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The Special Ed Advocate Newsletter
June 16, 1998

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ISSN: 1538-3202


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The Special Ed Advocate is a free online newsletter about special education legal issues, cases, tactics and strategy, educational methods that work, and Internet links.

We publish this newsletter occasionally, when time permits. Back issues of The Special Ed Advocate are archived at our web site -

http://www.wrightslaw.com

As a subscriber to The Special Ed Advocate, you will receive announcements and "alerts" about new cases and other events. Contact, copyright, and subscription information can be found at the end of this newsletter.


(1) Tactics and Strategy Session with Pete Wright: Writing IEP Goals and Objectives

(2) Did the Pendulum Swing in Florida? - New 11th Circuit Decision in Weiss v. Hillsborough School District (procedural violations; damages; delay in finding autistic child eligible)

(3) "Loving Parents" Are Not Entitled to the BEST Education - New 2nd Circuit decision in Walszak v. Florida Union Free School District (tuition reimbursement; residential placement; developmental disabilities; insufficient evidence that public school program not appropriate)

(4) Letters to the Webmaster - Why did Bill Matthew write "We can train Shamu but we can't train a kid to be compliant or to read?? Give me a break!!" Bill also has some suggestions about our "Tests and Measurements for Parents and Advocates" article.

(5) Letters to the Webmaster - Faye wrote "My child's special education program failed. Is this my fault?" Pete and Pam respond to Faye's questions.

(6) COMING SOON - How to Chart Out Test Scores; Sample Graphs of Test Scores

(7) NOTICE: Legal Advice on the Internet


NEW ARTICLE IN SPECIAL ED ADVOCACY LIBRARY!

(1) A TACTICS AND STRATEGY SESSION WITH PETE WRIGHT -

IEP GOALS AND OBJECTIVES

This new article should help parents get good IEP goals and objectives in their child's IEP. The president of a state LDA chapter asked the questions - and Pete provided the answers. Here are some of the questions Pete was asked in the Tactics and Strategy Session about IEPs:

What should parents do if the school members of the IEP team insist on using subjective "teacher observations," not objective information in the child's Present Levels of Educational Performance?

Why should parents use a consultant to help write IEP goals and objectives? How can parents measure educational progress?

How can parents avoid "methodology disputes" - and still get the services their child needs?

How can parents negotiate for school-paid private tutors? What are Extended School Year (ESY) services?

How can parents write good IEP goals and objectives?

How can parents know if their child is really making progress?

What should parents do if their child is NOT making progress? What techniques can parents use to show that their child isn't making progress?

Read this new article about using tactics and strategy in The Special Ed Advocacy Library -

http://www.wrightslaw.com/Tactics_Strategy_IEPs.html


LAW LIBRARY - NEW CASES!!

(2) ELEVENTH CIRCUIT DECISION - ADVERSE TO HILLSBOROUGH PARENTS

In law, the pendulum always swings. Pro-child decisions are followed by pro-school decisions. In law, there are no blacks and whites - law is written in shades of gray.

In April of this year, we sent our newsletter subscribers an "Alert" about the Whitehead case in Florida. In that case, a jury found that the Hillsborough School District retaliated against Andrew Whitehead's parents for trying to ensure that he received the services in his IEP. The jury awarded Andrew's parents $600,000.00.

Less than six weeks later, on May 13, 1998, the Eleventh Circuit Court of Appeals rendered a decision in favor of the same school district in Weiss v. Hillsborough.

This case involves young Samuel Weiss, a child with autism. In 1993, Samuel's parents learned that they would be moving from Fulton County, Georgia to Tampa, Florida (Hillsborough School District). To smooth their son's transition into the new school district, the parents sent copies of his IEP and other educational records to Hillsborough before moving to Tampa. Thus, Samuel entered the Hillsborough school district with an IEP developed in Georgia.

On October 6, 1993, Samuel's parents attended an IEP meeting with Hillsborough school staff. The district declined to implement Samuel's existing IEP from Georgia. Instead, Hillsborough advised the parents that they would have to do new testing before they could find Samuel eligible for special education. While this new testing was being done, Samuel would receive services through an "interim IEP."

The Eleventh Circuit described this "interim IEP" as follows:

"Although the October IEP was not nearly as comprehensive as the Georgia IEP, it sketched out some current levels, some goals and objectives, a list of persons responsible for Samuel's education, evaluation procedures and a schedule.

Six months later - in April, 1994 - Hillsborough finally held an eligibility meeting and determined that Samuel was eligible for special education as a child with autism. Next, the district proposed an IEP. The parents disagreed with the IEP. On the following day, they withdrew their son from the public school program.

Next, the parents requested a special education due process hearing to resolve their dispute. The Hearing Officer concluded that the interim IEP was legally sufficient under Florida law and the IDEA, although it lacked specificity and failed to explain the effect of the Georgia IEP. The Eleventh Circuit upheld the Hearing Officer's decision on this "interim IEP."

The parents claimed that by continuing this "interim IEP" for six months, Hillsborough - and the state of Florida - denied Samuel a free appropriate education. They asked the Eleventh Circuit to rule that Florida's Regulations governing these timelines were improper. The Eleventh Circuit was unwilling to invalidate Florida's Regulations:

"The six month window created under Fla. Admin. Code R. 6A-6.0334 is not inconsistent with the IDEA's goal to provide Samuel with a FAPE. Absent clear direction from Congress, the Court will not invalidate a state rule because it differs from a particular party's interpretation of the IDEA."

The Court noted that the parents alleged 27 procedural violations by the school district. This is how the Eleventh Circuit portrayed these issues:

". . . the Weisses spend a great deal of their memorandum discussing the faults of the educational services that Samuel received and explaining how Samuel would have made greater progress had the Georgia IEP been implemented . . . both the Weisses and the School Board desire to provide Samuel with an education which will maximize his potential. However, the School Board is not required to maximize his potential . . .

"Nor is the School Board required to provide an education according to the dictates of Col. and Mrs. Weiss, notwithstanding their unequivocal right to participate in making educational decisions."

"As to the other alleged violations, the facts do not show that the Weisses were precluded from participating or making informed decisions regarding the education Samuel received. Although the IDEA envisions full parental participation in the development of the IEP, the Act does not mandate such participation in every aspect of the educational process."

What led the Eleventh Circuit to issue this decision? Is this decision a reaction to the $600,000 jury verdict for Hillsborough parents a few weeks earlier? The Eleventh Circuit may have provided an answer to this question in their decision. Click on the decision (below). Read the second sentence of the decision - after "Samuel Weiss is an autistic child; he is thirteen years old."

The new Eleventh Circuit decision in Weiss v. Hillsborough is available in The Law Library.

http://www.wrightslaw.com/case_Weiss_Hillsborough_11Cir.html


LAW LIBRARY - NEW CASES!!

(3) SECOND CIRCUIT DECISION - WALSZAK V. FLORIDA UNION FREE SCHOOL DISTRICT

LOVING PARENTS WANT WHAT'S "BEST" FOR THEIR CHILD - SCHOOLS ONLY NEED TO PROVIDE AN "APPROPRIATE PROGRAM"

On April 16, 1998, the Second Circuit issued their decision in a New York tuition reimbursement case. In Walszak v. Florida Union Free School District, the Court determined that the program proposed by the public school did provide B. W. with a free appropriate education. B. W. is a child with severe learning disabilities.

In addition to her learning disabilities, the child had serious social problems. She did not interact with other children and did not have friends. The parents asked the district to fund her placement at Maplebrook School in Amenia New York. The parents felt that a residential placement was THE BEST WAY to address her problems. The district developed an IEP that placed her in one of their self-contained classes for developmentally disabled children.

ALL WITNESSES - including both of the parents' witnesses -- testified that the child made academic and social progress in the public school program. Neither of the parents' experts disagreed with any of the academic or social goals in the proposed IEP. One expert testified that the child needed a residential setting to achieve the social goals. The other expert testified that although she favored the residential placement, the child's academic and social needs could be met in the public school program.

The Second Circuit quoted a 1984 decision by (now) Supreme Court Justice Ruth Ginsburg -

" . . . because public resources are not infinite, federal law does not secure the best education money can buy; it calls upon government, more modestly, to provide an appropriate education for each disabled child."

After charting out the child's achievement test scores, the Court concluded that these test scores were proof that the child made "impressive" and "remarkable" progress in the public school program:

"These objective academic achievements are uncontradicted and certainly not "trivial." In fact, they are impressive when considered in light of the significant social problems that impeded B. W.'s academic progress when she first entered BOCES . . . [the parents experts] each confirmed that the social progress made by B. W. during the years she was enrolled at BOCES was remarkable."

The Second Circuit distinguished their ruling in Walczak from their earlier decision in Mrs. B. v. Milford Bd. of Education, 103 F. 3d 1114. "There, all the evidence indicated that the disabled child's social problems were steadily worsening with adverse consequences on her education."

The Court returned to the issue of academic progress:

"The objective evidence in this case demonstrates that B. W. could make meaningful academic and social progress in a day program . . . the overall picture is plainly one of improvement, not regression.

Quoting a letter from the parents to the school district, the Court held that -

"It appears [that the parents purpose] in seeking a residential placement for B. W. was "to obtain the maximum interventions" for her "so that she can reach her true potential.

"While the parents wishes are understandable, IDEA does not require states to develop IEPs that "maximize the potential of handicapped children." Bd. Of Educ. V. Rowley, 458 U. S. at 189.

"The inadequacy of an IEP is not established, however, simply because parents show that a child makes greater progress in a single area of a different program."

At the conclusion of their decision, the Court cited testimony of one of the parents' witnesses as "particularly relevant."

"Although she viewed Maplebrook as a superior facility, she stated that the BOCES program for the developmentally disabled was sufficiently structured and supportive to meet B.W.'s academic and social needs."

LESSONS FROM THE WALSZAK CASE:

(1.) Children are not entitled to the BEST special education. Parents must eliminate the word "BEST" from their vocabulary when they discuss the child's special education needs. Your child is entitled to an "appropriate education" - NOT the BEST education or an education that geared to "maximize potential." Many courts still define an "appropriate education" as "access to an education" or a "basic floor of educational opportunity."

(2.) Parent testimony carries little weight in the eyes of judges. Loving parents are assumed to be biased. The parents' testimony about what the child needs will not carry the day.

(3.) 99.9 % of the time, school staff will testify that their program is appropriate. About 85% of the time, school staff will testify that their program is BEST for the child. (BTW: School staff can use the word "BEST" - but parents cannot.)

(4.) Parents MUST have a strong team of experts. These experts must be willing to advise the IEP team, Hearing Officer, or Judge about the inadequacies or adequacy of the public school program and the parent program. If the parents' experts testify that the school's IEP and program IS appropriate, parents will not prevail.

The new Second Circuit decision in Walzak v. Florida Free Union School District is available in The Law Library.

http://www.wrightslaw.com/case_walzak_flfreeunion_2d.html

 ========LETTERS TO THE WEBMASTER =========

We receive e mails from people who disagree with our positions and opinions.

(5) Why did Bill Matthew, director of special education, say that -

WE CAN TRAIN SHAMU BUT WE CAN'T TRAIN A KID TO BE COMPLIANT OR TO READ?? GIVE ME A BREAK!!

Also check out what Bill Matthew had to say about our Tests and Measurements article.

Go to http://www.wrightslaw.com/ltr_from_Matthew.html

Occasionally, in Letters to the Webmaster we will post from readers. We select letters that seem to reflect a common question or concern.

(6) Fay from Minnesota wrote to ask:

My child's special education program failed - is this my fault?

My daughter's IEPs have always had vague goals and objectives. My daughter has made little or no progress after several years of special education. If our case goes to due process, is the school liable for not providing an "appropriate" education? Or is it my fault because I signed the IEPs?

Read our answer to Faye at

http://www.wrightslaw.com/ltr_Faye_Sped_Failed.html

Different views, tactics, strategies, beliefs, opinions, and prejudices make for interesting reading. After all - Wright's way is not the only way!

If you have a favorite tip, tactic, or strategy that you'd like to share, send it to

webmaster@wrightslaw.com


(7) NOTICE: PROVIDING LEGAL ADVICE ON THE INTERNET

We receive dozens of emails and letters every day from people who want answers to legal questions. We cannot answer legal questions. If you have a legal question, you should consult with an attorney.

If you want a consultation, please read the information about "Consultations" on the web site.

http://www.wrightslaw.com/Consult_and_Advocacy_Pak.htm

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