now requires that IEP teams : “consider the communication needs of the child, and in the case of a child who is deaf or hard of hearing, consider the child’s language and communication needs, opportunities for direct communication with peers and professional personnel in the child’s language and communication mode, academic level, and full range of needs, including opportunities for direct instruction in the child’s language and communication mode.” 20 U.S.C. §1414 (d)(3)(B). 

Lets look at some examples. Suzy is educated in her home school (the one she would attend if she did not have disabilities) in the general education classroom except for pull out for reading, and is making progress with individualized supplementary aides and services, modifications and accommodations. Larry is also in his neighborhood school, has a one-to-one aide, speech therapy, individualized accommodations and and is in the general education classroom all day. Lary and Suzy’s team agreed placement in the LRE was appropriate. Sherilynn was placed in a specialized school because the school was unable to keep her, or the other students safe because of Sherilynn’s behaviors. Sherilyn’s team agreed that her unique needs made the LRE an inappropriate placement for her at this time. All of the other students in the new school also have disabilities. Sherilynn’s team felt this more segregated placement would enable Sherilynn to receive FAPE. The question to whether a child’s placement will be in the general education classroom with peers without disabilities, centers then on whether the team agrees that the child can be provided a FAPE in the LRE; and, be reasonably be expected to make progress on challenging grade level objectives in that setting.

The law allows teams to make a determination to place a child in a more restrictive setting if the nature of their disability or current unique needs make such a placement necessary. It is a red herring to say that the more restricted setting is that child’s LRE. Doing so distracts from the real issue, which is that if the team rejects the LRE as the correct placement for a child, they must be cogent and responsive about why they have determined that 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. The discussion then becomes about a more restrictive placement on the continuum, one that the team feels will provide the child a FAPE.

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(1) Congress’ intention for what the LRE means can be found at 20 U.S.C. Section 1412(5)(B) and 20 U.S.C. Section 1414(a)(1)(C)(iv)), with language supporting what LRE was intended to refer to being found at 20 U.S.C. Section 1412(5)(B). (2) LRE was defined by the Department of Education at 34 C.F.R. § 300114: “General. (a) Each State educational agency shall insure that each public agency establishes and implements procedures which meet the requirements of §§ 300.115-300.120.

(2) 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 when 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.” Additional guidance about the weight and meaning of LRE is contained in the Continuum of Placement regulations found at 34 C.F.R. § 300.115: “Continuum of alternative placements. (a) Each public agency must ensure that a continuum of alternative placements is available to meet the needs of children with disabilities for special education and related services. (b) The continuum required under paragraph (a) of this section must: (1) Include the alternative placements listed in the definition of special education under § 300.38 (instruction in regular classes, special classes, special schools, home instruction, and instruction in hospitals and institutions), and (2) Make provision for supplementary services (such as resource room or itinerant instruction) to be provided in conjunction with regular class placement,” and § 300.116 (“Placements. Each public agency shall insure that: (a) Each child with a disability, including a preschool child with a disability, educational placement: (1) Is determined at least annually, (2) Is based on the child’s individualized education program, and (3) Is as close as possible to the child’s home; (c) Unless a individualized education program of the child with a disability requires some other arrangement, the child is educated in the school which he or she would attend if nondisabled; and (d) In selecting the least restrictive environment, consideration is given to any potential harmful effect on the child or on the quality of services which he or she needs.”)

(3) IDEA 1997 renewed and strengthened the LRE requirements. The considerations of inclusion and attending class with age appropriate peers and access to the general curriculum were expressly reinforced in IDEA 1997: The new focus is intended to produce attention to the accommodations and adjustments necessary for disabled children to access the general educational curriculum and the special services, which may be necessary for appropriate participation in the particular areas of the curriculum due to the nature of the disability. H. Rep. No. 105-95, reprinted in U.S. Cod. Cong. And Admin. News, 105th Congress, First Session, 97-98.

(4)  In the 2006 Final Regulations, Federal Register, August 14, 2006, the LRE language was strengthened to add: A child with a disability is not removed from education in age-appropriate regular classrooms solely because of needed modifications in the general education curriculum. 34 C.F.R. §300. 116 (e)

(5) IDEA requires states to report annually to the public on the performance of each of its local education agencies using Part B State Performance Plan Results and Compliance Indicators. Indicator #5 measures the percent of children with IEPs ages 6-21 who are served inside the regular class 80% or more of the day; less than 40% of the day; or in separate schools, residential facilities or homebound/hospital placements. See https://www2.ed.gov/fund/data/report/idea/partbspap/allyears.html (6) Letter to Wohle also pointed out that the regular education environment may not be the appropriate placement option for each child with a disability, but districts cannot remove students with disabilities from the general education environment merely because they require modifications of the general education curriculum.

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Professor Bon’s remedies – which imply that more students with intellectual and other significant disabilities would be kept out of general education classes – ignore the 40 years of research on students with disabilities that show a positive correlation between time spent in a general education classroom and performance on standardized measures of reading and math, communication skills, social skills, engagement, breadth of social networks, pro-social behavior, fewer suspensions and expulsions, and enhanced adult outcomes in the areas of independent living, employment, and participation in inclusive community activities when compared to students educated in segregated environments (Beukelman & Mirenda, 2005; Cosier, Causton-Theoharis, & Theoharis, 2013; Guralnick, Connor, Hammond, Gottman, & Kinnish, 1996; Helmstetter, Curry, Brennan, & Sampson-Saul, 1998; Hunt, Farron-Davis, Beckstead, Curtis, & Goetz, 1994; White & Weiner, 2004). In fact, these research findings are encoded in the introductory paragraphs in IDEA 2004, where Congress finds “Almost 30 years of research and experience has demonstrated that the education of children with disabilities can be made more effective by having high expectations for such children and ensuring their access to the general education curriculum in the regular classroom, to the maximum extent possible.”

Professor Bon calls for giving precedence to the potential academic benefit of various educational placements when students’ IEPs are being written and to downplay the potential non-academic benefits. We argue that separating academic from non-academic benefits is contrary to the last 100 years of public education in the U.S. It has long been recognized that successful adulthood requires much more than proficiency in “the 3 R’s.” All students need to demonstrate proficiency in communication, collaboration, use of technology, social skills, self-determination, problem-solving and the like. To suggest that educational teams might be able to quantify the educational versus non-educational benefits to students with disabilities ignores our understanding of how children learn and what really matters when it comes to being a successful adult.

The example of the student with an IQ of 46 who is “mentally retarded” represents not only outdated and prejudicial terminology, but overestimates the importance of IQ in predicting educational achievement. A rationale for extreme caution in using a number like a student’s IQ score to guide his education program is supported by research on how well IQ scores predict student achievement. McGrew and Evans (2004) concluded:

Given the best available, theoretically and psychometrically sound, nationally standardized, individually administered intelligence test batteries, three statements hold true.

·         IQ test scores, under optimal test conditions, account for 40% to 50% of current expected achievement.

·         Thus, 50% to 60% of student achievement is related to variables “beyond intelligence.”

·         For any given IQ test score, half of the students will obtain achievement scores at or below their IQ score. Conversely, and frequently not recognized, is that for any given IQ test score, half of the students will obtain achievement scores at or above their IQ score. (p. 6)

Micah Fialka-Feldman, a subject of the trailer of a soon to be released documentary called Intelligent Lives by Dan Habib (producer of Including Samuel), was asked how he felt when he learned that he had a 40 IQ. He responded “Well, I didn’t know what it meant so I Googled it. It said that people with 40 IQs could never live alone, go to college, or be employed. And I thought “Well, I am doing all those things!” (Habib, 2016).

Another flawed remedy is Professor Bon’s recommendation that students with disabilities who need to have “assignments modified more than 70%” would not be able to obtain educational benefit from a general education class. Even with all of our years of experience we don’t understand what Professor Bon means here. Does she mean that 70% of the general education standards are modified?

Perhaps Professor Bon’s reference to modified assignments means that the number of math problems given for homework is reduced for a student with a disability. We all have known students with cerebral palsy, for example, for whom manipulation of a pencil or computer to do 30 problems is prohibitively laborious. Yet this student could demonstrate her knowledge of the concepts of the assignment by only doing five problems. Can that student not benefit from being in general education?

Maybe Professor Bon’s standard of 70% modified means that the complexity of an assigned reading is modified to a lower reading level? We know many students with significant reading disabilities whose skills are 70% below grade level, yet they are clearly able to benefit from being in general education when they are provided with supplementary aids and services in the form of assistive technology.   Nor is there typically a debate or inquiry about whether it is appropriate to educate in the general education classroom other struggling learners, e.g., immigrant students whose formal education may have been interrupted, and who may or may not be English learners, or students who are educationally disadvantaged attending Title I schools.  

Professor Bon suggests that greater weight be given to the effect that a student with a disability has on a general education classroom. Here we agree with Professor Bon if she is talking about the “value-added” benefits that students with disabilities provide to a general education class. Those added benefits have been shown to occur in the realms of improved academic skills of all students (Choi, Meisenheimer, McCart, & Sailor, 2016; Theoharis & Causton-Theoharis, 2010); improved decision-making skills (Zhang et al., 2016); and improved attitudes towards diversity (Finke, McNaughton, & Drager, 2009).

Finally, Professor Bon suggests that the current LRE mandate in IDEA be preserved in future reauthorizations – not based on the plain language of the statute but on a selective review of case law. We join with a growing number of colleagues who believe that the actual mandate – “to the maximum extent appropriate, children with disabilities ….are educated with children who are not disabled, and special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only when the nature or severity of the disability of a child is such that education in the regular classes with the use of supplementary aids and services cannot be achieved satisfactorily” [20 U.S.C. §1412(a)(5)(A)] – has not been fairly and consistently applied for thousands of students with disabilities who are systematically kept out of general education classes, as evidenced by the huge geographic disparities in the mis-application of the statutory presumption to placement decision-making.

According to the 36th Annual Report to Congress on the Implementation of IDEA (U.S. Department of Education, 2014), the percent of students with intellectual disability educated at least 80 percent of the day in general education classes ranged from lows of 4.4 in Washington, 4.8 in New Jersey, and 5.5 in Nevada, to highs of 64 in Iowa, 48.6 in Puerto Rico, and 45.5 in Alabama.

For students taking their respective state alternate assessments, Kleinert et al. (2015) found that students with the most significant cognitive disabilities face even greater segregation.  In a study involving 15 states and nearly 40,000 students, these researchers found that the vast majority (93%) of students with significant cognitive disabilities were served in self-contained classrooms, separate schools, or home settings, while only 7% were served in general education or resource room placements. Most importantly, these authors found a positive correlation between expressive communication, reading, and math skill levels with increasingly inclusive classroom settings.  Being educated in the general education classroom does make a difference!

In summary, too many students are “still caught in the continuum” (Sauer & Jorgensen, 2016).  The time is long overdue to implement and enforce the plain language of the statute and for the U.S. Department of Education to eliminate those regulatory provisions that create straw men that serve only to undermine the statutory mandate, weaken the legal presumption, and camouflage continued discrimination on the basis of disability.

We agree with Professor Bon that the time and energy spent in litigation between parents and educators might be better spent on teaching students. Our recommendations for making that happen, however, are radically different from hers. We support efforts to scale-up the use of universal design for learning principles to all classrooms. We support efforts to expand access to communication and assistive technology to all students who need it. And we support school improvement and restructuring efforts that align with those funded by the U.S. Department of Education to the University of Kansas SWIFT project, including greater family and community engagement, strong administrative leadership, multi-tiered systems of supports used with fidelity, values- and evidence-based inclusive policy and practice, and integration of all support services for the benefit of all students.

These remedies won’t widen the gap between parents and schools but rather unite them in a common purpose founded on a belief that “inclusion is not about disability, nor is it only about schools. Inclusion demands that we ask, what kind of world do we want to create? What kinds of skills and commitment do people need to thrive in diverse society? By embracing inclusion as a model of social justice, we can create a world fit for all of us (Sapon-Shevin, 2003).”

Sincerely,

Cheryl M. Jorgensen, Ph.D., Inclusive Education Consultant, Author, Researcher

Kathleen B. Boundy, Co-Director, Center for Law and Education

Harold Kleinert, Ed. D., Director Emeritus, Institute for Human Development, University of Kentucky

Ricki Sabia, Senior Education Policy Advisor, National Down Syndrome Congress

Candace Cortiella, Director, The Advocacy Institute

References

Beukelman, D., & Mirenda, P. (2005). Augmentative and alternative communication: Supporting children and adults with complex communication needs (3rd ed.) Baltimore: Paul H. Brookes.

Choi, J. H., Meisenheimer, J. M., McCart, A. B., & Sailor, W. (2016). Improving learning for all students through equity-based inclusive reform practices: effectiveness of a fully integrated schoolwide model on student reading and math achievement. Remedial and Special Education [online], 1-14. doi: 10.1177/0741932516644054

Cosier, M., Causton-Theoharis, J., & Theoharis, G. (2013). Does access matter? Time in

general education and achievement for students with disabilities. Remedial and Special Education, 34(6), 323-332.

Finke, E.H., McNaughton, D.B., & Drager, K.D. (2998). ‘All children can and should have the opportunity to learn”: General education teachers' perspectives on including children with autism spectrum disorder who require AAC. Augmentative and Alternative Communication, 25(2), 110-122.

Guralnick, M. J., Connor, R., Hammond, M., Gottman, J. M., & Kinnish, K. (1996). Immediate effects of mainstreamed settings on the social interactions and social integration of preschool children. American Journal on Mental Retardation, 100, 359-377.

Habib, D. (Producer). (2016). Intelligent lives [Motion Picture Trailer] Durham, NH: University of New Hampshire, Institute on Disability.

Helmstetter, E., Curry, C. A., Brennan, M., & Sampson-Saul, M. (1998). Comparison of general and special education classrooms of students with severe disabilities. Education and Training in Mental Retardation and Developmental Disabilities, 33, 216-227.

Hunt, P., Farron-Davis, F., Beckstead, S., Curtis, D., & Goetz, L. (1994). Evaluating the effects of placement of students with severe disabilities in general education versus special classes. Journal of the Association for Persons with Severe Handicaps, 19, 200-214.

Individuals with Disabilities Education Improvement Act, PL108-446, 20 U.S.C. §§1400 et seq. (2004).

Kleinert et al., (2015). Where students with the most significant cognitive disabilities are taught: Implications for general curriculum access.  Exceptional Children, 81(3), 312-328.

McGrew, K. S., Evans, J. (2004). Expectations for students with cognitive disabilities: Is the cup half empty or half full? Can the cup overflow? (Synthesis Report 54). Minneapolis: University of Minnesota, National Center on Educational Outcomes.

Sapon-Shevin, M. (2003). Inclusion as a matter of social justice. Educational Leadership, 61(2), 25-28.

Theoharis, G., & Causton-Theoharis, J. (2010) Include, belong, learn. Educational Leadership, 68(2). Retrieved from http://www.ascd.org/publications/educational-leadership/oct10/vol68/num02/Include,-Belong,-Learn.aspx

U.S. Department of Education. (2014). Thirty-sixth annual report to Congress on the

implementation of the Individuals with Disabilities Education Act, 2013. Retrieved from http://www2.ed.gov/about/reports/annual/osep/2013/parts-b-c/index.html

White, J., & Weiner, J. S. (2004). Influence of least restrictive environment and community based training on integrated employment outcomes for transitioning students with severe disabilities. Journal of Vocational Rehabilitation, 21(3), 149-156.

Zhang, X., et al. (2016). Improving children’s competence as decision makers: Contrasting effects of collaborative interaction and direct instruction. American Educational Research Journal, 53, 194-223. doi: 10:3102/0002831215618663

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Disclaimer: The COPAA web site is not engaged in rendering professional advice services. The information provided through COPAA’s web site or any links from COPAA’s site is provided solely as a public service. The inclusion of any resource or link on COPAA’s web site does not imply endorsement or a recommendation.

The AASA implies that segregation is to the benefit of the student with disabilities, but abundant quantitative and qualitative research demonstrates that students with disabilities do achieve considerable educational benefit from placement in general education classes with supplementary aids and services.  Further, including students with disabilities in general education benefits students without disabilities.  Research shows that time spent with non-disabled peers not only benefits students socially and connects them with their community but also enhances academic achievement for students with disabilities. 

Two landmark cases, Mills v. Board of Education of the District of Columbia, 348 F.Supp. 866 (D.D.C. 1972) and Pennsylvania Ass’n for Retarded Children v. Commonwealth, 334 F. Supp. 1257 (E.D. Pa. 1971) and 343 F. Supp. 279 (1972) (PARC), set forth the foundational understanding of the Fourteenth Amendment principles on which the IDEA ultimately rests.  These foundational cases were specifically referenced in the legislative history of, and played a significant role in the passage of, the Education for All Handicapped Children Act of 1975, which is the predecessor of IDEA.  Honig, 484 U.S. at 309, 108 S.Ct. at 596 (citing S. REP. 94-168 (1975), 6, 1975 U.S.C.C.A.N. 1425, 1430).  These principles are so deeply embedded in present case law that many courts often overlook the need to  make specific reference to them in reaching decisions over more recent controversies.  The principles, however, bear restating as they provide the necessary context and foundation on which to view LRE protections.

First, “the right to an education, once given, is a fundamental right; therefore, the defendants must show a compelling state interest in order to lawfully exclude [disabled] children.” PARC, 343 F.Supp. at 283, n.8. Second, “[s]uch an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms.” Mills, 348 F.Supp. at 874 (quoting Brown v. Board of Education, 347 US. 483, 74 S.Ct. 686, 691 (1954)).  

When Congress amended the IDEA in 1997, it continued to link its authority and intent to the Fourteenth Amendment noting its desire to “restate that the ‘right to equal educational opportunities’ is inherent in the equal protection clause of the 14^th Amendment of the U.S. Constitution,” and that the IDEA is founded in and secured by the 14^th Amendment.” S. Rep. No. 104-275, at 31 (1996). Clearly, the IDEA is a civil rights act, implementing the equal protection clause of the Fourteenth Amendment and it places an affirmative obligation upon the States to provide children with disabilities a free and appropriate education. 

Congress expressed a strong preference in favor of educating children with disabilities in an inclusive setting and requires States accepting IDEA funds to educate children in the LRE to the maximum extent appropriate.  Appropriate in this context means the least restrictive setting available that will provide the student with FAPE.  Simply put, States that accept IDEA funding do not face the question of whether a student should be educated in the least restrictive environment.  Rather, Congress has required States and school districts to determine how a child can be educated in the LRE. Thus, school districts must, as a preliminary matter in every case, determine whether the child can be provided with an appropriate education in the regular education classroom with supplementary aids and services. See Department of Education v. Katherine D., 727 F.2d 809, 815 (9th Cir. 1983). Furthermore, the United States Supreme Court in Olmstead v. L.C. requires states to eliminate unnecessary segregation of persons with disabilities and to ensure that persons with disabilities receive services in the most integrated setting appropriate to their needs.  The Court said,  "Unjustified isolation, we hold, is properly regarded as discrimination based on disability. " 527 U.S. 581, 596 (1999). 

Ms. Bon’s reference to an unpublished, non-precedential case J.H. ex rel. A.H. and S.H. v. Fort Bend Indep. Sch. Dist. 482 F. App'x 915, 919 (5th Cir. 2012) reveals the depths to which she strives to make her assertions appear to have value.  In fact, not only do her assertions lack value, the case referenced by Ms. Bon confirms that a student may derive nonacademic benefit from interacting with [nondisabled] peers in mainstream classes, contrary to her assertion.

The IDEA is not an expiring authorization and therefore Congress does not need to reauthorize the statute.   If Congress decides to amend the IDEA, however, efforts need to focus on strengthening parent and student rights and strategies to ensure states are fulfilling obligations under the law.   Policy dialogue must be based on evidence based strategy proven to improve student outcomes; not on misguided opinions of individuals trying to allow administrators to shirk responsibility for providing meaningful education to all students under their care.   There are ample school administrators whose efforts embody the spirt of the IDEA and we encourage AASA to stop attacking parent and student rights and spend their time and resources towards amplifying successful and positive examples of supporting students with disabilities to succeed and prosper.

Susan Bon’s AASA Blog Post this week is offensive to parents and students and utterly fails to provide clarity on one of the most important procedural and substantive due process right contained in the IDEA since its inception in 1975.  In fact, Ms. Bon’s use of the offensive term “mentally retarded” indicates both her insensitivity to the community served by the IDEA and her failure to provide insightful commentary on LRE.

For over 40 years Congress has consistently made it an overall priority that a student with a disability is to be educated in the regular classroom to the maximum extent possible. 

Jessica Dembe, Research Assistant, JBS International

Eileen Elias, Senior Policy Advisor, JBS International

Anne Leopold, Research Analyst/Project Manager, JBS International

Traumatizing experiences, which include the use of seclusion and restraint, can affect children’s brain development and behavior. Children with intellectual and/or developmental disabilities (IDDs) are at greater risk than the general population for experiencing abuse, neglect, and the associated trauma. Behaviors resulting from trauma can create challenging and sometimes dangerous situations for the child, providers, and educators. To help those working with children understand and create a trauma-informed environment, JBS International in partnership with the Georgetown University National Technical Assistance Center for Children’s Mental Health have created the web-based tool Trauma-Informed Care: Perspectives and Resources (available at http://trauma.jbsinternational.com/traumatool and http://gucchdtacenter.georgetown.edu/TraumaInformedCare.html). The tool aims to educate child-serving providers and educators about the impact of trauma, including trauma resulting from the use of seclusion and restraint, and how to become trauma informed. It provides information about best practices from experts in the counseling, social services, and education fields. This publicly available tool includes videos and resources to assist users in understanding and staying current on all aspects of trauma-informed care.

In 2015, two videos were added to the trauma tool—“Intellectual/Developmental Disabilities and Trauma” and “Safety Without Seclusion and Restraint.” Both videos can be found at http://bit.ly/1jHswEt. The seclusion and restraint video provides timely information on practices and lessons learned to eliminate seclusion and restraint for all children.

Historically, seclusion and restraint have been used to control the behavior challenges of children with mental health conditions[1] in psychiatric hospitals, treatment facilities, and schools. For decades, it was frequently thought that, without effective seclusion and restraint practices, children, youth, and adults were in danger of injuring themselves and others[2]. Children continue to be subjected to seclusion and restraint interventions at high rates and are at risk of injury from these practices[3]. The controversial practice of secluding or restraining children when they are agitated continues to be used in public schools. Even if no physical injury is sustained, children, especially those with an IDD, are at risk of traumatization and re-traumatization during and after use of seclusion and restraint. A child does not learn meaningful lessons on alternative ways to communicate or interact when a teacher or treatment staff member responds to the child’s challenging behavior with seclusion and restraint. For decades, policymakers, clinicians, teachers, school principals, and direct care providers in child-serving systems have been challenged with not just reducing but eliminating seclusion and restraint as control and safety interventions. Teachers must know how to replace these practices with effective, non-traumatizing practices.

Eliminating seclusion and restraint is a trauma-informed practice. Being trauma informed requires a paradigm shift for educators and other child-serving providers in addressing behavioral challenges. A trauma-informed approach requires providers to change the question from “What is wrong with you?” to “What happened to you?”[4] Trauma-informed practices help children, teachers, and providers feel safe, protected, and valued.

The elimination of seclusion and restraint is a recognized priority by federal agencies including the U.S. Departments of Education and Health and Human Services and the Government Accountability Office. In 2012, the Department of Education’s Office for Civil Rights revealed that at least 70,000 children were subjected to physical restraint and 37,000 experienced isolated seclusion. In addition, students with disabilities were restrained and secluded more often than their non-disabled peers[5]. 

To provide nationwide protection from seclusion and restraint use, Congress introduced several legislative bills between 2009 and 2014. Although these bills did not become laws, they served as catalysts for the enactment of many state laws that address a range of requirement to reduce the use of seclusion and restraint. Protecting students from seclusion and restraint practices is currently a state responsibility. Progress has been made, but children are still not protected from use of restraint and seclusion in all states[6].

Research confirms that seclusion and restraint practices re-traumatize children, increase rather than decrease challenging behaviors, and do not calm the child¹⁰. As discussed in the “Safety Without Seclusion and Restraint” video, the use of seclusion and restraint practices can decrease a child’s ability to learn self-control[7], destroys relationships between the child and provider, and can cause the child to resent the provider[8]. When used in a school setting, seclusion and restraint practices can have a negative impact on the child’s educational learning. Although challenging behaviors might lessen for a short period, the resulting re-traumatization can remain with the child over the long term. Challenging behaviors may intensify months after the use of seclusion and restraint if the child does not feel safe[9].

Increased public education and outreach are needed to inform all stakeholders—teachers, providers, consumers, family members, advocates, policymakers, and elected officials—on the importance of preventing the use of seclusion and restraint and on using appropriate trauma-informed alternatives[10]. A workplace that employs trauma-informed staff is critical for ensuring that children and staff are safe and cared for. Every child deserves to be treated with dignity, be free from abuse, and be treated as an individual with unique needs, strengths, and circumstances (e.g., age, developmental level, responses to life issues, medical needs)[11]. These principles are part of the 15 principles specified in the U.S Department of Education’s Restraint and Seclusion: Resource Document, a 2012 report on seclusion and restraint. To ensure these principles are consistently and effectively carried out, nationwide attention must become a matter of importance. Schools are behind in understanding their responsibility in eliminating seclusion and restraint. Through federal laws, supporting regulations, and state and county laws, the elimination of seclusion and restraint can foster safety and security for children and workers in all child-serving systems, which must include our nation’s schools.

Special thanks to Georgetown University’s Sherry Peters, Senior Policy Associate, and Diane Jacobstein, Senior Policy Associate, for their assistance in editing this article. They can be contacted at: Sherry Peters: slp45@georgetown.edu or Diane Jacobstein: jacobstd@georgetown.edu

I do give her credit for owning the mistake and calling COPAA and many of our colleagues directly to discuss and apologize.  We spoke last night and I had the opportunity to tell Ms Esklesen Garcia that our members know all too well that through deeds and words students with disabilities are often marginalized in our schools.  I explained that the reality is that words, whether intentional or not,  are the most hurtful when they reflect the tone and attitude many of our families experience daily in schools.  

We see it when the general education teacher forgets to include the child with disabilities in field trips, class photos and assemblies. 

We hear it when we are told that our children cannot have related services because "that's not how we do it here," and, when we are told that our children have to spend their day in the hall way or principal’s office because of their behavior and are encouraged to medicate our children in order for them to attend school. 

We experience it when our kids are pushed out, restrained and secluded and arrested. 

Our kids are often treated at school as annoyances, afterthoughts.  It seems the only time they get mentioned at all is at budget time as the scapegoat for all that is wrong with funding education.  

In our call, I pointed out that in a blog post on the NEA site Ms Esklesen Garcia herself rightly stated that when students of color are marginalized and stereotyped, it is far more difficult for them to learn and achieve.  And that is exactly our point regarding her word and our students with disabilities.  

To me, Ms. Esklesen Garcia statement verifies that implicit bias is alive and well in our nation’s schools.   One of the obvious challenges of changing implicit bias is to become conscious of our beliefs and take actions to counteract the bias.  Ms Esklesen Garcia, and the educators she leads, can and must use promising practices to address this implicit bias for all marginalized students. 

To be fair there are many wonderful examples of teachers and administrators who go above and beyond to creatively and enthusiastically support students who need additional supports and services, modified curriculum or differentiated instruction. We said in our statement the other day, and I repeat: our children will not be successful without good teachers.  We applaud and support their efforts.  We recognize the extra steps many take on a daily basis to support students with disabilities to learn and to grow.

The message from the NEA leadership needs to embody the good work of their professionals and the care, strength and commitment teachers bring to all students, including those with disabilities every day.

So I frankly told her that what we need and what we expect now are deeds from NEA to promote exemplary teaching.  Help us change the conversation to how to support every child to succeed.  We know all students can learn and we need teachers to be meaningful partners with us in that journey.  I asked that future posts, speeches, activities and policy from the NEA serve to move our educational system forward in serving diverse students well.  She graciously agreed.  COPAA stands ready to work with the NEA and our colleagues to make such positive change a reality.

The glass half full part of me certainly hopes to see glimpses of understanding and support for our students here forward from the NEA. For after all, actions speak louder than words. 

Ms. Freedman claims that when teachers focus on students with disabilities, the other students will be shortchanged.  This notion is wholly unsupported by scientific research, in fact studies have shown just the opposite.

Research has shown that academic performance for students without disabilities is equal to or better in inclusive settings (i.e. settings with disabled and non-disabled students) than in non-inclusive settings, and that the presence of children with disabilities in the classroom has no effect on the time allocated
to instruction or levels of interruption. Contrary to Ms. Freedman's claims, scientific research also shows that students with disabilities have higher levels of academic achievement in inclusive settings.    On this point, the research is clear: students, both with and without disabilities, do better academically when they are educated side by side.

Research also supports the significant social and emotional benefits that all students receive in inclusive classrooms.    Ms. Freedman minimizes the importance of these social and emotional benefits, which is unfortunate, as these benefits can be life altering for both students with and without disabilities.

Ms. Freedman correctly states that students with disabilities have rights to a free appropriate public education and an individualized education program, which allows for parental involvement. However, she then states "that no other group of students or parents enjoys such rights. "

All children have a right to education.  Brown v the Board of Education, the seminal Supreme Court case mandating racial desegregation in schools, established education as a right to which ALL children are entitled. Individualized programming is a necessary component of the education of children with disabilities because their educational needs are individual.    One student might require Braille while
another might need extra help with speech.  Ms. Freedman's claim that no other group of students enjoys these rights is akin to saying "People who can't walk get to use wheelchairs. Nobody else gets to use wheelchairs!”

Ms. Freedman states that "this policy [of inclusion] is generally based on notions of civil rights and social justice, not on ‘best education practices' for all students.”   Not only does she ignore a body of scientific research that contradicts her viewpoint, but she does so while discounting the importance of civil rights and social justice.    Historically, students with disabilities were excluded from mainstream education, warehoused and denied an appropriate education which would enable them to hold a job and contribute to society as adults.

With changes in the law over the past 35 years to protect the civil rights of children with disabilities, millions more individuals are now able to enter the workforce, pay taxes and live productive lives as a
result of receiving an appropriate education.

Ms. Freedman speculates that including students with disabilities in regular classrooms is driving parents to remove their children from public school.    She then,incredibly, comments that "our schools thrive only with a diverse student population and engaged parents—not with the departure of those who choose to leave.”

She is correct in stating that our schools thrive with a diverse population and engaged parents.   However, the idea that removing children with disabilities from regular classrooms will
promote diversity, defies comprehension. A return to segregation and exclusion of children with disabilities will hardly promote diversity and is definitely not the way forward.

 It is imperative that we engage in thoughtful debate on how to improve educational outcomes for all children, both with and without disabilities.   However, it is crucial that this debate take into account scientific research, the law and evidence based educational practices, as well civil rights and social justice.    Only with a fully informed and nuanced perspective can productive, creative and intelligent discussion about education take place for the benefit of all students.

While Congress sits in Washington engaged in debate about the future of education in this country, millions of children are celebrating summer.  Some will continue to attend school in extended school year placements or summer school. Some will re-enter in the fall. Some have disability labels, some do not. All have one thing in common though; they are the future generation, our greatest hope and most precious responsibility. Our elected officials need to stop the partisan posturing and work together to assure that every student in America has what they need to obtain the life knowledge and tools that come from receiving a quality education.

We expect Congress to stop bickering across the isle and discuss meaningful data and evidence proven to successfully harness the knowledge, wealth, and ingenuity in this country to ensure that every student has an equal opportunity to achieve to their full potential. The Elementary and Secondary School Education Act (ESEA ) was originally enacted to assure, and must continue to provide, accountability for the use of federal funds to improve life opportunities for low income, underperforming and disenfranchised students.

What do those students and their parents want when they enter the school house? The same thing all parents and students, including those with disabilities, expect; that every student:

Is treated with respect and a presumption of competence  to learn.

Has a safe school learning environment that meet challenges with positive, instructional, evidence based approaches.

Has highly qualified teachers that understand and can deliver instruction to meet the needs of diverse learners.

Is challenged to learn the general education curriculum at grade level,

Makes real, measureable progress on relevant goals, and receives the services accomodations and supports to which he or she is entitled under the law.

Counts in robust and systemic accountability that is outcome-based and insists that every school provides equal access to a high quality education for all.

Has the opportunity to graduate, go to college, get a job.

Is meaninfully engaged,

has friends,

has fun,

learns.

Let's stop the rhetoric and work together to provide meaningful opportunities for every child to achieve, to contribute, to graduate career and college ready, to secure a meaningful job, to earn money, and be a productive and contributing member of  his or her community.

Our government must live up to its obligation to educate all students equitably and hold States accountable for assuring that every child has a chance to learn.

COPAA Policy Statements on ESEA

      ESEA Update - Senate Bill Passes, House to Mark Bill (June 18,2013)

      House and Senate Work to Reauthorize ESEA (June 12,   2013)

Recent COPAA ESEA Policy Letters

The original federal special education laws were enacted over 35 years ago, as one of many pieces of federal legislation which sought to enforce the Civil Rights that were being denied to disenfranchised or underrepresented individuals. Yet, somewhere along the way, it seems that people have forgotten that special education is a Civil Rights issue. An educational system marked with low expectations for students with disabilities, combined with a tough economy, have further marginalized students with special needs, as well as those of us who are fighting every day to enforce the Civil Rights of children and adolescents with disabilities. It's time we took back the high ground on this issue. It is time to talk about EDUCATION EQUALITY.

We have learned from many other successful socio-political movements that language matters. To that end, we propose a radical shift in how we, the advocates of the Civil Rights of individuals with disabilities, talk about our stakeholders, and ourselves in order to make clear that the goal is not procedural compliance with a statute. The goal is to support each student, through the spirit and the letter of the law, to be as independent, as self-sufficient, as self-advocating as possible, and to enforce their right to a successful education.

Following are just a few examples.

• We are not special education lawyers and advocates we are civil rights lawyers and advocates for children;
  
• We don't have special education practices, we have civil rights practices;
  
• We don't want our children to make progress we want them to master the materials;
• Students aren't being suspended or expelled they are being excluded from class and from learning;
  
• We are not planning for our children to transition to an agency, we are planning for them to live and work independently;
  
• Our children are not being removed from class, they are being segregated;
  
• Our children don't need special services, they need a meaningful education.

As our colleagues Andy Feinstein and Michele Kule-Korgood shared with us during the recent COPAA Town Hall, there is much talk in this business about whether an education for a student with disabilities should be a Chevy or Cadillac. No more Chevys, no more Cadillacs. We need cars that run, have four tires, and, most importantly, get to their destination. We need to insist that our clients have the rights, respect, and equality to which they are entitled.

Please, feel free to comment with your own suggestions to help us redirect the focus to where it should be: on effective, meaningful special education programming that is designed to produce independent citizens.

Friday, June 8th, 2012

Congrats to COPAA members of the firm Reisman Carolla Gran, LLP for a decision received yesterday in Alief Independent School District v. C.C., a district court case in Texas, re-affirming that school districts cannot get attorney’s fees absent a showing of improper purpose and acknowledging the important role of parental advocacy in the enforcement of IDEA.
"IDEA has a broad remedial purpose: "to ensure that all children with disabilities are provided with a free appropriate public education . . . [and] to assure that the rights of [such]children and their parents or guardians are protected.” Forest Grove Sch. Dist. v. T.A., 129 S. Ct.2484, 2491 (2009) (internal quotation omitted). "Parental participation in the development of an IEP is the cornerstone of the IDEA.” Ector County Indep. Sch. Dist. v. VB, 420 Fed. Appx. 338,348 (5th Cir. 2011) (internal citations omitted). After all, parents play a "significant role” in the IEP process. Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 523 (2007) (internal quotation omitted). "A central purpose of the parental protections is to facilitate the provision of a ‘free appropriate public education,’ § 1401(9), which must be made available to the child ‘in conformity with the [IEP],’ § 1401(9)(D).” Winkelman, 550 U.S. at 524. Procedural safeguards, including the right to seek administrative review of school district determinations, are at the "core of the statute.” Schaffer v. Weast, 546 U.S. 49, 53 (2005) (internal citation omitted). "The IDEA also imposes extensive procedural requirements designed to ‘guarantee parents both an opportunity for meaningful input into all decisions affecting their child’s education and the right to seek review of any decision they think inappropriate.’” Buser by Buser v. Corpus Christi Indep. School , 51 F.3d 490, 493 (5th Cir. 1995) (quoting Honig v. Doe, 484 U.S. 305, 311-12 (1987)).

Full decision in Alief Independent School District v. C.C.