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Special education system stacked against parents

Decisions in legal appeals made by parents on behalf of their children with disabilities against Maryland School Districts.
Decisions in legal appeals made by parents on behalf of their children with disabilities against Maryland School Districts. (Christine Zhang / Baltimore Sun Graphic | Sources: Maryland State Department of Education, Project HEAL)

A recent story by Sun reporter Talia Richman exposed how parents of students with disabilities almost never win their legal appeals against Maryland school districts.

That’s true and appalling. But it’s no surprise. In fact, it is only the tip of the iceberg of how the entire system of special education is stacked against parents.

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It’s not supposed to be that way. A bedrock principle of the federal law that governs special education is that parents should be collaborative partners with educators in determining eligibility and service plans. The plans are determined at meetings of the school Individual Education Program (IEP) team that includes educators and parents.

But the legal provisions intended to protect parental rights usually turn out to be, in the words of experts, an “empty ritual.” For starters, lay parents are confronted by the technical jargon of instructional specialists, psychologists, speech and language pathologists and other evaluators and service providers. And IEP meetings frequently turn adversarial if the parent asks a lot of questions or expresses dissatisfaction.

Some members of school teams become defensive and hostile. The technical reports are not explained in ways that parents can understand. In contentious situations, the school IEP members hold pre-meeting sessions without parents and discuss information and options that are never put on the table later.

Team members and school officials tend to take criticisms of the process personally. They feel critics are insinuating that they don’t want what’s best or don’t do their best for every one of their students.

No, it’s not that. I know from my experience as an advocate in hundreds of IEP meetings that virtually all educators are deeply devoted to their students. But their hands are tied by limited budgets and lack of support. Teachers, social workers, speech and language pathologists and other providers don’t have the time (or receive the training and supervision) to provide the services that students need and are legally entitled to. Many times, a team member has said to me privately, sometimes with tears in her eyes: I know Johnny needs more but I will get in trouble if I say so.

Further, as the Sun article pointed out, many states have placed the burden of proof in legal appeals on the school rather than the parent. But not Maryland. The General Assembly has caved in to pressure from school districts that want to protect their upper hand. This not only tilts the judicial playing field against parents, it also means that — because schools recognize the appeal system is almost always in their corner — educators have less reason to be receptive to parents’ concerns at IEP meetings.

Take RBG’s word for it. In 2005, the Supreme Court ruled that states were not required to impose the burden of proof on schools, presuming that schools “are properly performing their difficult responsibility” under special education laws. However, in dissent, Justice Ruth Bader Ginsburg skewered that presumption. She cited the huge advantages that schools already command over information and expertise, and noted that “school districts striving to balance their budgets … will favor educational options that enable them to conserve resources.”

One consolation is that aggrieved parents have a more promising avenue than the legal appeals route. Parents can file complaints with the Maryland State Department of Education. MSDE not only investigates whether the rights of an individual student were violated but also whether the violation was evidence of a school- or system-wide pattern of wrongful practice.

In a recent well-publicized case in Oklahoma, a parent’s individual complaint led to the Tulsa school district being forced to reform much of its entire IEP process. And according to one national study, parents are more than twice as likely to receive favorable outcomes in state complaints than judicial appeals.

This is almost certainly true in Maryland. MSDE is generally regarded by advocates as being open-minded and fair in its complaint investigations and findings, and frequently mandates school-wide remedies.

So parents, complain on! And lobby too! The General Assembly should finally have the courage to place the burden of proof on schools where it belongs. And to get at the root of parents’ problems, the governor and legislators should act — beyond the past session’s meager down payment — on the Kirwan Commission recommendations for adequate funding for special education.

Kalman R. Hettleman, a member of the Kirwan Commission, is the author of “Mislabeled as Disabled: The Educational Abuse of Struggling Learners and How WE Can Fight It,” published this year by Radius Book Group. He can be reached at khettleman@gmail.com.

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