Just the Facts, Ma’am; Just the Facts

Today I’m going to talk to you about special education law, specifically special education case law. Case law isn’t all that interesting, however it is much less boring than I previously believed it to be. The trick, for me, has been in learning the language that lawyers employ to make their legal code impenetrable. Once you’ve mastered the vocabulary used by these scoundrels, which they do NOT wish you to do, then you’re more than halfway home. If, as an advocate, you have acquired the ability to read published cases and understand exactly what a judge has already ruled regarding a certain school district providing SE services to a certain handicapped child, then you’ve significantly upped your advocacy game.

All of us have many lessons to learn in the advocacy arena. Short of going to law school yourself, you’re going to have to adopt strategies employed by inmates who hang out in the law library and turn themselves into jailhouse lawyers. Lesson # 1 for today: the ability to recite the provisions of IDEA isn’t going to take you nearly as far as you hope to go. You have to be able to reference specific cases and provide details about what federal and state judges have written in response to some other parents’ due process claims. You read and internalize case law, particularly 5th circuit case law, in order to be able to quote what some judge said about the educational entitlement of some other child in circumstances similar to the situation of the child for whom you advocate.

Here in Texas whenever possible we reference case law from the 5th Circuit because we are in the 5th Circuit. I have this nifty little shortcut: See Dorene Philpot’s website where you will find a list of 40 relevant 5th circuit cases all summarized nice and neat for you. I just did that very thing; now I’m using her list of cases as I write the argument for Aleczander’s next due process. Because I live in San Antonio and the school district that I’m advocating against is located in San Antonio, one of the cases that I plan to cite is a 1986 decision that went against Alamo Heights. Here is Dorene’s summary of that case:

Alamo Heights Indep. School Dist. V. State Bd. of Educ., 790 F2d 1153 (5th Cir 1986) 
When reviewing whether parents shall be reimbursed for private placement when the school has failed to offer a child FAPE, the conduct of both parties must be reviewed to determine whether relief is appropriate. While the parents’ placement does not have to be an exact and proper placement under IDEA, the placement must have met the child’s needs and provided educational benefit.

My case has some significant similarities to the AHISD v. State Board of Education one in that Aleczander was removed from the school district at the end of first grade. His parents placed him in a private school at their own expense and can prove that he subsequently received educational benefit. For one year, I requested proportionate share speech, OT, PT, and Dyslexia services from ECISD, the majority of which was denied because he wasn’t “on the list for proportionate share services that year.” That was Aleczander’s 2nd grade. Bearing in mind that Aleczander will be in 6th grade next year, his 2nd grade year happened too long ago for us to expect to legally obtain compensatory benefits from ECISD due to Texas’ 2 year statute of limitations. However the information about his functional and academic progress during 2nd grade at Salem Sayers is relevant today as part of his educational history and as it relates to his educational need for services today.

Because I now, belatedly, have some admittedly cursory but still solid knowledge of case law, I am able to use specific cases to support my contention that ECISD has gotten some very bad advice from their SE lawyers. Violations that I plan to bring to the next TEA DP include:

  1. Failure to allow the parents to meaningfully participate in the IEP development process,
  2. Failure of proper personnel to be present during the case conference committee meetings,
  3. Predetermining placement and services before the case conference committee meeting,
  4. Failure to conduct necessary evaluations of the child,
  5. Failure to convene a case conference committee meeting,
  6. Failure by the school to notice that the child was one in need of special education or services, despite evidence that the child was struggling academically or behaviorally,
  7. Failure to provide records within 45 days when requested by parents,
  8. Failure to devise an appropriate IEP based on the child’s individual needs.

I always suspected but now can make a case to a DP hearing officer that taking a child out of SE as parents withdraw the child from the school district does not constitute legal evidence that the parent has given up their child’s right to a FAPE. Regardless of how many times Eric Rodriguez says this, regardless of how many affidavits the parent signs, saying this is so doesn’t make it so. You and I can search our little hearts out through IDEA 2004 and 5th circuit case law and Supreme Court rulings and we’re not going to find any support for the district’s position that a parent taking their child out of special education equates to the child no longer being entitled to a FAPE. This remains true regardless of how many times Eric Rodriguez advises Nina Pugh, SE Director, that Aleczander isn’t entitled to a FAPE, just as a matter of law. My job as Aleczander’s advocate is to point this out to whoever the next DP hearing officer assigned to us happens to be.

During 3rd grade, Aleczander continued at the private school, the difference in my ability to advocate for him being that the summer before 3rd grade, his parents signed a confidential mediation agreement with ECISD. Lesson learned here, mediations are only confidential as far as the parents are concerned. The District will discuss what they want to about the agreement in front of God and everybody else if you have the effrontery to ask them to re-evalute your child and provide a FAPE. It wasn’t until we filed a new DP against the district in August 2019 that I learned from that hearing officer, Annie Lockwood, that TEA has no authority to consider any of the terms in any negotiated mediation agreement unless the parents are suing the District for non-compliance. I also learned from a second TEA employee that the only way to get the District to mediate with you is to file DPs. Lesson #2: don’t waste your time with SE Complaints or Mediation requests, file the DP to get yourself back into the school district’s front door. Otherwise you’ll do as I did and waste two years asking the District to conduct a SE Evaluation, in Aleczander’s case a REED as appropriate as part of updated FIE, and then to convene an ARD that would update their provision of services as to the child’s specific needs related to obtaining a FAPE. Note, now we’re talking about the 17-18 and the 18-19 school years. My understanding of the law is that, because we filed a new DP in August 2019, a DP we dropped without prejudice when Annie Lockwood resigned, we can go back to those 2 school years when we refile our DP, including the violations that have accrued during the 2019-2020 school year. It is important for you to realize that in our case the district continues to refuse to propose an IEP for Aleczander as of May 25, 2020, despite convening a REED EVALUATION meeting on August 14, 2019 and that we have a DP filed in August 2019 that we dropped without prejudice to allow the district to conclude the FIE that it began on August 14, 2019 and purpose an IEP. They have not done so, and the school year has ended. This case has become unbelievably strung out and extended, hopefully yours will proceed much more smoothly.

When you write up your DP, state the violation/s alleged (see the list of 8 violations above that I believe I can successfully argue for Aleczander), one or more of the evidence exhibits that you will bring to the table (I’ve got the 8.14.19 REED that wasn’t a REED audio and transcript, the emails from the SE Director and Lawyer for the past two years denying Aleczander a FAPE, the 14 different assessment reports that we discussed at the REED which were not included in the 8.14.19 REED report, the list goes on) and at least one case law reference that supports the righteousness of each of your alleged violation assertions. I advise you to think in terms of facts, not opinions. You don’t need to tell the hearing officer that what the district has done is ridiculous, outrageous and wrong, you have to show specifically what has been done to this child and provide evidence that backs up your claim that the district’s direct actions have denied your child his civil rights. Use the old Joe Friday line: “just the facts, ma’am, just the facts” to guide you as to what you write on the DP request form.

In terms of my chronology as Aleczander’s advocate, when we filed the first DP against ECISD,  I’d been on the case for 1 and 1/2 years, the 2016-17 school year had just ended and Aleczander had finished 2nd grade. (see 2nd grade assessment/progress report May 2017 by Janis Arnold, TX Registered Professional Ed Diag # 1688.) Shout out here to Melissa Urtiaga, his excellent teacher at Salem Sayers who also served as his 3rd grade teacher.

For the next two years (2017-18 and 2018-19), I continued to request a REED/EVALUATION from the district as the money provided under the agreement was not sufficient to provide Aleczander with a FAPE. During those two years, ECISD denied the REED/EVALUATION, in direct violation of federal and state law, the SE Director repeatedly writing: Aleczander was removed from SE by the parent and is no longer entitled to a FAPE.

Per the W-G website:
Walsh Gallegos offers annual retainer agreements to school districts and charter schools that provide coverage for both general education and special education law. Our retainer programs are designed so that district representatives, such as the board president, superintendent and the special education director (or their designees), will not hesitate to seek advice from the attorneys when in doubt about a legal issue.

You might notice that the law firm doesn’t advertise that its lawyers will attend IEP meetings any time a parent shows up with an advocate or that these lawyers will weigh in frequently on educational assessment and service issues as they relate to the specific needs of the handicapped child. Nor does this law firm advertise that W-G attorneys bill $350 / hour and round their hours up when they attend these SE meetings. I wonder how many ECISD taxpayers even know that their school board authorized payments such as the $350 X 5 hours = $1,750.00 fee that Eric Rodriguez almost certainly billed for the 8.14.19 REED/EVALUATION meeting where Eva and I listened to him, the SE Director, and the SE LSSP pontificate about how the district literally had no way of knowing if Aleczander might possibly have any handicapping conditions that would qualify him for SE since he’d been removed from SE as a condition of the mediation agreement parents had signed two year earlier.

Yeah, the agreement was confidential and the district wrote more than one threatening letter to me stating that if I continued to ask for a SE meeting for Aleczander they were going to file a counter suit demanding that I pay the district’s legal fees. But the terms of the mediation agreement weren’t confidential any longer once Eva and I arrived in that REED that wasn’t a REED meeting. In addition to the parent, Ms. Pugh had invited 12 other ECISD staff members, only two of whom had any actual knowledge of Aleczander and they all got an earful about the confidential terms of the mediation agreement.

You know what the law say about the members of the IEP team for a REED/EVALUATION meeting? It says that all members must have knowledge of Aleczander, his medical or educational history, and/or the educational ramifications of the child’s handicapping condition. At the 8.14.19 REED, the OT and PT fell into the knows the child and his handicapping condition and educational needs category as both had previously evaluated and provided services to Aleczander. There might be a case to be made for the Sinclair dyslexia therapist and speech therapist to be present at Aleczander’s REED as both were in a position to talk about his assessment information and the services they would suggest to address the handicapping conditions of dyslexia and speech impaired previously diagnosed by ECISD.

Certainly a case could be made for including the Sinclair principal on the REED/EVALUATION meeting guest list, if the meeting had actually been a REED. However, as Ms. Pugh and Mr. Rodriguez stated often and for the record, this meeting was not a REED nor was it an ARD, as no decisions could be made, as a matter of law, because Aleczander was not entitled to a FAPE.

On 8.14.19 Aleczander had a current ECISD OHI disability report signed by Dr. Jerry Tomasovic, pediatric neurologist, the significance of which neither the ECISD LSSP nor the ECISD SE Director understood even after the ECISD SE lawyer cottoned to the fact that the district already had significant documentation of the congenital medical condition, developmental coordination disorder, that rendered Aleczander SE eligible. It saddens me to write that the state of SE administration and assessment has deteriorated in the ECISD school district under the present superintendent and school board to an alarming state. Listening and re-listening to the audio of the 8.14.19 meeting informs me that neither Nina Pugh, ECISD SE Director nor Jennifer Baker, ECISD LSSP, understand the meaning or significance of the word congenital. Not sure how this is possible, given that both are educated women, however I can’t come up with any other reason to explain why it was Eric R, not Nina P or Jennifer B who understood that the district’s position that it had no knowledge of Aleczander’s handicapping condition was as indefensible as it was incorrect.

My guess is that Eric was communicating with both of those women on the computers each of them remained glued to during that meeting, and when he couldn’t get either one of them to weigh in on Aleczander’s handicapping condition, he had no choice but to do so himself. However, the fact remains that Mr. Rodriguez is a trained lawyer, not a trained SE teacher or LSSP. He shouldn’t have been present at that meeting other than to advise his client on legal matters. What he can clearly be heard to do is to discuss specific handicapping conditions and to make judgments about what services can and cannot be provided in light of that information. This is clearly not only a violation of Aleczander’s rights, but denies the parents the right to participate meaningfully in Aleczander’s educational program.

I plan to use Alvin ISD v. A.D, 2007 as case law in support of this procedural violation committed by ECISD. Specifically, the court found the teachers’ information to be more credible than the testimony of the doctors, because the medical information was second hand. I will argue that SE Lawyers have no knowledge of developmental dyspraxia nor do they have insight into needed educational interventions for remediation, so Eric Rodriguez erred when he ran the meeting and again when he failed to allow teachers and therapists to consider assessment information brought forth by the parents or to discuss programs available at Sinclair that might be used to treat Aleczander’s developmental coordination disorder.

Alvin ISD v. A.D., 503 F. 3d 378 (5th Cir. 2007). 
Court said that school district can consider academic, behavioral and social progress in determining whether an educational need for special education and related services exists. “First, [the student’s] passing grades and success on the [statewide assessment] demonstrate academic progress,” Judge Benavides wrote. Second, [the student’s] teachers testified that, despite his behavioral issues, he did not need special education and was achieving social success in school.” Like the District Court, the 5th Circuit found the testimony of the student’s teachers to be more credible than the testimony of the student’s physicians, who based their opinions on secondhand information rather than firsthand observations.”

In Cypress-Fairbanks Indep. Sch. Dist. V. Michael F., 118 F.3d 245 (5th Cir. 1997), the court writes that there are four factors that can aid in evaluating whether a student is receiving access to instruction and related services which are individually designed to provide educational benefit:

  1. whether there is an individualized program based on the student’s assessment and performance;
  2. whether the individualized program is administered in the LRE;
  3. whether the services are provided in a coordinated and collaborative manner by the key stakeholders; and
  4. whether positive benefits are demonstrated both academically and non-academically.

In the CY-FAIR case, the judge went on to write: necessary ingredients of FAPE are coordination and collaboration between parties. The party attacking the appropriateness of an IEP established by a local educational agency bears the burden of showing why the IEP and resulting placement were inappropriate under IDEA. Thus, plaintiffs have the burden of showing that defendants did not comply with the procedures set forth in the Act, or that even if the procedures were proper, the challenged IEPs were not reasonably calculated to provide meaningful educational benefit. In Aleczander’s case as the district has never once put forth IEPs that contain accurate present levels of performance, nor have any of their goals been based upon actual levels of current functioning, nor have the goals and objectives been measurable; ergo, my argument is that Aleczander’s IEPs have not been reasonably calculated to provide meaningful equational benefit.

I will argue that, for the entirety of the 2019-2020 school year the ECISD has failed to propose an IEP based upon Aleczander’s assessment and performance information compiled by the district at the 8.14.19 REED/EVALUATION meeting. One more case to make my point, this a 7th Circuit one that was ultimately taken up and ruled on by the US Supreme Court. I’ll leave you with the summary I found on Dorene Philpot’s website:

Forest Grove v. T.D., 129 S. Ct. 987 08-305, 109 LRP 13476 (2009) The Supreme Court of the United States held that the IDEA authorizes reimbursement for private special-education services when a public school fails to provide a FAPE and the private school placement is appropriate, regardless of whether the child previously received services through the public school. (Pp. 6–17.) The court said: “Moreover, when a child requires special-education services, a school district’s failure to propose an IEP of any kind is at least as serious a violation of its responsibilities under IDEA as a failure to provide an adequate IEP.” Id. at 8. The court noted, “we conclude that IDEA authorizes reimbursement for the cost of private special education services when a school district fails to provide a FAPE and the private-school placement is appropriate, regardless of whether the child previously received special education or related services through the public school.” Id at 19. Prior to this, there was a split among the federal court circuits as to whether 20 U.S.C. § 1412(a)(10)(C) created a categorical bar to reimbursement of private school tuition for students who have not ‘previously received special education and related services. In a 6-3 decision, the Supreme Court held that: This dispute “… differs from Burlington and Carter in that it concerns not the adequacy of a proposed IEP but the School District’s failure to provide an IEP at all . . . moreover, when a child requires special education services, a school district’s failure to propose an IEP of any kind is at least as serious a violation of its responsibilities under IDEA as a failure to provide an adequate IEP.” “The District’s position similarly conflicts with IDEA’s ‘Child find’ requirement . . . [requiring States] .. to identify, locate, and evaluate all children with disabilities’ to ensure that they receive needed special education services.” “Indeed, by immunizing a school district’s refusal to find a child eligible for special education services no matter how compelling the child’s need, the School District’s interpretation [of the statute] would produce a rule bordering on the irrational.” This would “leave parents without relief in the more egregious situation in which the school district unreasonably denies a child access to such services altogether.

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