Holding the Torch

CHARGING ABUSIVE COPYING FEES CAN PREVENT PARENTS FROM OBTAINING STUDENT RECORDS

    Attorneys in our office have heard repeated complaints from parents who are trying to obtain copies of their child’s special education/school records.  These records are essential for a complete analysis of potential claims and remedies for students in discipline and special education cases.  The most recent example was a parent who reported that staff in the Prince William County School district demanded $2.00 per page to copy special education records.  The parent left the school office unable to afford the cost of copying the necessary parts of his child’s special education file.  Such fees are simply abusive.

     When we looked into this problem, we learned that the cost and policies for copying school records varied significantly by school district.   A quick survey of four Northern Virginia school districts showed a range from $0.20 per page with a minimum of $5.00, to the $2.00 per page requirement by Prince William County.

     School districts are legally permitted to charge fees to copy school records, but Federal Regulations require that the school may not do so in such a way that “the imposition of the fee effectively prevents a parent ….from exercising the right to inspect and review the student’s education records…” 34 CFR 99.11.  If parents experience a problem with unreasonable fees or access to student records, they should attempt resolution through written requests to administrators in the school district.  If that doesn’t work, a written complaint can be sent to the Virginia Department of Education.

     After an intervention with the school’s attorneys, the parent in our example was able to obtain and review records for a reasonable cost.  We are told that the Prince William County Public School district is reviewing and changing it's policies regarding fees for copying school records.  We welcome the effort on this issue.

WILL THERE BE AN INCREASE IN DUE PROCESS HEARINGS AS SCHOOL DISTRICTS MAKE BUDGET CUTS?

     A number of parent advocates and school board attorneys are predicting that school budget cuts affecting staff and programs will result in more due process actions in special education cases.  The IDEA does not permit school districts to deny FAPE (A Free Appropriate Public Education) on the basis of budgetary restraints.  However, many parents have told us that they know this is a major consideration in IEP meetings when there are disputes about services and placements.  It is the unspoken reality.
 
     Kathleen Mehfoud is an attorney who represents several school districts in Virginia and has been opposing counsel in many of my special education cases.  Kathy was quoted in a recent article for the Special-Ed-Connection  about the projected increase in due process cases.  She said, “Without a doubt, its coming.” “It’s just reality. You can't do budget reductions without reducing staff.”  I agree.

     Additional challenges for educators and parents of children with disabilities will come quickly and from several directions.  Parents will no longer be able to afford private supplemental services and tutoring to help their children succeed in school.  School administrators are looking at cutting programming, increasing class sizes and are telling teachers to keep “doing more with less”.  To help reduce the prospect of increasing disputes, here are some things that come to mind:

    • In IEP meetings avoid any references to the costs of services - it’s not relevant and it takes the focus off problem solving for a child.

    • The IDEA contemplates that the IEP team functions as one “team” - not two teams with “school on one side” and “parent(s) on the other”.  Look for specific opportunities to solve problems cooperatively.  The parent and the school each take responsibility for a part of the solution.

    • Look for ways to improve the frequency and quality of communication between teachers and parents.  Each takes responsibility for this.  When parents and staff only see each other once a year in an IEP meeting, there is no working relationship and dispute resolution is more difficult.

     If the budget crisis is going to cause more stress in the educational system, then maybe we can use the stress to fashion more efficient and workable problem solving mechanisms for special education disputes.  This sounds better to me than spending more money for lawyers to litigate in more due process hearings.

IN SCHOOL DISCIPLINE HEARINGS PARENTS AND STUDENTS DESERVE RESPECT

    A student and his parents are sitting in my office telling me about their experience in a disciplinary hearing before a school hearing officer.  It was a first offense.  The student had forgotten to take his pocket knife out of his back pack after a weekend camping trip.  It was discovered at school and he was suspended with a recommendation for expulsion for having a concealed weapon at school.  Criminal charges were threatened.

     The student was remorseful and understood that he had made a mistake.  The parents seemed to be handling the situation in a responsible way and were not excusing their son’s oversight or denying the fact that school regulations had been breached.  However the initial discussion with me focused on the feelings this family had about the way they had been treated in the disciplinary hearing.

     The parents had supplied a letter from their son’s private counselor and other character letters.  They reported that the hearing officer seemed to give this little weight and moved on. After questioning the student about the details of the offense, the hearing officer started an angry lecture about school safety and asked, “what would have happened if someone had been stabbed with your knife?”  This appeared to be a hypothetical that was so far from the actual facts of the case that it began to erode the hearing officer’s credibility in front of the child and his parents. The parents reported that they felt like marginalized by-standers as the hearing officer launched into an apparently canned lecture about “zero tolerance”.  It was not a good session.

     We often hear from parents who truly believe in fair consequences and in holding their child responsible for his behavior.  They are not overprotective and they see themselves as trying to work collaboratively with the school in providing discipline for their child.  However, when there is this kind of gross overreaction from school staff, at best an important learning opportunity is lost, and at worst, damage is done.  School administrators and hearing officers need this feedback.  They must ensure that these hearings accomplish something other than driving more wedges between the family and the school.  I have long believed that discipline cases are opportunities for schools and parents to find creative ways to cooperate to prevent repeat bad behavior.  Learning takes place when there is respectful interaction.

     The Virginia Department of Education has posted guidelines for the use of restraints for emergency situations when students become violent.  In these guidelines there is a statement of philosophy which says in part: “Each child is valued as a contributor in the education process and schools must ensure that children are treated with respect and dignity and that the learning environment is safe.”  I think we should adopt this statement to govern not just emergency protocols but all student discipline proceedings.

FOR SCHOOL DISCIPLINE HEARINGS, - YOU ARE NOT IN COURT

    Lawyers who practice Juvenile Law have told me for years how frustrated they are with appearances before school hearing officers and school board committees in disciplinary hearings. They complain that there is “No presumption of innocence!”, that “They rely on third hand hearsay!”, and that “They want the student to admit guilt when he/she is pending a Juvenile Court trial!”  

     Let’s start with a basic premise: school disciplinary proceedings are NOT court proceedings and they are no meant to be.  So, to be effective as an advocate in these hearings, it is important to understand some very basic realities. 

     First, the US Supreme Court has told us that the due process requirements for school suspensions must include prior notice of the violation and an opportunity to present the student’s side of the case. Virginia law requires written prior notice for expulsion cases and the opportunity for a hearing before the school board (or a committee of the school board).  Only a school board can expel. 

     We need to accept the fact that school hearing officers and school boards are not neutral arbiters in school discipline cases.  School board members are politicians who were probably elected in part for their commitment to maintain school safety.  Your student’s behavior may present a threat to that commitment.  Remember, school hearing officers are employees of the school board and are bound by certain policies (written or otherwise). 

     Does all of this mean that an advocate cannot make a positive difference in school discipline hearings?  Not at all.  Understand your forum and you can help achieve a fair and reasonable outcome.  I will revisit this topic often to discuss specific techniques that work, - and some that don’t.  But, for now, here are some basic thoughts:

• Prepare the student to address the hearing officer directly.  The student should be able to answer questions and be prepared to acknowledge appropriate responsibility.  If there are pending court trials regarding this incident, the student/parents should consult with defense counsel about how to handle detailed questions about the incident in order to preserve 5th Amendment rights.  There are a number of ways to do this without bringing the school hearing to a confrontational standstill.

• This is not a Federal criminal trial – don’t act like it is.  You are there to facilitate a correct analysis of facts; a review of educational progress and needs, and to make a determination of consequences that fairly fit the violation.

• Have the parent(s) describe how this offense/suspension has affected the family and what consequences they have imposed on their child for bad behavior.

• Recognize legitimate school safety concerns and offer a proposed disposition that addresses school/student safety.

 

PUNISHMENT BEFORE GUILT? - EXPANDING SCHOOL AUTHORITY TO PUNISH OFF SCHOOL BEHAVIOR.

    In recent years the Virginia General Assembly has considered and passed modifications to the state law which enable school administrators to punish the off school conduct of students regardless of the direct impact of such conduct on the administration of the school. By statute, crimes against juveniles are charged by petition in the juvenile court. When certain designated serious crimes are filed with the court, even if the offense did not involve any circumstance related to the school, the juvenile court intake officer is required to file a pre trial report with the superintendent of the school district in which the defendant juvenile resides. School superintendents are empowered to take disciplinary action against the student pending court disposition. Such consequences can include suspension or exclusion from the regular school and placement in an alternative school. Remember this is all before any adjudication of guilt by the court. These are dispositions by the school administration when the juvenile defendant, like anyone, is presumed to be innocent until proven guilty.
     These laws prescribe a very detailed protocol for the notification to school administrators of criminal petitions filed against alleged juvenile offenders. There are other statutory procedures for notifying school administrators if an alleged offender is found to be “not guilty” or a prosecutor determines that there was never sufficient evidence to bring a criminal charge and later withdraws the criminal allegation. Yet a student who has been suspended or excluded from his regular school will suffer a notation of such disciplinary action on a school record.
     The proponents of such expanded authority by the school administration cite the need for additional powers to maintain school safety and protection of the alleged victim from the alleged offender.  Yet knowledgeable school administrators are also quick to say that the role of the school is not to act as a police officer in the community. School officials rightly point out that our society demands too much from school administrators and teachers. They are educators and they cannot, and should not, supplant the roles of parents, courts, police and other community leaders that help to guide our youth. Laws that blur the appropriate role of school administration work against a clear definition of appropriate roles. In addition there is little evidence that punishment of off school behavior by school officials in cases where there is no direct nexus to the school administration does anything to either make the school or community safer.
     When we look at the expansion of school authority to punish unrelated off- school behavior by exclusions or suspensions, we should also consider that:
    • A fundamental tenant of our system of justice is the presumption that a person (including a student in a public school), is presumed to be innocent until proven guilty. 
    • When schools are quick to suspend and ask questions later, there is further erosion of the perception of fairness by students and parents. This is a serious consideration for at-risk children who are on the verge of dropping out.  
    • Juvenile Court judges currently have all of the tools needed to protect victims in the community and the schools.
    In short, due process and fairness should always trump administrative convenience.

* This posting has been amended to clarify that there are statutory procedures for notifying school districts when juvenile defendants are found not guilty or charges are withdrawn,

HOLDING THE TORCH

With this posting, I am launching my blog "Holding the Torch" which will be a regular and hopefully informative discussion regarding issues related to special education, school law and juvenile law. As an attorney who has practiced in these areas for many years, I am always engaged with parents, children, school officials and judges about the complexities and unique challenges facing some of our youth.

Whether it's a single parent trying to find mental health and special education services for her autistic child or a teenager facing a school expulsion hearing, it is important for advocates to constantly explore and question the way our laws or policies either help or hinder.

Today there are real tensions between a school administrator’s need to maintain a safe environment in her school and a delinquent teenager’s right to access a meaningful educational program. There are serious and increasing economic restraints on communities and school districts for the provision of legally mandated special education and mental health services to children. Too often, the stake holders see themselves as adversarial, but all claim to be motivated by the “best interests” of children.

So, after so many years of being in the legal trenches, it is time to add my voice to the discussion.  My goal is to explore reality-based problem solving mechanisms in the areas of special education, school law and juvenile law. Fundamentally, the role of lawyers practicing in these areas should be that of a problem solver. Within that role I will draw from my experience, the resources of the law, and the good ideas of others to help make a difference. Here we go.