Unfair, But Not Illegal, Special Education Scenarios

Published on June 9, 2009 by Jennifer Laviano

On a weekly basis, I am told a story by a parent of child with special education needs which they are convinced is a violation of the law.  It usually starts with “and then the special education teacher told me…” and ends with “they can’t do that, can they?”  To begin with, “they” can do anything.   Whether it is lawful is another matter, and whether, if it is unlawful, a parent can enforce their rights under the IDEA and other protections becomes my job to figure out.  But whether it is fair; well, that is another question entirely.

Not all that is unfair, immoral, or unjust is illegal.

Under the special education laws there are simply a number of situations which arise which are incredibly, patently unfair to parents of children with disabilities, and yet they can occur without violating any laws.  As in life, not all that is bad is illegal.  In my experience as a Connecticut special education attorney, these inherently-wrong-but-legally-permissible matters are what actually most frustrate parents, and give the special education process a very bad reputation.

Some common examples of things that routinely occur in the educational career of children with special needs, which are unfair but not technically illegal, are:

  • Having to Review Records On the Spot:  When you as the parents attend IEP meetings for your child, you are inundated with dozens of pages of evaluations, progress reports, and draft goals and objectives to review while you simultaneously respond to the oral reports of the staff and try to ask questions.  Moments later, you are asked to either agree or disagree with them.  AND YET when you bring a 4 page outside OT evaluation to the IEP meeting, the school staff grouse and grumble and the administrators tell you that they can “not possibly” review all of this information on the spot.  Pretty disturbing, since you are just parents and they are educational professionals who would presumably be in a better position to quickly absorb professional information, but this is legally permissible.
  • Not Liking the Teacher or Service Provider: This is a big one.  I am routinely told by my clients that they do not like a particular service provider or teacher.  Sometimes, the parents are able to give me great detail about why, including many a tale of foolish, naive, and sometimes even offensive behavior on the part of the teacher.  But “I don’t like the teacher” is not a legal argument.  Unless the person is unlicensed, or extraordinary circumstances (like physical abuse) are present, it does not matter, legally, whether or not you like your child’s teacher or occupational and speech pathologists.
  • Failing to evaluate and then insisting on their own evaluators: So often I am contacted by parents who have been expressing their concerns about their child to their school district for years, only to be told that all was just fine.  Then, when a crisis erupts or the family has reached their limit and, with an attorney or advocate or very forcefully on their own, the parents request an evaluation of their child by an outside agency, the school district responds by suddenly wanting to do their own testing with their own staff.  The very staff who have insisted all along that nothing was wrong.  Infuriating, yes.  But illegal, no.  In most circumstances, school districts have the right to do their own testing before a parent has the right to ask for an Independent Educational Evaluation.

There are many more examples of this nature, and I admit it, they are maddening.  But unfortunately, when parents ask me about these scenarios, I have to tell them what is illegal, and what is not.  And then I usually tell them that I would appreciate it if they would contact Congress about their concerns the next time the IDEA is up for reauthorization.

When the imbalance in power presents itself in a scenario where the parent has been wronged by the school district, but has no legal recourse, the result is outrage and demoralization.

For this reason, I would highly encourage school districts to consider the repercussions to the relationship with the family if you routinely provide only the absolute minimal required of you by law, and if you do some of the above simply because, as a matter of law, you can.

Just because you can, doesn’t mean you should.

One Response to Unfair, But Not Illegal, Special Education Scenarios

  1. Dana Jonson
    June 10th, 2009 | 6:45 pm

    This is SO true! Unfortunately, when a school district conducts enough of these “unfair” yet not “illegal” acts, and then eventually does do something illegal, the odds of re-building the relationship between the Parents and the school are almost impossible. This makes it not only incredibly difficult, but extremely costly for BOTH parties to resolve the issues.

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