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Sad, But True. Decision-maker v. Equal Participant

04/23/12
by Pat Howey

My school told me, “You are the expert at home and the district is the expert at school.”  I did not agree to my daughter’s IEP. The district refused to allow me to tape record meetings and include my notes with the district’s notes. I filed a state complaint.

The complaint: The school completely ignored my issues and did not allow me to be an equal participant on my daughter’s IEP team.

The State Department of Education response: IDEA requires schools to give parents an opportunity to participate in the IEP process and to consider the parent’s input. There is no requirement that parents be an “equal” decision-maker nor is there any standard to determine the quantity or quality of participation. The school is not out of compliance.

Is this right?

Sorry, but I have to agree with your State here. IDEA does not require that parents be equal decision-makers.  You may want to check your State’s law; it may provide more rights than does IDEA.

IDEA requires that parents be equal participants in the special education process. When a dispute occurs… the school is responsible for ensuring FAPE. Therefore, IDEA intends the school to make a decision about the dispute that provides the student with FAPE.

Since the school and the parent disagree, the school’s decision will usually not be in the parents’ favor. This is when the parents’ due process rights kick in.

To dispute that decision, you have:

  • a Constitutional right
  • a right under IDEA and your State’s special education law.

You can exercise your due process rights through the State Complaint system. If the issue is about discrimination, you can file a complaint with the Office for Civil Rights.

I do not know why the State complaint investigator ruled the way he did. You may have inartfully phrased the allegations in your complaint. That’s what it seems to be. Or, it could be that the complaint was a “he said/she said” complaint with no real proof. Parents almost always lose that one.

I strongly suggest that you review these two articles on Wrightslaw.

When you learn to prepare a written report to give to the IEP Team and to write a Written Opinion following decisions you disagree with, then you will most likely have the proof you need to “win” these kinds of complaints.

Wrightslaw: Special Education Law, 2nd EditionProcedural Safeguards

Wrightslaw: Special Education Law, 2nd Edition

20 USC Section 1415, page 107 and 34 CFR Section 300.500, page 251

Print Book & PDF Combo

Print Book

This is the way I summarize a parent’s procedural safeguards:

1. You have a right to be a full participant in the special education process. (Not a full decision-maker).

2. You have a right to submit information about your child.

3. You have a right to disagree with decisions made about your child.

4. You have a right to due process to dispute these decisions.

Pat Howey is an Indiana advocate who helps parents obtain special education services and resolve special education disputes. She also provides Wrightslaw advocacy training. Pat answers your questions in Ask the Advocate.

 

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7 responses so far ↓

  • 1 Patricia 03/25/14 at 2:32 pm

    Pat Howey’s answer does not address the fact that the IDEA does protect the parents right to tape record the IEP meeting, which the parent claims was not allowed as was the written inclusion of her disagreement with the IEP. This issue does not seemed to have been addressed by the state either. If the parent had their own minutes of the meeting, instead of the sense of the meeting report provided district they would have more legal standing. I learned to always bring our own tape recorder and notify the team that we would be taping the meeting in advance.

  • 2 LarryD 10/05/12 at 8:50 am

    I’m feeling very unequal.

    I got a letter from the District’s attorney yesterday:

    “to request that you contact me, directly with respect to concerns you have with XX’s Special Education program.” … “With respect to NORMAL [my emphasis], day-to-day, communication regarding XX’s education, please feel free to contact District personnel…”

    Wow. Is this legal? I sure don’t feel like a full participant.

  • 3 Leah 05/08/12 at 3:22 pm

    I have a new daughter from another country and she speaks very little English. I have been told that she could receive special services and I should ask for a IEP. Right now the school is very cooperative and she is going a few days a week (1/2 days) to school, and is starting to meet others. She has only been here 3 1/2 weeks and is from Russia, she is 15. She is not particularly interested in learning English fast, we communicate on the computer or in gestures and a little Russian on my part and English on hers. My concern is the summer looming, as there is less than a month left of school. The school is content to just let her attend classes with another girl who is a linguist and excellent student, and tomorrow our daughter will attend ESL class for 1 hr after school. I need help to figure out what steps to take to prepare for summer.

  • 4 Morning 04/25/12 at 11:03 pm

    BURDEN OF PROOF DUE PROCESS

    There may be changes coming down in several states regarding burden of proof in due process cases. When I read the article, it came to mind how some school attorneys are now advocating that the parents should show the appropriateness of the child’s program and not school districts in due process hearings. Some feel that it is only fair that the burden of proof should be on the party filing for the hearing.  I would advise all to check with their state dept. on education on this as some changes are being considered in some states that may put the burdens of proof on the parents. “It is sad but true.”

  • 5 Mike the Psych 04/24/12 at 3:23 pm

    I would hope it doesn’t need to go to court as IDEA defines the parent as a required team member. I would wager by full they meant a required participant of the IEP team, however it was a poor choice of words on the part of that state.

  • 6 Chuck 04/24/12 at 10:10 am

    It should be added that 300.324(a)(ii) of the IDEA regs, says “the IEP team must consider- (ii)The concerns of the parents for enhancing the education of their child”. Use of the techniques mentioned in the article can help the parents have these concerns listed and considered.

  • 7 Aaron 04/23/12 at 2:59 pm

    I have a question regarding your summary of the procedural safeguards:

    What defines “full participant”?

    If the state’s response to the compliance complaint as quoted is correct, then there is no standard for quantity or quality of participation,and “full participant” will mean whatever it is that the school district decides that it means.

    That sounds like a lot of time and money will be spent in court to flesh out what it means.