The Switch

   By Brenda Rogers M.A./A.B.D.

   

     In a meeting with: a public school principal, school psychologist, school nurse, general education teacher, special education teacher, school system attorney, mother of a student and a special education advocate, decisions are made about whether or not a disabled student is entitled to support in school. In this meeting, the law says everyone at the table is an equal member of one team. The reality is that mom and her advocate have no authority and hold the power of the veto and appealing to higher authority in cases of procedural lawlessness. 

       The team's purpose is to help a struggling student succeed in school. The student's team comes together to examine evidence that determines if the student is eligible for an Independent Education Plan (IEP). If the student gets the IEP, the student will have government protections as a disabled person. These government protections allow the student to get specially designed instruction, accommodations, modifications and supportive services that insure meaningful annual progress in school. Without these protections, the student is free to fall further and further behind each passing year, without any special help. The following story is based on real life events but names and cities have been removed to protect the innocent.

       In a California meeting, a school psychologist presents information to the student's team. The school psychologist reminds the team that this meeting is part 2 of a meeting to decide if a student is eligible for special education. The psychologist reminds the team that the student has a medically diagnosed learning disability and academic achievement testing shows a couple lower scores in reading but not enough to be considered alarming. Next, the school psychologist presents the team with a report of student grades. "The student is passing in all curricular areas at or above grade level," says the school psychologist. Puzzled by the report of grades passed around to all team members, the advocate asks the psychologist: "did you notice that the grades show one curriculum area where the student is not passing?" 

       The teacher answers: "the low trimester grade reflects the fact that the student just hasn't been taught 100 percent of the information for the school year in that area of the curriculum." Confused by the answer, the advocate replies: "can you tell me what criteria you used to produce the grade?" "this grade reflects student test performance in this one area. The student's tests are below passing level," says the teacher. Probing for clarification, the advocate says: "that means that the student was taught the curriculum in that area and then tested." The meeting room goes quiet again, the educators sit silently stern faced looking at mom and her advocate as if to show their forced tolerance of an impolite interruption of their meeting. With a Cheshire grin, the advocate breaks the silence by asking the school psychologist: "is it standard practice to test students on curriculum not yet taught?" After a brief pause, the advocate inquisitively asks: "If the student is passing at or above grade level in all curricular areas, why do we see these consistently failing grades in language arts?" With a monotone voice, the school psychologist solemnly replies: "There is one area where the student is not passing at grade level." 

       Mom then adds: "just to get the work done in class, my child says she has to get extra help in Language Arts from you every day." In response, the teacher defensively replies: "the student can do the work. I've seen her do the work. The student just doesn't want to because she is too busy writing notes to her friends in class." Mom responds by saying: "I thought the notes stopped at the beginning of the year when my child was seated off by herself five feet away from all the other students in language arts class." Irritated, the teacher huffs: "she still wants to write notes even if she can't send them. She can do the work. I know. I'm in that class and I have seen your child do it." 

     Quickly, with an air of authority, the principal interjects: "the student does not need an IEP because the student's disability is not impacting academic achievement." Following the principal's lead, the attorney gives what appears to be the final word and concludes by saying: "The school team agrees that the student is passing in all curricular areas. The student is not entitled to an IEP." Taking an unexpected final show of authority, the principal looks at mom and her advocate and states: "This meeting is over," before she orders the school nurse to make several copies of the official paperwork.
          The meeting is officially over. The school nurse walks out the door to make copies in another room. Mom and her advocate sit waiting like strangers, in a schoolroom, with educators who look quite at home in their environment. Within 30 seconds of meetings end, school employees start chatting. Lower status educators begin to giggle when the school principal fills the quiet noise with a personal memory to illustrate her experience and age. "I was in college when personal computers were first made available to the public. Now we create official documents on notebook computers," says the principal. The school's attorney chimes in recounting how old and where she was the first time she connected to the internet using dial up service. The psychologist then offered her short story before the group, with a melodious tone, began light heartedly chit chatting about various topics. 

        Meanwhile, mom and her advocate sit frozen and speechless, with wide eyes, looking down at the data sitting on the table showing the student has been failing language arts all year, apparently with extra help from the teacher. Mom and her advocate sit at the table with educators who are now completely in their own world. For the educators, and their attorney, the mother and her advocate are as invisible as loitering homeless at a gas station. A passerby peeking in the room, at that moment, would think these educators, and their attorney, are having a tea party.

           Mom and her advocate sit solemnly speechless at a boisterous table gobsmacked by the switch. Mom and her advocate just witnessed school employees switch realities from being in an official government agency meeting to being part of a social club within 30 seconds. The reality switch occurred so smoothly and quickly that it looked like a habit as well rehearsed as a woman washing her hands after using a public bathroom. The reality switch happened right after the advocate and mom watched these government bureaucrats switch the analytic criteria used to make a judgment about whether or not the student is eligible for government protections. The valid criteria used to determine eligibility comes from evidence showing student grades in all curricular areas are passing. For these educators, in this meeting, the criteria for passing at grade level in all curricular areas is based on grades showing failure in one curricular area (known for its relationship to the student's medically diagnosed disability). 

        After mom and her advocate passed through the looking glass, they were shocked and disoriented by this new reality grounded in strange physics and foreign customs. If the criteria used by these educators to determine passing in all curricular areas is valid, then all students with D's and F's, in all public school classes, are now passing. Impromptu analytics notwithstanding, this student's ability to access her rightful government protections as a disabled student has been denied based on changing eligibility criteria determined by this group of bureaucrats, now chatting rhythmically to the tune of Mad Hatter's Very Merry Unbirthday. 

        Still stunned by hearing the equivalent of Wonderland's Queen say: "off with her head," mom and her advocate start watching the door for the way back through the mirror. Mom and her advocate are in no mood to celebrate mundane free time enjoyed by government bureaucrats. Mom and her advocate are not amused by the slight of hand and slip of wrist decision-making process just passed off as law and order. It looks like the student just fell through the cracks in the education system.  However, mom and her advocate just witnessed the truth. Mom just watched her student's teacher, administration, and their attorney, push her daughter through the cracks because they all know their actions have no accountability in a world where working poor mothers and fathers cannot afford to purchase equality under the law. 
          Finally, the nurse walks back into the room. The government bureaucrats quiet down. Mom and her advocate sigh in relief knowing that the heaviness of the discomfort is over. The documents stating the child cannot have an IEP are handed to mom and her advocate before the pair exits the room.

       In the parking lot, mom tells her advocate: "I can't believe what just happened. The educators just did whatever they wanted to do. They don't care about my child at all. I guess all I can do is wait and try again next year because we can't afford an attorney. Attorneys want thousands of dollars in retainers or monthly payments. We cannot afford either option. It seems like my child has to fall further behind, like maybe three or four years below grade level, before I can get any help from the school."

       The advocate replies: "It comes down to a few desperate options: we can wait for your child to fall further behind and try again, we can file a uniform complaint on the school psychologist for not accounting for the failing grade in one curricular area and hope this forces the team to meet again and reconsider the grades, or you can take the school system to due process yourself. I know you don't want to wait for deeper failure. I also know you have no college education, no experience and are not prepared to present your case to a judge. So, would you like to file a uniform complaint on an employee?"
       Mom looks like she's been punched in the chest. Mom asks: "So, we have to come against someone's job or be our own lawyer? These people work with my child. If I file a complaint on someone that impacts their job, how will they treat my child? what does the state expect us to do when we have no money for lawyers?" 
         The advocate explains: "well, it comes down to rights versus relationships. Your child has failed all year. We can't get the help to pass today and we know she has a disability. You risk the relationship disruption to keep from walking blindly in the dark as your own attorney. The thing about retaliation is that school employees are less likely to retaliate knowing you are able to file complaints against them for dereliction of duty on the job."

          With a sigh of hesitation, my says: "let's file the complaint." The advocate console's mom by explaining how they were backed into this corner. Mom's advocate explains:"I'm sorry. The problem here involves the substance of decision making, rather than observations of procedural lawlessness. If the school would have failed to perform an action required by law, we could use state Procedural Safeguards to force lawful treatment. And, if this type of problem would have happened before September of 2017, I could have taken this case to due process for you, without charging. You know, advocates used to be able to represent parents in due process hearings. I could have at least prepared the case and given you a fighting chance in front of an administrative law judge. But, the Office of Administrative Hearings (OAH), the agency performing due process hearings and mediations for schools, called the California BAR association asking for clarification about advocates in due process. OAH asked the BAR to decide if it is legal for California advocates to represent parents in due process hearings. You know, OAH did not tell the BAR association that advocates have been representing parents in due process since the 1980's and non-attorney school employees, in some California school districts, represent schools. Without knowing the history of due process in CA, the BAR association wrote a letter stating that it is unlawful for advocates to represent parents in due process hearings."   
      The advocate adds: "Do you know what makes this situation even worse? If your child commits a crime, your child can have a free public defender. The state will pay an attorney to ensure your child gets due process of law in cases of criminal behavior. But, in cases where your lawfully behaving child's future life chances at stake, the state just decided that you low-income parents are on your own to ensure your child gets due process of law." 

         In this case, the advocate helped mom by appealing to a higher authority within the bureaucracy itself. Since the advocate could not use the state due to the problem residing in decision making criteria, the advocate was forced to use the bureaucracy's accountability system for job performance. Mom's uniform complaint against the school psychologist helped because the school psychologist's performance was under evaluation by her superiors in the school district.

         The team met again and was forced to consider the failing grades in language arts. Interestingly, the whole team agreed the student qualified for an IEP under the category of specific learning disability due to the evidence of persistent failing grades in language arts, the diagnosis of a learning disability and a rather significant gap between academic achievement in reading comprehension and phonemic awareness and her full scale IQ score. Previously, the team had overlooked the gap between low academic achievement scores and overall IQ score because the difference was between 15 and 19 points. The California educators insisted that 21 points was needed to consider the student learning disabled. However, the law stipulates that 21 points is not required for an IEP team to find a student qualifies for special education under the category of specific learning disability. The entire process of getting an IEP took over 10 months and spanned two academic years, because of summer break.

        The student received remediation in phonemic awareness skills and her reading comrpehension improved. The student was behind in language arts by three grade levels before the student's grades began to improve. By the end of high school, the student was able to graduate with a diploma. 

        By the time this student secured an IEP, the student was far below grade level in an area that could impact her future. While the student did get some reading remediation service, it was minimal and took an entire school year to make a difference. There was no way to get a quantity of intervention sufficient to help the student quickly recover skills because there was no compensatory education services for the time lost by educator dereliction of duty.   

        Ironically, there is not guarantee the student would have won her due process case. There was a high probability that the school district would have settled the case because the student continued to fail in language arts as time passed. Had this case gone to due process, the student may have had a chance to get compensatory services that would have brought her reading skills up to grade level much sooner than the way things occurred without due process. In the end, advocacy helped but getting help was much slower without the option of a due process hearing.   

         This is a cautionary tale. Not all IEP teams operate as if the meeting takes place in  a state of altered reality. Nevertheless, many parents and advocates walk through the looking glass when they enter the IEP meeting. In many states, advocates are able to represent parents in due process hearings. Because the method of advocacy used in this case does not seek justice for a student, compensatory services were not an option. Appealing to a higher authority within the school district itself helped stop the use of some strange analytic criteria used in decision making and helped get a needed IEP for the student. However, appealing to a higher authority within the district does not stop IEP meetings from becoming soul battering experiences in wonderland.

      

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