Holding the Torch

SPECIAL NEEDS CHILDREN ARE THE MOST VULNERABLE TO BULLYING.

Recent tragic press reports have again highlighted the frightening and dangerous consequences of bullying of children in our schools.  The suicide of a Massachusetts 15 year old  has resulted in potential felony charges against students and others for their contributory actions and a call for anti-bullying legislation in that State.  Every day in almost every school there are children who are exposed to real threats of bullying.  Children with disabilities are often the most vulnerable.

In October 2009, the Bureau of Justice Statistics released its report of Crimes Against People with Disabilities, 2007.  This report confirms what many parents and advocates know from their own experiences – persons with disabilities have a much greater chance of being the victims of crime than others.  One specific finding shows that “persons with a cognitive functioning disability had a higher risk of violent victimization than persons with any other type of disability”.   We often review cases of children with autism who are not able to easily recognize social cues that make them easy targets for bullying by aggressive peers.  When these situations are not recognized and addressed, the results can be very serious.

Beyond the call for anti-bullying legislation, parents, educators and advocates need to be vigilant regarding the problem of bullying of all children, but particularly children with disabilities.  Special needs children may not always be able to explain the causes of the frustration they feel about school social situations.  A child’s growing school phobia is an important symptom and needs close and objective scrutiny. When a child with autism is disciplined for uncharacteristic reactive behavior against peers or teachers, it warrants an inquiry into the root causes of this behavior.  Close communication and coordination between educators and parents is essential.  Telling parents that “the school is handling it” and that information exchange is impossible due to confidentiality concerns is inadequate and not helpful.  Certainly confidentiality is important, but so is safety and enough appropriate information needs to be shared to prevent the bullying of children.

The problem of bullying of special needs children has been with us for a long time.  It is as personal as each of the individual stories of these children.  The solutions require attention, diligence and a common understanding of how these children are uniquely vulnerable.

WHAT DOES WINNING SPECIAL EDUCATION DISPUTES REALLY MEAN?

Sometimes I am asked how often we “win” special education cases against school districts.  Often the person asking this question is a parent who is completely frustrated by a long and difficult history of unresolved disputes with school officials.  It seems like a simple question, but it’s not.  The answer is unique to each case.

The fact is that most special education disputes are successfully resolved if there is focused and assertive advocacy.  “Winning” is making significant and sustainable changes that help children learn in the least restrictive environment.  Achieving this in complex cases after years of disappointment and distrust between the parties is no easy task.  Under the law there are numerous dispute resolution mechanisms which include complaints filed with the Department of Education, mediation and formal due process litigation.  Each is different and used in varying situations, but the results should always be measured by the degree a child’s educational experience is actually improved.  The fact is that most cases can and do settle.  Achieving that result requires a combination of thorough preparation, a realistic and defensible position and expert negotiation skills.
 
Winning really means empowering and guiding parents to continue the advocacy for their children.  In special education cases, victory is not really about a winner and loser that leave the dispute just waiting for the next round.   It means resolving a dispute with a viable result that builds in sustainable cooperation between parents and teachers.

POOR SCHOOL DISTRICTS ARE THE BIG LOSERS IN THE VIRGINIA BUDGET CUTS

When all is said and done, at-risk children in Virginia’s poorest school districts are the big losers.  We are now fully entrenched in “opportunity by geography”.  In his recent column in the Washington Post, Robert McCartney notes that through the budget cuts “Richmond stood to lose $587 per pupil (nearly 10%) while Fairfax was to gain $173 per student” under the proposed House of Delegates plan.  No matter what the final numbers are, the state’s urban and rural school districts will suffer the most.  Within these districts, poor children from at-risk families can be easily lost.
 
In addition to basic housing and food, education may be the single most important factor contributing to a person’s ability to function in our society.  Our leaders keep telling us how our citizens need to do “more with less”.  Well, for poor children we are in a situation where we need to do “more with far less than adequate”.

By the time you read this posting, the Virginia General Assembly will have finished its dismal task with the budget.  We need to look forward to creative and aggressive advocacy strategies to defend the legal and social entitlements of the poor and disabled.  In spite of the current climate of apparent insensitivity by government leadership for the most vulnerable citizens, there is hope.   In its history, Virginia has also seen times of courageous leadership that transcends personal political gain for the common good.  The fight for basic civil and education rights will now go right back to the neighborhoods, school districts and court houses where it often starts and ends for children at risk. 

VIRGINIA DEPARTMENT OF EDUCATION PUBLISHES PARENTS GUIDE TO SPECIAL EDUCATION ONLINE

The Virginia Department of Education has recently posted a new publication for parents regarding rights and procedures for special education.  The Parents Guide to Special Education is an extremely useful guide to help parents understand the responsibilities of the school and the parents, the timelines for compliance and due process remedies. The current revised document is in English, but the Spanish version should be posted soon.
 
We are always looking for new resources that help parents participate as active collaborators in their children’s education.  This recent publication from the DOE is very welcome.

IN THE FACE OF SERIOUS BUDGET CUTS IN EDUCATION AND MENTAL HEALTH SERVICES FOR CHILDREN, ADVOCATES NEED TO FIND CREATIVE WAYS TO COORDINATE THEIR EFFORTS

Every day now we see new headlines describing the unprecedented cuts that will be made in education and mental health services that will effect at risk children and families.  Recent announcements by the Virginia Education Association complain that the education cuts proposed by Governor McDonnell include nearly $731 million from the public schools and this will contribute to a loss of about 28,429 jobs.  Such numbers should shock everyone interested in the education and welfare of our children.  Once the axe falls we all know that recovering this funding almost never happens.  Virginia appears poised to enter a “race to the bottom” for options available to the most vulnerable of our citizens.

Lobbying our legislators is important and should continue, but now is the time to focus on supporting fellow advocates that deal directly and daily with the people who need help.  Lawyers, physicians, mental health providers and educators need to find new and creative ways to talk to each other easily. They need sustainable mechanisms to share ideas and information needed to solve real case problems.  This is more than attending occasional seminars.  The use of interdisciplinary computer list serves dedicated to sharing information and advice is just one way to keep advocates connected.
 
So, in addition to the fight to slow the “race to the bottom”, let’s take time to talk to each other about the basics of tactical problem solving for the people who are being left behind.

WHEN IEP MEETINGS GO NOWHERE, TAKE A BREAK AND GET FOCUSED.

Almost every week I hear from frustrated parents who tell me about feeling completely worn out by marathon IEP meetings that seem to go nowhere.  Usually there are a number of points of disagreement and a pervasive feeling of “us against them”.  Often parents report that they feel marginalized or that the observations of private service providers are ignored by school officials.  The formulation of meaningful goals and objectives for their child’s IEP is impossible in this continuing battle of wills.  The solutions to this problem can be complex and will ultimately be determined by the facts of each case, but from our experience there are some common techniques to address this type of stalemate.
 
In an IEP meeting when it feels like things are going nowhere, trust your instincts- it is going nowhere.  First, identify the stalemate for the group and don’t continue arguments that just foster an adversarial tone.  Take a break and/or adjourn the meeting to refocus attention on the primary points of disagreement.  When there is a disagreement about the nature and scope of a child’s disability, it is almost impossible to have consensus for meaningful services, goals and objectives.  Try to resolve this diagnostic problem first.

Above all, step back and listen.  This is the hardest thing to do when there is ongoing disagreement, but without the ability to objectively consider the other side of the issue, resolution is impossible.  Without credibility one cannot be persuasive.

In long term complex cases, we sometimes advise clients to stop the meetings until we can help examine the issues, evaluate claims and remedies and develop a roadmap.  Without this process, cases continue to be mired in endless meetings that only end when “somebody gives up”.  This is not the way to obtain a positive and sustainable IEP process.  With refocus and discipline, there is a better way.

THINGS THAT WORK: THE NEW IEP APPLICATION FOR THE iPHONE

In my practice as a special education attorney, I am always hearing parents talk about feeling overwhelmed in school IEP meetings.  Sometimes there is short notice before the meeting and parents feel unprepared for discussions about requested changes for their child’s IEP.  Now there is a great new tool for parents and educators to help navigate through the IEP process.

 Last week the Parent Educational and Advocacy Training Center (PEATC) released the IEP application for iPhones.  This free application easily scrolls through all of the legally required elements for the development of the IEP.  There are even references to the controlling federal regulations imbedded in the application.  Users are able to make notes as they move through the IEP process in English or Spanish.  This is an innovative tool that will clearly help empower parents to improve participation in IEP meetings.  To see a demonstration go to the PEATC Press Kit for the launch of the IEP application.   This is something that works!

THE SAFETY OF CHILDREN DETAINED IN VIRGINIA FACILITIES IS AT RISK.

On January 11 theRichmond Times Dispatch published an article by Lovisa Stannow and Melissa Cortez Goemann about a disturbing report from the Bureau of Justice Statistics that revealed the extent of sexual abuse of youth confined in juvenile detention facilities.  The report states that 12.1% of children confined in US facilities reported sexual abuse within the last year.  Three of the facilities operated by the Virginia Department of Juvenile Justice reported rates over 20%.   At the Culpeper Juvenile Correctional Center, 30% of the children reported abuse by other inmates or staff within the past year.  These are shocking statistics and demand immediate attention by advocates and legislators in Virginia.

The circumstances described in this article are serious but preventable.  Separating vulnerable juvenile offenders from potential predators in correctional facilities requires a renewed commitment to staff training and mandatory procedures to make the safety of juvenile inmates a priority.  The Prison Rape Elimination Act of 2003 requires standards for policies and practices to prevent sexual abuse and correctional facilities.  Last June, a federal commission mandated by this Act recommended standards for juvenile detention facilities.  The report by this expert panel addresses staff training, education for inmates, housing investigations, and medical and mental health care for the victims of sexual assault.  These standards should be adopted as soon as possible.  Virginia legislators should continue their effort to push for finalization of the federal regulations while doubling efforts to make sure that Virginia's juvenile correction facilities are safe for the children we send there for rehabilitation.

WHEN SHOULD I CONSIDER TAKING AN ADVOCATE TO A SCHOOL EXPULSION HEARING?

Parents are often concerned about whether to bring an advocate with them to a school expulsion hearing.  These are important proceedings and the outcomes can have significant impact on a child’s ability to continue appropriate school programming.  Expulsion means removal from public school for 365 days.  If a child is eligible for special education services or is facing criminal charges for school-related conduct there are additional due process considerations for school disciplinary hearings.

 Procedures for expulsion hearings sometimes differ between school districts, but there are some common requirements.  Only the local school board can expel a student although initial hearings are usually conducted by administrative staff to review facts and make recommendations to the school board.  In all expulsion proceedings students are entitled to be represented by an advocate and school administrators are accustomed to advocates coming to hearings.  To decide whether an advocate can help, it is often useful to get an initial consultation to review the particular circumstances and strategies.  Not every case requires professional advocacy in school expulsion hearings, but here are some suggested considerations when making this decision:

 • Be sure that the advocate has handled similar cases and has significant experience in school law and procedures. 

 • If working with an attorney, be sure that the lawyer is licensed to practice in your State.

 • If there are pending or expected criminal charges against the student, you should consult an attorney.  Often it is better to have      the lawyer represent the student in all school and court proceedings.

 • Special education eligibility and its impact on school discipline is a specialized area and the advocate should be experienced.

HONING ADVOCACY SKILLS FOR THE COMING YEAR

As we look forward to the coming year and projections for record budget cuts in education support services and juvenile justice programming, I would like to spend some time thinking about support for child advocates.  We are accustomed to not having enough resources; it comes with the territory.  Having enough resources is not part of our experience.  However, the essence of good advocacy is the effective application of limited time and energy for the benefit of one child at a time.  This is a combination of art, science and a little luck.
 
A child’s parent is always in a position to be the best advocate.  If the parent is not part of the problem, he can make the most impact for positive change.  Those of us, who are professional advocates, should remember this simple proposition.  Finding ways to empower a parent’s ability to productively advocate for her child should be a goal in every case.

 As child and family advocates we can:

 •  Listen to our opponents  to find ways for possible collaboration
 •  Be credible in our advocacy – learn the facts – admit weaknesses
 •  Be professional – it’s not about the fight – it’s about creating change
 •  Think outside of the box
 •  Take responsible positions and don’t be a push over – step up.

For the coming year, let’s take some time to figure out how we advocate and how we can support each other in the effort.  We’re going to need it.  Happy New Year!