Special Report: "District Shares Struggles with Special Education" - Blame the Parents Edition

November 28, 2008
By Jennifer Searcy
Founder/Director of Public Policy and Affairs
The Coalition for Positive Behavioral Interventions and Supports

We recently came across an article published on BerksMontNews.com on Tuesday, November 25, 2008 titled, "District Shares Struggles with Special Education."

The article was about a school board, for Exeter Township School District in Reading, Pennsylvania, that decided to approve 3 settlements the school district had wanted to enter into with parents and to publicize certain information about those agreements; namely, the dollar amounts of the agreements - and not much else.

Since nothing in policy dictates that this information cannot be made available to the public, the district apparently felt the need to "expose" to taxpayers how much of their money is being "wasted" ostensibly because of "frivolous parental demands."

Russell Diesinger, who is vice president of Exeter's board of school directors - who also voted "no" twice on the settlement agreements - was quoted as saying he "believe[s] these folks that pay their taxes and are concerned about where tax money goes need to be made aware of the demands that are put on these district [sic] by these special education suits."

He went on to add, "I will tell you these people do the best they can in very difficult situations meeting the needs of children of great need," Diesinger said. "Unfortunately, the courts don't view it that way. The courts look for whatever reason there is and we end up in these settlements. Unfortunately, it costs the taxpayers in this community a lot of money."

Superintendent Linton added, "These are federal laws passed down by the state and the state tells us what to do. We have very little control over these issues."

The district is making some pretty powerful statements, so let's just "roll them around" for a little bit and see if those claims have merit.

First, yes, Due Process hearings can be costly, in both time, money and resources, and EVERYONE should be concerned any time a Due Process Hearing is requested.

And second, yes, there ARE federal and state laws that specifically lay out a districts' obligations to educate children with disabilities.

Those are two undisputed facts.

But what about the other claims the district has made?

For one thing, this article doesn't indicate whether the DISTRICT brought these suits against the parents or if the parents felt they had no choice but to bring the suits against the district.

Because, believe it or not, districts DO frequently file for due process, usually to intimidate and/or bully the parents into doing something the district wants, but the parents don't want (for example, to agree to a placement the parents don't feel is appropriate, or to agree to discontinue therapies or services they'd really rather not).

And if a parent has filed, it's not likely over something frivolous - but something important, like denials for needed services or violations of federal and/or state laws. Because unlike what the district would like the public to believe, retaining an attorney is NOT cheap, and representing yourself pro se is NOT easy. I can assure you of that from experience.

You wouldn't know it from reading this article, though, and that's what districts like these count count on: a lack of general knowledge about special education law and the special education protections under those laws, including the right to Due Process whenever "disagreements" cannot be resolved through the IEP process for whatever reason.

But would the picture change ever-so-slightly when it's the district who is willfully spending tax dollars to take parents to Due Process?

Additionally, school districts traditionally keep attorneys ON RETAINER, at TAXPAYER EXPENSE, just in case a parent EVER has the audacity to challenge the district through due process, regardless if it is the school district or the parent making the due process hearing request, rather than HIRE ATTORNEYS ONLY WHEN ABSOLUTELY NECESSARY whenever a due process is requested.

In essence, tax dollars are ALREADY being wasted on attorney fees regardless of whether there is an active or pending due process case because the district is already paying to use an attorney.

The questions then are as follows:

"Does Exeter School District keep an attorney on retainer for Due Process cases? How much money has Exeter School district spent on attorneys' fees?"

If the district has ever used the services of an attorney for a due process hearing, then they are the ones "wasting taxpayer dollars"; they are the hypocrites. Because as we understand it, a school district doesn't HAVE to hire an attorney to represent it, rather it chooses to do so; a district can represent itself without legal counsel (pro se) just as PARENTS may represent themselves without legal counsel.

Who, then, are they to criticize parents - who must pay for their attorney fees generally out of their own pockets, not the districts or taxpayers, and in advance, that's if they can even AFFORD to hire an attorney - for "wasting taxpayer dollars" when the districts are the ones who must hire and/or retain the services of an attorney - using taxpayer dollars - for "potential" and/or realized services?

Next question:

"Has the district EVER requested due process and how many have they requested?" If they have made a request even ONCE, they are again being hypocritical because there are other avenues that could be explored, like facilitated IEP's and mediation, that cost the taxpayer NOTHING.

Another question:

"Is it fiscally more expensive to go through Due Process and/or agree to settlements than to provide the requested services, OR would it be more cost efficient and/or fiscally responsible (in time, money, and resources) to provide those requested services when first asked to do so?"

Attorneys fees are not cheap. How much is the district, and therefore taxpayers, paying those attorneys anyway? How much would it cost to provide the services the parents want? Which is less expensive - and less problematic - in the long run?

Next, "Why did the district want to settle ANY of these cases in the first place?"

"If the district is so innocent and did nothing wrong, but are simply victims of an "unfair system" which keeps them "enslaved" by "unreasonable laws" - why didn't they allow the due process to move forward?"

It's common knowledge in the educational field that Due Process cases are found traditionally more IN districts' favor and AGAINST parents' than vice versa in PA and in many other states.

Some hearing officers even have a history of ruling much more favorably for districts than others, depending upon the hearing officer and the districts' "connections"- which is why advocates like me are DEMANDING changes in how the Office for Dispute Resolution operates.

So why did the district want to settle?

Unless they weren't as innocent as they claimed.

If the hearing officer found in the district's favor (and, again, the odds were most likely IN their favor) it would most likely have been CHEAPER than agreeing to settle with the parents, because most settlement agreements are written in such a way that districts pay all attorneys fees, including those of the parents, in addition to the "payoff" amount.

Another question to consider:

"Who proposed those settlements in the first place?"

Usually it's not the parents' attorneys or the parents' themselves if represented pro se that ask for a settlement - but rather school districts in general traditionally offer to settle ONLY the cases they feel they CANNOT win - which is a strong indicator, if not outright admission, that they have violated federal and/or state laws in some way.

Districts also LIKE settlements because almost ALL of them are ONLY offered with the proviso that the parents must sign a confidentiality waiver which says THEY AGREE NOT TO TALK ABOUT THEIR SITUATION FURTHER.

This way districts can continue to violate the same laws or deny the same services to others that was the "CAUSE" of the Due Process in the first place.

Then the district plays Russian Roulette again until and/or if called out by another parent. And then they offer to settle again. And again. And again.

And they can get away with it. Because parents' voices are effectively stifled.

This is why districts are able to get away with abuse of their power - because if the parents say anything, then THEY have violated the settlement agreement and can/will lose everything they may have gained. Including the "settlement dollar amount."

I don't know about you, but I'm a little tired of the bias being perpetuated against us "overbearing parents who expect miracles from children who have 'no future', but to be a further drain on society's limited resources," yet the "poor district" has to legally "do everything they can for us" because federal and state laws SAY they have to, and they know they're providing "everything they can for us" because THEY SAID SO.

And we should be able to trust them, right? Because they'd NEVER lie to us, they'd never, ever, ever do anything illegal. Really, why would they? They're educators and the future of society, nay, the very world, is on their shoulders.

They're trying soooo hard, after all, giving their all, but our children are just virtually impossible to work with. And their parents? Well, they're even WORSE.

Not to mention these poor districts just don't have the money to offer the best services possible, as we ungrateful parents demand, all the while hinting that it's because of the "parents' delusions about their child, and their child's 'abilities' (or rather DIS-abilities) and our inability to accept reality."

Yet they fail to mention that not only do they receive more money from the government for special education students so they CAN provide them with "extra, special services," but also the fact that most services (expenses) could be and most likely ARE reimbursed in full to the districts through the child's Medicaid - which the child most likely receives, as they qualify because of their disability.

The districts also fail to mention that the money they receive for special education doesn't have to be "accounted for." What that means is that the money doesn't have to be designated or remain in its own "fiscal category" or "account"; monies received for "special education," including insurance payments to the best of our knowledge and experience, are permitted to be transferred into a school's general education fund.

That GENERAL FUND is just as it sounds; monies that can be used on whatever a district wants, even if it's astro-turf, band instruments, or football uniforms, and not necessarily the special education services they'd received the monies for.

So the argument that the "funds just aren't there," or "we don't have the money" are automatically suspect, not for the fact that the money isn't or wasn't there to begin with, but that it was and should be.

Nope, we PARENTS are causing TAXPAYERS and SCHOOLS undue financial hardship every time a due process request is made. Everyone else is just an innocent by-stander.

And ya know, parents are just rushing left and right to make these "demands" on schools right away. That's why there's just soooo many due process hearings.

How many due process cases are heard a year again?

According to the Office of Dispute Resolution, the agency responsible for handling Due Process cases in PA, 822 requests were filed in PA from July 1, 2007 to June 30, 2008 , but only 663 requests in the whole state were heard.

Let me repeat that: 663 requests were heard in the WHOLE ENTIRE STATE in a single year. (http://odr.pattan.net/files/ODRStats/cum_07_08_dp.pdf)

Out of the 1,821,383 eligible children receiving special education services in PA. (PA Dept. of Education, Special Education Statistical Summary, 2006-2007, page 147).

Oh, and in Exeter school district from July 1, 2007 to June 30, 2008, only 6 Due Process Hearings were filed; 5 were heard, 1 was withdrawn.

Four of the 5 that were heard were resolved with "agreements." (PA Dept of Education, Special Education Statistical Summary 2006-2007 - no page number given, please scroll down or "find" Exeter to confirm information)

Out of 648 children identified as eligible for and in receipt of special education services in Exeter schools. (Exeter Special Education report filed with the PA Dept of Education.)

So yeah, you can really tell we've given up even TRYING to work with the "poor, financially strapped districts" like Exeter, because we parents are filing all these Due Process hearing requests.

We parents also have all this money to hire an attorney to represent us. (Oh, what was that about Winkleman vs Parma and parents winning the ability to represent themselves pro se because we CAN'T afford to hire attorneys, yet school districts CAN afford to spend OUR TAX DOLLARS to keep attorneys ON RETAINER or HIRE ONE just IN CASE a parent decides to challenge the school? Hmmm, I must be mistaken.)

And we have so much time to prepare and file all those LEGAL documents, gather expert witnesses, and prepare oral and written testimony just as if we were going to a "real" court trial, because it's not like this is a "real" court case anyway. Despite the fact that hearing officers CAN issue summary judgments and demand restitution, just like "real judges."

Because we don't need to take our children to therapies or specialists in addition to what the school might offer. We don't have to spend more time helping them with their homework than we might our non-disabled children, children who also get all the love, time, and attention from us that they need; time that is not taken from them because a brother or sister with a disability is in the middle of a daily after-school meltdown. We don't have any additional family obligations or work obligations pressing upon us. We don't have to spend time researching and interpreting laws and trying to make sense of them, or trying to locate advocates for help. Nope, we have all the time in the world.

I suppose our children aren't "real" either.

And it's not the fact that we parents have to practically beg and plead the district on hands and knees for EVERY LITTLE THING or that Due Process is a LAST RESORT when our kids are denied necessary services.

Nope, school districts do everything in their power and within their means to give us parents all that they can.

Like safe transportation to and from school or ANY transportation at all (Yeah, because I didn't have to call the Office for Civil Rights (OCR) to file a complaint on our district when they REFUSED to transport my child because she has epilepsy and might have a seizure on the bus, therefore I must take her EVERY DAY.)

Like staff who are trained in our kids disabilities so we parents can send our kids to school safely and they can teach our kids in ways our kids can understand (You know, because my daughter really was "just" daydreaming or falling down because she's "just" a klutz, not because of seizures. Oh, and that behavior - totally "not autistic" - because her teacher and the Dir. of Special Education don't think she "looks" autistic, so she must instead be "emotionally disturbed." And no, they didn't just conveniently ignore the multiple medical and psychological reports confirming her multiple disabilities, after all, they're TRAINED.)

Like a permanent nurse on staff in the school every day for more medically fragile kids (who have just as many, if not more, legal rights to be there as their non-disabled peers), rather than a "hit or miss" situation if their "roaming nurse" happens to be in another building during a medical emergency. ("But you're more than welcome to stay with her on the days the nurse can't be here.")

And no I didn't need to file a 20 page civil rights complaint against my district when she was abused in school by school staff, because they wouldn't DARE violate federal law. Because it NEVER happened. Honestly, her grandmother must have imagined those two aides holding her down in a chair by her arms, with them standing behind her, pushing her chair against a desk so hard and so far she could hardly breath and couldn't do more but kick and struggle to call for help, and I must have imagined the finger-print-like red marks on her arms right after it "didn't happen."

Gee, wonder why we needed federal and state laws to specifically outline a district's obligations to kids with special needs in the first place? Wonder why there are Protection and Advocacy's and other Disability Rights organizations popping up, if there's no need? It couldn't have been because children with disabilities were being denied services or otherwise discriminated against, even abused, because schools are/were only trying to do the "right thing."

Here's a plea to districts like these:

"Puh-lease get over yourselves and YOUR delusions of selflessness. Stop acting like you deserve a gold medal just because YOU 'allow' our kids to step foot in your 'hallowed halls.'

It is YOU who should be honored that we trust you enough to "do right" by our kids; that we trust and expect you to give them the education, skills, and tools they need to function as best they can in society in a SAFE environment by staff who care for and about them; that WE send OUR kids to YOUR schools because of the wealth of knowledge YOU and your STAFF can gain by working with them, rather than 'around' them.

Not to mention the benefits all children, not just those with disabilities, could glean in return by spending time with children who are different from them, learning about and with them.

Who knows, maybe you could all even be better people because of them. If you give them a chance, that is.

My daughter attended one of your wonderful public schools in Southwestern PA, and you know what? She was abused by the very same people who told ME the same thing: "We're doing all we can." And then THEY filed for due process. And I represented myself pro se and got the hearing officer to toss the whole thing because they didn't provide the hearing officer with "sufficient information" and refused to "provide sufficient information."

Well, they were right about one thing, at least. They WEREN'T appropriate and refused to even try to BE appropriate.

Why would I want to put my straight A daughter, who had been in a general education classroom FULL TIME with few behavior problems who CAN LEARN, into any of your schools or any you recommend, when you've asked me to give you permission to restrain my child "at staff discretion?"

Because not having restraints written into her behavior plan or IEP with my signature on file allowing you to abuse her was what got you in trouble with the Dept of Ed in the first place.

There's a reason why I'm now homeschooling. "

To my readers: Please join me in writing to Heather Tassmer, the author of the original article, to ask for a follow up investigation - one that gives a more complete "view" of the situation; one that asks that the "other side" be heard. She can be reached by email at htassmer@berksmontnews.com or by phone at 610-367-6041, ext.225.

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About the author:

Jennifer Searcy is the mother of four daughters, ages seven through 13. Her nine year old daughter was diagnosed with epilespy at 15 months and PDDNOS by age 2 1/2. This daughter was illegally and inappropriately restrained in a public school on October 19, 2006 at age 7.

She is also a graduate of Pennsylvania State University, holding a bachelor of science degree in Human Development and Family Studies with a minor in psychology, and was a co-founder of Families Against Restraint and Seclusion and Pennsylvania Families Against Restraint and Seclusion.

She is currently the Founder and Director of Public Policy and Affairs for The Coalition for Positive Behavioral Interventions and Supports, and is a volunteer for The Arc of PA's Systems Advocacy and Governmental Affairs Sub-Committee for Early/Childhood Education.