Introduction
I know the story. Your child is having issues in school and you suspect it’s not because s/he is “being bad.” You request an evaluation to see if s/he qualifies for an accommodation or special education services. The test takes awhile. Why does it take so long to get an evaluation? Then, you learn your child qualifies for special education services. What comes next? Then, you get your child’s Individualized Education Program, a.k.a. IEP. Why isn’t the school following it? You try to have meetings with the school, only to be met with obstinance. You walk in the meeting. You see a room full of people on the “school’s side.” Who is there for you? You feel overwhelmed and alone. I know the story because, as an attorney who represents children with disabilities, I’ve heard it too many times.
The ultimate purpose of this book is to empower parents (and anyone else working as an educational advocate) about how courts rule on education cases concerning children who have disabilities - intellectual, behavioral, or physical. I include specific points of reference so you can use this as a resource guide for your own situation. Statistically, most parents in a due process hearing represent themselves in these types of legal disputes. The one consistent comment I’ve heard is that by the time things become this contentious with the school district, they feel overwhelmed and uninformed.
By law, public schools are required to provide a free appropriate public education (FAPE). The issue is that there are extensive and complicated statutes governing children with disabilities. There are individualized education programs (IEPs) and 504 Service Agreements. Both are created for children with disabilities, but they are designed to address different areas of need. This short book sorts out your options, offers court cases as examples, and explains the steps you can take if you are not happy with the plans made for your child’s education.
As an attorney now in private practice, I spend part of each day answering telephone calls on questions from parents who are frustrated over what their school is or is not doing for their children, and concerned about what should be their next steps.
I left a District Attorney’s Office after seeing worst-case scenarios in juvenile court: when learning accommodations were not made, or plans were not implemented for children with disabilities. I realized that while these were similar stories told from different situations, the common thread in all of them was either IEP or 504 Service Agreement management. After some research and talking to colleagues, I decided to go into private practice to focus on representing children with disabilities. One major hurdle I quickly learned was the lack of information many parents and advocates have, including not knowing that their children even have legal rights when it comes to education. That is why I decided to write this book. It is meant to be a guide and a starting point.
While this cannot serve as legal advice, my goal is to help parents feel a little more empowered than before they read it. This guide is designed to get you past the basics by using real court case examples to show the practical side of how courts have ruled on familiar issues. In the end, the goal is to set your child up for educational success. This book is broken up into four steps that build on each other. There is a glossary at the end to help keep track of some of the terms parents may encounter in their journey, as well as full case citations.
To you and your child’s success!
Step One
What Is Child Find?
Child Find is a term of art that places a legal requirement on schools to identify, locate, and evaluate your child, but this process can also start with you, the parent. (Throughout the rest of this book, I use “parent” but I’m referring to parents, guardians, and educational advocates.)
As the parent, you know your child better than anyone else. If you see your infant son or daughter struggling to hold an object, you know whether the response will be frustration (throwing it down) or curiosity (picking it up each time it falls). You know this because you’ve been paying attention. This parental observation remains true for noticing developmental delays. I put Child Find as the first step for parents for a few reasons. You will know whether a behavior is typical or atypical. You’re with your child from the beginning, so you become a first line of defense. This places you in the best position to be proactive and address any potential developmental delays as early as possible.
Early diagnosis has been attributed to improving a child’s long-term educational success. Since your child may not see a teacher until three or four years of age, getting a diagnosis beforehand could reduce the number of interventions or aids your child may need during school-age years. A diagnosis before elementary school can be done by your pediatrician. Schedule an appointment and raise any concerns immediately. Give detailed information explaining exactly what you notice so the pediatrician can either run the appropriate test(s) or direct you to the right specialist.
If your child has already started school—no matter the age—the school is required to conduct a Child Find. The federal Individuals with Disabilities Education Act (IDEA) includes regulations (34 C.F.R. Section 300.111(a)(1)(i)) that require schools to have policies and procedures in place to ensure that all children “who are in need of special education and related services, are identified, located, and evaluated.”
Child Find applies to all children residing in any state, even if that child is homeless or is a ward of the state. It also applies to children who are suspected of having a disability or might need special education, even if the child is advancing from grade to grade. The regulatory requirements affect schools because states receive federal funds to assist with paying for education. Schools, therefore, receive federal funds, through their respective state governments, to pay for special education expenses. These expenses include paying teachers, teacher aides, and supplemental materials necessary for instruction. As a result of receiving federal funding, the schools must comply with the federal regulations.
Child Find is significant. Even if you don’t suspect a disability in your child, a teacher is legally required to notice it. Once again, the earlier the diagnosis and knowing whether there is a disability, the sooner you can help your child. It’s also important to remember that your child may still have a disability even if advancing from one grade to the next. Early diagnosis and an IEP can set your child up to maximize potential, not just get by.
Case Example (Child Find)
Montuori v. District of Columbia School District
A.M. (minors’ names are disguised in court cases) was diagnosed with attention-deficit/hyperactivity disorder (ADHD). A.M. had been under a 504 Service Agreement since elementary school. (This agreement details how a school will provide the necessary supports and remove any barriers so a child can access the general curriculum
with their classmates). When A.M. entered middle school, another psychological reevaluation was conducted, and another 504 Service Agreement was implemented. The school wanted to offer a 504 Service Agreement, and conduct a Functional Behavior Assessment (FBA) to address A.M.’s escalating behavioral issues. However, the parents wanted an IEP, so they filed a due process complaint (an IEP allows for additional specialized instruction
outside the regular curriculum).
The issue before the court was: Had the school district violated its Child Find obligations by not also evaluating A.M. for an IEP? The court found for the parents, that the school had failed to timely evaluate A.M. for an IEP, thus constituting a Child Find violation. Why?
The answer is because Child Find is an “affirmative obligation,” meaning it was a requirement of the school to identify A.M. as a child who
may be in need of special education services, and thus should have sent a Permission to Evaluate form to the parents to have the school conduct an evaluation. The school district believed it was relieved of its Child Find obligations when the parents and school officials agreed at a school meeting to proceed with a 504 Plan in lieu of initiating IDEA services. However, the court noted that even if A.M.’s parents had been content with having only the 504 plan, the school should have sought permission from the parents to do the required testing but failed to do so.
Thought Question:
- Do you think your school has violated its Child Find obligations with your child? If so, what evidence do you have? For young children, remember to distinguish between behaviors consistent with other children the same age and behaviors consistent with the disability. These are the factors a court will consider and the school district will use in its defense.
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Case Example (IDEA and “child with a disability”)
Durbrow v. Cobb County School District
C.D. was diagnosed with ADHD in third grade. Nevertheless, he advanced from elementary school through to his junior year of high school, and excelled in advanced academic programs and standardized tests. He was admitted into a select magnet school with accelerated courses, where he received accommodations through a 504 plan. His junior-year teachers dismissed the parents’ suggestion that C.D. also needed an IEP. Two teachers even wrote him letters of recommendation to attend the Massachusetts Institute of Technology. However, C.D.’s academic performance plummeted his senior year. He amassed late and incomplete work throughout the year, which culminated in five failing grades. The school continued to change his 504 plan with different accommodations, but his grades continued to decline. His parents requested that the school begin the process to evaluate their son for an IEP, and said that C.D. was IDEA-eligible based on his failure to submit his assignments on time. The special education supervisor also believed C.D.’s incomplete work was due to his ADHD, but C.D. himself and his senior-year teachers attributed the failing grades to his procrastination. His parents filed a due process hearing complaint alleging the school district failed in their Child Find obligations. The issue before the court was: Did the IDEA compel the public school district to provide special education to C.D., a student with ADHD, who displayed vast academic potential but struggled to complete his work?
Under the IDEA, a child with a disability is defined as someone with “intellectual disabilities…other health impairments, or specific learning disabilities; and who, by reason thereof, needs special education and related services.” One such health impairment is ADHD that adversely affects a child’s educational performance. Therefore, to establish entitlement to a FAPE, a student with ADHD must show that the chronic condition adversely affects academic performance, and thus special education is needed.
The court found the school district did not deprive C.D. of a FAPE because he did not need special education and, therefore, did not qualify as a child with a disability. Additionally, the school district did not breach its Child Find obligations because the IDEA requires schools to identify, locate, and evaluate only children with disabilities. The court concluded C.D. was not a child with a disability because he did not, on account of ADHD, require special education; instead, he met or exceeded academic expectations. He had been admitted to a selective magnet program based on his achievements in math and science and had demonstrated college readiness by excelling on the PSAT. Until his senior year, he passed all of his classes in an advanced academic program, including Honors and Advanced Placement courses. Additionally, C.D.’s teachers testified that special education was inappropriate for him, and none attributed his poor grades to low ability. Although C.D. had difficulty with time management and organization, so too did many of his classmates, particularly at the demanding magnet program.
Thought Questions:
Two key questions to consider if you notice failing grades:
- When did your child’s grades start declining?
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- What other reasons could cause your child’s grades to decline other than the disability?
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Answers to this second question will allow you to take a broader view of issues that you may have overlooked or forgotten, and will also allow you to anticipate the school’s response.
