The Special Ed Advocate Newsletter
October 26, 1998

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Issue - 14

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 -


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.) Learning Problems at School - Whose Fault Is It?

(2.) NEW CASES- From 1ST Circuit (tuition reimbursement, attorneys fees), 5th Circuit (prevailing party, attorneys fees)

(3.) 7th Circuit Weighs In: Woe to Boys Who Play the Wrong Song.
Our First We Are Not Making This Up Award

(4.) Follow a Due Process Hearing at Erik's Page

(5.) The Advocate's Bookstore - Learn More About Autism

(6.) Announcement: International Dyslexia Association Conference, San Francisco

(7.) Subscription Information


Recently, we received letters from readers who expressed concerns about our article, Learning Problems at School - Whose Fault is It? These individuals described our article as cynical and scathing- and worry that the article may cause parents to mistrust school psychologists.

Bill Matthew, director of special education from California, disagrees:

I read your article "Learning Problems at School: Whose Fault is It?" and I think it's outstanding. I know Alessi's work and reputation and it's impeccable.

The problem central to his research is an over-reliance on the medical model - guidance counselors, social workers, school psychologists, etc. are enthralled with the notion of diagnoses . . . of course, the cause is internal to the child. It also excuses other factors - lousy curriculum and teaching methods.

Have you read Learning Problems: Whose Fault is It ?


Drop us a line and tell us what YOU think.


SEPTEMBER 4, 1998. The First Circuit Court of Appeals issued their decision in Kathleen H., Larry H. and Daniel H., v. Massachusetts Department of Education, et. al. In an odd twist, the First Circuit upheld the U. S. District Court from Massachusetts, concluding that the school was able to meet the child's needs (although they failed to do so), and this was sufficient.

After a due process hearing, the Hearing Officer criticized the school for relying on classroom performance as an evaluative tool, found that the special ed services provided for sixth grade were not sufficient; and concluded that the IEPs contained multiple flaws (failure to specify the child's current levels of performance, failure to specify the criteria for measuring progress, failure to specify the services the child would receive).

Despite these serious deficiencies, the Hearing Officer concluded that the school could provide the child with an appropriate education. The U. S. District Court upheld the Hearing Officer's decision and the First Circuit affirmed the District Court's decision.

Read Kathleen H. v. Massachusetts Dept. of Education at:


SEPTEMBER 21, 1998. The Fifth Circuit Court of Appeals issued another unusual decision in W. v Houston Independent School District.

After a Due Process Hearing, the Hearing Officer issued a written decision in which he found that:

(1) Jason's parents were entitled to reimbursement for the fees of two psychologists whom they had retained to help the District develop a behavior management plan for Jason,

(2) that the behavior management plan ultimately adopted by the District was not appropriate, and

(3) that Jason's placement in a resource class from January 10, 1995 to February 2, 1995 was not appropriate and denied him a free appropriate public education (FAPE).

Ultimately, the U. S. District Court concluded that despite the Hearing Officer's findings, the child prevailed on only 3 out of 16 possible issues - and reduced the award of attorneys fees. The Fifth Circuit decision described the school district's settlement offers in minute detail, perhaps expressing concern that the child's attorney did not
attempt to settle the case.

Read this new case at:


(3.) OCTOBER 15, 1998. And we thought school administrators were worried about illegal drugs and guns. At Fairfield Community High School No. 225, school administrators worry about guitars.

To quote Dave Barry, "We Are Not Making This Up."

Our first "We Are Not Making This Up Award" goes to the administrators of Fairfield Community High School No. 225. Residents of this Illinois town can rest easier at night, knowing that school administrators prevailed in their battle against guitar-playing rebels Shaun Dunn and Bill McCullough.

The 7th Circuit explains:

"Shaun Dunn and Bill McCullough were both budding musicians who participated as guitar players in the high school band program at Fairfield Community High School, operated by the defendant Fairfield Community High School District No. 225. Fairfield prohibited its band members from departing from the planned musical program during band performances, and it specifically forbade guitar solos during the performances."

"In direct defiance of those rules and their teacher's explicit orders, Dunn and McCullough (along with two other students) played two unauthorized guitar pieces (instrumentals, with no words) at a February 10, 1995, band program. In due course, the discipline they received for this infraction caused them both to receive an "F" for the band course, and that "F" prevented McCullough from graduating with honors . . .

You may enjoy reading the 7th Circuits decision - we did. This decision is well-written, explains issues relating to the limits of due process, and includes touches of humor. You can read this unusual case at:



Erik is seven years old. He was diagnosed with autism when he was 3 years old. His parents, Phil and Kathy are in due process proceedings with their Minneapolis school district. The parents want the district to fund an appropriate program of education for Erik, which includes Lovaas-based therapy in his home.

The district wants to place Erik in a segregated program for children with autism. The parents are represented by Sonja Kerr of Kerr Law Offices, Mary Jane White of Waukon, Iowa, and Jim Mortenson, of Minneapolis. The school district has hired one of the state's largest law firms, Rider Bennett. (Query: paid with taxpayers dollars?)

Erik's parents welcome you to Erik's page and hope you will enjoy learning about due process through this process with them.


Check out the photo of Erik!


You'll find some interesting books in The Advocate's Bookstore - "Let Me Hear Your Voice" is "an absolutely unforgettable book, as beautifully written as it is informative."

"Let Me Hear Your Voice" is a mother's illuminating account of how her family triumphed over autism. Catherine Maurice describes her daughter's descent into autism and how the controversial Lovaas/ ABA treatment program saved the child.


How can parents develop a Lovaas treatment program? The definitive manual that describes how to develop an ABA program is "Behavioral Intervention for Young Children With Autism : A Manual for Parents and Professionals. (Catherine Maurice, Gina Green, Stephen C. Luce, Editors.)

For more books about educational methods that work, go to



Lynn writes:

I can't begin to tell you how much I appreciate your newsletter. The information is wonderful.

I thought you might want to pass on that the International Dyslexia Conference will be held in San Francisco the week of November 9. This is a great fountain of information about the different approaches in teaching children with dyslexia and other disabilities.

Thanks so much for all you all do to help the children, parents and those who teach children with disabilities.

Thank you too, Lynn.

We'll pass it on!


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