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Current Issues in Special Education Law

Without special education intervention at the earliest possible time in the educational life of a child, the student increases his or her odds of entering the school to prison pipeline, dropping out of school, living off SSI and, sadly, of living a nonproductive life that not only hurts the individual but which also puts a strain on the resources of governments.  These students can become a positive force in society given the appropriate services.  Our special children can grow up to become college students, parents, employees, businessmen and women as well as happy, productive citizens who contribute to our nation.  All it takes is some effort while the student is in school.

Special education is a process.  A student must first be identified by a parent or someone in the school system.   The Individuals with Disabilities Education Act 2004, a federal law, places  a “Child Find” obligation on all districts.  They must identify children with any type of disability from a mild hearing loss to a severe intellectual or physical disability.  Once a disability is suspected, the child must be assessed. Afterwards, an A.R.D. committee meets to discuss the provision of services in the least restrictive environment. And, if it were that straight forward and easy, I would not have a job in law and I could return to teaching (which I loved). 

Historically, the percentage of children with special needs is 13% - 15% of our student population.  Here in Texas, while accepting state and federal funds for educating these children, the Texas Education Agency has capped the number of students who can receive services at 8.5% and the Department of Education is investigating according to an report in the Houston Chronicle by Brian Rosenthal.  By ignoring a large part of the population (over 250,000 students) with special needs, Texas is further handicapping those students who so desperately need assistance during the early part of their educational careers.  So much harm can be prevented with early intervention. It was myopic of the State of Texas and TEA to only see the immediate impact of cutting special education dollars when the state had to trim a billion dollars from the budget.  The students suffer but so does Texas who will have to shoulder the burden of having adults living “off of” the government rather than contributing to our economic growth.  In order to address the issue of capping the percentage of students, districts should be required to locate the students who were not identified as having special needs and provide them with compensatory services and remedial education.  Funding is needed for advertising and outreach to inform the students and their parents of available services even if the student is now an adult.

Parents have the right to challenge services that are inappropriate through a request for a “Due Process Hearing”.  That process is, of and by itself, ominous.  The cards are stacked against the parents who have little access to the classroom or the school but who carry the burden of proving that the District is not providing the services the child requires.  Districts do not like to go through hearings to defend their programs or lack thereof.  In order to prevail at a “Due Process Hearing”, the parties must employ the testimony of experts.  Schools have access to all of their professional staff as expert witnesses.  Parents who have children with special needs seldom have the financial resources to hire experts and that one fact is often the reason that parents lose at due process.  The parents could really use a fund or a bank of professionals from whom they could choose an expert to increase the odds of prevailing when the child is truly not receiving a free and appropriate public education.  In almost 85% of “Due Process Hearings”, the school prevails and challenging the school, in any way, can result in illegal retaliation.

One of the ways that Districts have recently adopted to keep complaining parents from knowing what is happening within the school is the issuance of a Criminal Trespass Warning (CTW).  A CTW is an instrument that limits parental access to the school.  Parents have been prevented from entering any building within a school district through the issuance of a CTW.  Sometimes, they are just prevented from entering the school where their child with special needs attends classes.   A CTW has prevented parents from voting.  One has prevented parents from attending their child’s A.R.D. meetings.  Most importantly, a CTW prevents parents from full participation in the education of their child. 

In order to prevent the indiscriminate use of CTWs, each district should adopt a policy.  That policy should be prominently displayed in the office of every school telling parents that if they are disruptive or are perceived as dangerous to anyone within the school, they can be issued a CTW that could prevent the parent from entering the school grounds.  Then, the sign should indicate where to find the information for an appeal.  The same information should be in the student handbook.  Beyond that, there should be an appeal policy and a means of challenging the CTW through the Texas Education Agency or a committee composed of parents, people from the community, teachers and administrators to hear a final appeal if the matter is not remedied through the district appeal process.  Most importantly, the districts must make it clear that the parent can attend A.R.D. meetings, parent-teacher meetings and other functions that allow the parent to participate in his child’s education.  Moreover, CTWs must only be issued when the parent is disruptive to the school environment or poses a threat to someone in the school. 

[I would also take voting out of the schools.  With all of the school shootings and other concerns we face with dangerous individuals entering the schools, we need to be protecting our children.]

My final concern was about non-attorney advocates.  A parent has the right to have representation at an A.R.D. meeting to guide them through the process.  A non-attorney advocate in Texas requires no education or training.  There are no laws written that limit the authority of advocates, that list the scope of their job or that deliver any consequences for poor judgment or mistakes.  Non-attorney advocates enter into contracts (settlement agreements) on behalf of their clients and they are sometimes paid by the district.  In the last legislative session, non-attorney advocates were given the right to request and defend a “Due Process Hearing”.  While many advocates have outstanding skills and we need to hold districts accountable for providing appropriate services, we cannot, in good conscience, give advocates carte blanche to do whatever they wish to do.  Without guidelines and consequences, non-attorney advocates have no framework from which to provide services and their representation can seriously denigrate the education of a child with disabilities. 

All that needs to be done to rectify this situation is to develop guidelines, including training, for all advocates in Texas, and to provide consequences for mistakes and misbehavior.  Just as attorneys have ethical responsibilities, so should those advocates who are impacting the education, as well as the lives, of our most vulnerable citizens.  The easiest approach would be to provide a certification program for all non-attorney advocates allowing for a test for certification to “grandfather-in” advocates who have the knowledge and experience.  Consequences can mirror attorney ethics—short and long suspensions of their certifications (which, I am sure, the schools will request to see), financial sanctions and permanent loss of certification for serious errors or criminal acts.  (In my opinion, non-attorney advocates should work under the auspices of a licensed attorney but many of my colleagues would undoubtedly disagree.) 

Thank you for taking the time to hear my concerns.  If there is anything I can do for you to help further the education of children with special needs, please feel free to call on me for assistance. 

Karen Dalglish Seal, Attorney at Law

202 East Park Avenue

San Antonio, TX 78212

Office: 210-226-8101

Facsimile:  210-226-8175

E-mail:  Karen@kseallaw.com

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