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The Special Ed Advocate 
The Online Newsletter About Special Education and the Law
July 1, 1998  Vol. I, No. 7

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 -

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) NEW SLIDE SHOW - "A picture is worth a thousand words." Create great graphs of your child's educational progress.


(2) "Evans v. Rhinebeck" - To learn about the factors that make a child's special education program appropriate or inappropriate - and a roadmap to FAPE.

(3) Lawyer v. Chesterfield" - To learn why school districts should NOT "draw lines in the sand" about ESY services -


(4) Read what James Brody of North Carolina wrote about his Big Case.


(5) The new law emphasizes the need to use research-based effective practices - Learn about "Reading Recovery - The Claims v. The Facts"




Many parents are worried about their child's progress - or lack of progress - in special education. These parents know that homework takes hours to complete - or that the child is still struggling to read. When parents share their observations with the teacher or IEP team, they are usually assured that the child is making good progress. If the school is "in denial," what can parents do?

We are happy to report that the #1 article on our web site is "Understanding Tests and Measurements for the Parent and Advocate." In this article, we teach parents how to measure educational progress with test and subtest scores from the child's evaluations. The article is required reading for all of our parents.

Because a picture is worth a thousand words, our parents learn to create graphs of their child's test scores. If you have a software suite like MS Office, you can use the Wizard will help you make graphs in Excel or PowerPoint. If you prefer to take the "low tech route," you can use graph paper and bright colored markers.

We added a short slide show to supplement our article about Tests and Measurements. At the beginning of the show, you'll see the test scores we used to make the graphs as both standard scores and percentile ranks. We took the child's standard scores, made a graph of that data. Next, we converted the standard scores to percentile ranks and made graphs of the data. Then we took that graph and simply duplicated it several times. In order to isolate the reading, we then deleted all data but the reading percentile ranks. For the next graph, example-writing, we deleted all data except the writing percentile ranks. In other words, we started with a master graph and then duplicated it, and deleted all data except for one educational skill area. These graphs show that the child was not making much progress. The graphs became evidence in one of our cases. Enjoy!

NOTE from Wrightslaw: The slide show is being revised and updated. We will add a new slide show soon.. 


What factors make a special education program appropriate? Inappropriate? The decision in "Evans v. Rhinebeck" provides a roadmap to FAPE.

Two weeks ago, we uploaded the Second Circuit's decision in Walzak v. Florida Free Union and the Eleventh Circuit's decision in Weiss v. Hillsborough. Both cases were adverse to the parents. Yet, we included lengthy discussions of both cases in this newsletter. Several people wrote to ask "Why?"

Adverse decisions teach valuable lessons.

In Walzak, the Second Circuit decided that the public school was providing the child with an appropriate program. After analyzing the child's academic progress, the court concluded that the child benefited from the public school program. If the public school provides an appropriate program, parents are not entitled to be reimbursed for a private program.

This week, we added Evans v. Rhinebeck to The Law Library. In this case, the parent asked the court to order reimbursement for her son's education at the Kildonan School. (Kildonan specializes in educating children with severe language learning disabilities like dyslexia.)

In Evans v. Rhinebeck, the judge concluded that the public school program was NOT appropriate. What factors led him to conclude that the Rhinebeck program was not appropriate for Frank?

To determine if a school district has provided an appropriate education (FAPE), hearing officers and judges must analyze two issues:

(1) Procedural requirements - Did the district comply with the procedural requirements and provisions in developing the child's IEP?

(2) Substantive requirements - Is the district's IEP "reasonably calculated to confer educational benefit?"

If you read the Walzak case, you know that parents are NOT entitled to the BEST education. Parents are NOT entitled to an education that "maximizes" the child's potential.

Disabled children ARE entitled to an education that is "sufficient to confer some educational benefit upon the handicapped child . . . (including) specialized instruction and related services which are individually designed to provide educational benefit to the handicapped child." (Rowley, 458 U.S. at 200-01.) (NOTE: Rowley was the first special education case heard by the U. S. Supreme Court. The Rowley decision is available in Wrightslaw: Special Education Law. )

In Evans v. Rhinebeck, the judge found that the District violated several important procedural requirements of IDEA:

1. The district did not convene a due process hearing within 45 days of the parent's request;

2. The district did not have an IEP ready to implement at the beginning of the school year;

3. The district did not include accurate information about Frank's present levels of functioning, nor did they include objective strategies to evaluate progress in his IEP;

4. The district did not prepare a written report about how they determined that Frank had a learning disability.

In his decision, the judge discussed testimony by several "experts on dyslexia" about whether Frank received educational benefit from the public school program:

"According to each one, the program currently proposed by the district to educate Frank is not reasonably calculated to provide him with educational benefit, and in fact may harm him."

The judge cited testimony by the District's special education teacher. Although the special education teacher provided "intensive one-on-one instruction eight times a week," and modified Frank's homework and class work, his performance declined. The judge noted that "Frank failed every major academic subject of his seventh grade year."

In his decision, Judge Parker included Frank's scores on educational achievement tests. These test scores provided objective evidence that Frank did not make progress in the public school program - that he did not receive educational benefit.

Here is how Judge Parker analyzed Frank's situation:

"The testimony and documentary evidence tell a compelling story of a very intelligent, but emotionally vulnerable, child who is at great risk of dropping out of school, despite a demonstrated capacity to succeed academically, socially and emotionally in an appropriate program."

"The expert testimony establishes that, the nature of Frank's dyslexia in conjunction with his emotional problems, is such that he needs an intensive program of individualized, integrated, multi-sensory, sequential training with students of similar needs. The IEP proposed for Frank is not such a program, and therefore cannot meet his needs."

To read the compelling decision in Evans v. Rhinebeck - go to


To Learn Why School Districts Should NOT "Draw Lines in the Sand" About ESY Services, Read "Lawyer v. Chesterfield"

Danny Lawyer is a young child with autism. At age six, he had expressive language and phonological processing problems. The experts who evaluated and treated Danny advised his parents that his ability to be self-sufficient and independent later in life would depend on his ability to communicate.

During the summer, Danny regressed in his ability to communicate. His behavior deteriorated. His school district refused to provide any speech language therapy during the summer months - and refused to reimburse his parents for the services they purchased for their son.

The parents requested a special education due process hearing - and prevailed. The school district appealed. The Review Officer overturned the Hearing Officer's decision. The case was appealed to Federal Court.

After reviewing the record and hearing new testimony, Judge Spencer concluded, "Regression is not the only factor" in deciding if a child needs ESY services. He listed several additional factors that IEP teams should consider in making ESY decisions:

  • Recoupment in the Fall;
  • The child's rate of progress;
  • The child's behavioral or physical problems;
  • The availability of alternative resources;
  • Areas of the child's curriculum that need continuous attention;
  • The child's vocational needs.
In the Lawyer decision, Judge Spencer discussed regression and recoupment. He also discussed the need to take advantage of "windows of opportunity" in educating children with disabilities:
"Danny's regression in the summer, coupled with nominal recoupment, severely limits the educational benefits he receives from instruction during the school year. His rate of progress is minimized by the interplay of continuous regression and recoupment."

"Moreover, Danny's behavioral problems are compounded by his severe language deficit. His inability to effectively communicate triggers unacceptable behavior. Therefore, it is critical that Danny be provided with continuous speech and communication services."

"Finally, the evidence provided by expert witnesses indicates that for children who suffer from moderate to severe childhood autism, there is a small, but vital, window of opportunity in which they can effectively learn. Such period is generally between the ages of five and eight years old . . . The Court concludes that it is extremely important that at this critical stage of development, Danny receive uninterrupted speech language therapy."

Read the decision in Danny Lawyer's case at this URL:


What is it like to go through a special education due process hearing - from the child's perspective? James Brody - a young man from North Carolina - writes about his "Big Case."

Did you read the Review Officer's Decision in James Brody's case? Did you read his parents' "Letter to the Stranger?" Find out what James thought about his case in the Letter from James Brody at this URL:

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 would like to share, send it to


(5) "Reading Recovery - The Claims v. The Facts"

In June, 1997, the new IDEA was signed into law. In the new law, you will find the following statement:

"However, the implementation of this Act has been impeded by low expectations, and an insufficient focus on applying replicable research on proven methods of teaching and learning for children with disabilities."

Special education has generated negative publicity because the system often fails to teach basic academic skills. Special education outcomes are poor. To change these poor outcomes, the new law emphasizes the need to use "proven methods of teaching and learning" based on "replicable research."

During the past several years, hundreds of school districts around the country implemented "Reading Recovery" programs for young children who are identified as having reading problems. In Reading Recovery, a RR trained teacher works one-on-one with each child over a period of several weeks. Reading Recovery claims that their program is very successful. Is this true?

Serious problems have emerged with Reading Recovery research. Children who have reading problems caused by neurological conditions like dyslexia do not benefit from RR. When schools place these children in RR programs - for weeks or months - the children do not receive the kind of remediation they need. It appears that for many children, gains made in Reading Recovery don't last. By third grade, most RR children have fallen behind again.

For an in-depth analysis of Reading Recovery, read "Reading Recovery - An Analysis of the Benefits and Costs" at the University of Oregon's website:

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