As attorneys, we are accustomed to fighting others' battles on our turf, often the courthouse, in hearings controlled by rules of evidence, legal precedence, statutes, and courtroom rules. However, when working on behalf of a student in need of special education services, most initial advocacy can take place in meetings at the student's public school. An effective attorney is able to adapt many of the fundamental courtroom skills learned in law school and practice to communicate and advocate with educators at these meetings to help meet students' needs.
The road to appropriate special education services for students is paved with a multitude of meetings. The most common of these meetings include the following:
- A domain or assessment planning meeting is typically the shortest and least contentious special education meeting. It occurs after a school has consented to a parent's request to have his or her child evaluated for special education services and involves the various professionals at the school who will conduct the evaluation.
- An eligibility conference occurs after the special education testing is complete. The full team reviews the testing to determine whether the child meets the federal and/or state criteria as a child with a disability and, as such, is eligible for special education services.
- Individual education program (IEP) meetings are meetings that occur at least annually to review the educational progress and services for a student eligible for special education and related services. IEP meetings may occur more frequently if either the parent or school has concerns about the child before the annual review date.
- A manifestation determination review (MDR) is a meeting that must occur before a school can attempt to expel a student who has an IEP. Its purpose is to determine whether the alleged behavior is a manifestation of the student's disability or a result of the school's failure to implement the IEP. An affirmative answer to either question halts the expulsion proceedings.
Note that many school districts offer meetings under a variety of other names. These include response to intervention (RTI), school-based problem solving, or student study team meetings as a response to a parent's request for special education services for his or her child. These are informal meetings that do not fall under the auspices and protections of federal law. They are often of limited usefulness to a struggling student—agreements reached at these meetings are unenforceable and promised services are not entitlements. The meetings are largely inappropriate venues for legal advocacy because they fall outside of the formal special education process enforceable under federal law.
Before the Meeting: Preparing to Advocate
In preparation for any school meeting, attorneys should take a number of preparatory steps. They should gather and review records, give notice to a school of intended participation and confirm the purpose of the meeting, determine appropriate outside participants, prepare the parent, and determine the extent of student's participation in the school meeting.
The Power of Investigation
If you have not started to gather documented information prior to getting a meeting date on your calendar, you should begin to do so as early as possible in advance of a meeting. The most relevant documentation will probably be in the student's school file. A parent is entitled to access all student records (Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. § 1232g (1974)). School records are more than just a student's report card and may include daily attendance and discipline records; security officer reports or correspondence; transcripts; parent communications; social worker, teacher, and aide records; health records; portfolios of schoolwork; data from RTI and school-based problem solving; email correspondence; electronic database records; and videotaped records.
Before attending any meeting, review the records you receive carefully. The records reflect who spends time with the student as well as school staff concerns and perceptions of the student's behavior. In so doing, they may suggest staff whose input would be helpful at school meetings. Only one special education teacher and one general education teacher are required to attend an IEP meeting under the Individuals with Disabilities Education Act (IDEA). See 34 CFR § 300.321(a)(3). The school will often unilaterally choose which teachers to fill in these slots, but there may be reasons for you to specifically request the attendance of additional teaching staff. This is especially true where the staff chosen by the school present a view of the student that glosses over the presence or impact of any disabilities. Records will sometimes show that particular teachers or other professionals have suggested that a student needs an evaluation for special education services or the services themselves. Such information can help rebut claims at an eligibility meeting that a student has no such needs. Records also offer a timeline of the student's progress or lack thereof. It is also good to review teachers' corrections on assignments and tests that may corroborate conclusions that appear in evaluations.
Remember that your focus in reviewing records will vary depending on the specific purpose of a meeting. For example, if the upcoming meeting is an initial domain meeting, preparation will focus on identifying the areas in which a child may be delayed. To investigate these questions, examine the records for those indications of areas in which a student demonstrates problems (e.g., speech, dexterity, attention, conduct). Doing so will support your request for evaluations in those areas at the domain meeting. Similarly, the interview with a parent prior to a domain meeting will center on having the parent identify those areas in which the child has delays and articulate concrete examples of those problems.
If, however, the upcoming meeting is an MDR, the preparation will focus on the school's implementation of the IEP and the description of the student's disability contained in that IEP. At an MDR, the team operates under the assumption that the alleged conduct did happen as stated in the school misconduct report and proceeds to determine whether that conduct is a manifestation of the child's disability or a result of the school's failure to implement the IEP.
To answer the first question and to argue for a manifestation, you must become an expert on the student's disability. Look beyond just the eligibility label in the records to the characteristics of that disability as described throughout the IEP and the child's Behavior Intervention Plan (BIP). 20 U.S.C. 1415(k)(1)(F); 34 CFR 300.324(a)(2); 34 CFR 300.530(f)(i)(ii). If the child has a therapist, get releases to talk to that therapist to identify the ways in which the child's disability manifests itself through his alleged behavior. To answer the question regarding the school's implementation of the IEP, talk to the student and parent about whether the student was receiving the services set forth in the IEP and how they were being delivered. Compare this information with the requirements of the IEP so that you are prepared to argue that the school staff failed to implement the elements of that plan. Finally, note that if the MDR process were to result in a finding that the alleged conduct is not either a manifestation of the disability or a result of the school's failure to implement the IEP, then the case could proceed to an expulsion hearing, where the parties could contest whether the actual conduct occurred.
RSVP: Giving Advance Notice
Before attending a school meeting, give the school advance notice of your intended participation. If you do not notify the school of your intention to attend and participate, you can expect the meeting to be cancelled on your arrival while the school scrambles to speak to its own legal representative. We have found best practice is to forward written notice of representation to the school's special education case manager or principal in advance of the meeting. We usually do this by fax or email so that we can have a receipt. If the school district is represented by counsel, send a copy of all communications to the lawyer so that you do not expose yourself to professional misconduct allegations for communicating with a represented party.
When you notify the school of your intended participation, take the opportunity to confirm the purpose of the meeting to properly prepare and confirm the school's intentions. Because your preparation varies depending on the meeting, it is critical to know the purpose of the meeting in question.
It is also important to give the school advance notice on those occasions when you are asking the school to schedule a "special" IEP meeting outside of the annual review. These types of meetings occur when you want the school to address escalation of behaviors, inadequate progress despite compliance with the IEP, or inadequacies in an existing IEP. If you request such a meeting and leave your purpose vague, the school may panic and come up with a defensive agenda that has little to do with your actual concerns. The result can be a long and unfocused meeting. Instead, when requesting a special IEP meeting, send the school case manager a very brief list of the topics that you would like to cover, such as a need for more social work or speech therapy time, and the school professionals (e.g., social worker, speech therapist, special education teacher) that you want to be present. In our experience, schools have generally been both receptive and appreciative of this advance notice because it facilitates a more efficient meeting.
Set Aside Enough Time for the Meeting
A good IEP meeting takes at least two to three hours. This means that you should schedule half a work day in your calendar so that you can see the meeting to completion. If the meeting is a combination of an eligibility conference followed by an IEP drafting meeting, the meeting could very well become a five-hour meeting or more. Be skeptical if the school representative who schedules the meeting tells you that your meeting is scheduled in a half-hour time slot. If this occurs, inform the case manager that you believe this will be inadequate to appropriately discuss the issues you intend to bring to the table.
Given the lengthy nature of these meetings, bring snacks. This may sound trivial. However we have seen too many IEP meetings that break down due to participants becoming unreasonable or belligerent due to hunger. Teams are generally loath to take a lunch break, as school staff are often anxious to finish the IEP as quickly as possible because other meetings may be pending. Have a snack in your bag to tide you over when your 9:00 a.m. meeting is stretching on toward 2:00 p.m.
Including participants beyond school personnel is an important way to ensure a balanced team that knows your child holistically. When representing children in foster care or adolescents involved in delinquency court, consider incorporating the child's caseworker or probation officer at the meeting. An outside therapist is another professional who can bring valuable insight to an IEP meeting, as well as at an eligibility conference or MDR.
At an eligibility conference, the therapist's expertise is especially critical if the team is considering "emotional disturbance" as the student's possible disability. Eligibility under emotional disturbance requires that the student meet one of five specific categories of characteristics set forth in the IDEA regulations. The therapist can set the stage for finding eligibility by showing that the student has one or more of the characteristics IDEA requires and that these characteristics have been present over a long period of time. It is important to let the therapist know that even diagnoses or conditions that do not meet the standard of a diagnosis under the DSM IV can nonetheless meet the IDEA standard for an emotional disability. For example, a student may not meet the DSM IV criteria for depression, but he or she may still meet the IDEA characteristic of "pervasive mood of unhappiness," which can qualify the student as emotionally disturbed. Similarly, at an MDR, the therapist might be crucial to articulating how a particular behavior is a manifestation of the child's disability.
Finally, if the hourly rate for the therapist is too prohibitive for a parent, consider asking the parent to sign a release, and ask the therapist to write a letter to the team, addressing issues relevant to the conference.
Giving Advocates an Advance View of the Meeting and Strategy
It is important to prepare the parent and additional student advocates for how the meeting will be conducted. This includes helping them understand your strategy for how you and they will participate in the meeting. First, make sure that they understand the purpose of the meeting. Let them know that the meetings can run the gamut from those in which everyone agrees on a child's needs, to one in which it is clear that the school has one goal and the parent has another.
If you are following a particular strategy at the meeting, let the parent and anyone else attending on behalf of the student know what that strategy will be. For example, one effective strategy is to let the school's team present its side first with little initial commentary or interruption from you, aside from clarifying questions. This strategy helps you to determine where there is general agreement between parent and school, before moving on to any differences. If you plan to use this strategy, you should explain it to the parent and his or her invitees in advance of the meeting. Doing so enables them to understand that your method of initial silence has a purpose and will reassure them that you will speak up at the proper time.
It is also important to get the client's team to agree to participate in the same strategy. This enables all of you to work together as a team, with a goal of learning the school's position first, then moving on to present your side's position. Remember that the parent may have attended numerous meetings at the school before retaining your services, and he or she may come to the table already frustrated by the treatment from school staff at the prior meetings. The parent will be more likely to stay calm at this meeting, knowing that he or she has a strong advocate.
Student Attendance at the Meeting
One of the most challenging decisions for advocates is determining whether the student should attend a particular meeting. While student participation at meetings can be helpful in some circumstances, a number of elements of the special education process can be disempowering to students. We have found that school meetings that focus on students' problems and disabilities can be counterproductive to supporting the self-esteem of the students, who often already feel upset because a large school meeting is happening "about them."
For example, eligibility and MDR meetings identify specific disabilities and how they impact on a student's day-to-day life at school rather than on strategies for improvement. This means that to achieve an appropriate finding that the student is disabled or that a student's disability led to problematic behavior, the advocate must highlight the student's deficits. Having the child listen to this list of indicators for a disability may wreak havoc on the student's self-esteem. Yet avoiding or downplaying the student's problems to make the student feel better leads to glossing over actual disabilities. The result could be an inappropriate finding of ineligibility for initial special education services or an inappropriate finding of no manifestation in the case of an MDR. In either case, a truly disabled student may be denied needed services or legal protections because that student's presence at the meeting caused the team members to minimize the student's deficits. Simply put, when a meeting focuses on the identification of disabilities, and that focus will negatively impact the student, it may be better to not incorporate the student into the meeting.
Students with disabilities do need to understand and recognize their strengths and weaknesses, but a better forum for this can be the IEP development meeting after eligibility has been determined, or a behavior intervention plan (BIP) development meeting that may follow a successful MDR. IEP and BIP development meetings are inherently more positive forums for student participation in that they focus on strategies for helping the student overcome his or her weaknesses to achieve optimal success in life.
If the student does attend a meeting contrary to your advice, explain to the student that he or she can leave the room at any point the meeting if it becomes uncomfortable. Help him or her to identify in advance a person to converse with in private should this occur. If the student heeds your advice and does not attend a meeting, be prepared for some push back from the school. You may encounter judgmental looks or statements about the importance of the student "understanding the process" or "accepting responsibility." In these situations, explain that, in your experience, the particular meeting in question can be extremely difficult for a student to sit through. However, assure members of the team that once an IEP or BIP is being drafted, you are happy to bring the student to the table to participate at that more positive juncture.
Part 2 of this article will appear in the next issue of the Children's Rights Litigation newsletter.
Keywords: litigation, children's rights, special education, individual education program, manifestation determination review, behavior intervention plan