Families and Schools: A Level Playing Field Allows For Open Communication

By Heather Zakson

Recently, I represented a family at a facilitated mediation of an IDEA “due process” dispute. The mediator opened the meeting and both parties described the issues that each hoped to resolve. I presented a summary of the issues that led to the due process filing. Then, the school district complained that my representation had impeded the district’s ability to communicate freely, build trust and effectively serve the student.

Happily, notwithstanding this initial shot across the bow, we were able to resolve the dispute and settle the matter. After we did so, at the conclusion of the meeting, my clients told the district that, contrary to what had been suggested, if they hadn’t had attorney representation, they were certain that they could not have reached an amicable agreement with the school district and they would not have obtained from the district the services their child needs.

I hear very often from school district representatives who raise concerns that once a family retains attorney representation, the relationship between that family and their school is spoiled and cannot be collaborative, open or candid. My experience is actually the opposite. As a special education attorney, I help improve the communication between parents and schools so that they can work together as a team to develop appropriate special education programming for the child.

In actuality, what is required for a true collaboration is an IEP team that meets on a level playing field, where all participants are fully informed of everybody’s roles, responsibilities and rights and where all points of view are given real consideration. One of my primary roles is to create that environment.

It is a simple reality that a school district has many, sometimes hundreds or thousands of special education students in its population. A school psychologist, program specialist or administrator may spend most or even all of his or her time managing students’ IEPs and the other administrative processes that go with IEPs.

In general, a parent of a special needs child has the experience of only their child’s program. Considering that fact alone, it is obvious that school personnel are far more experienced dealing with IEPs than any one parent can be. This experience can be of great value to the IEP team — but it also means that parents are at a tremendous disadvantage with far less knowledge of the range of resources available, the contours of legal rights and obligations, and the simple interpersonal dynamics that emerge when the IEP team convenes to decide on a child’s educational program.

Because of this imbalance of information and experience, it’s no wonder that parents who don’t have attorney representation might be frightened and intimidated. Query whether the IEP team work collaboratively and congenially when one or more of the most important members of the team are feeling this way?

In my experience, here’s what can happen:

» Parents are unsure of their rights or responsibilities, so they don’t know how to intelligently answer requests to share sensitive personal information like medical records and psychological reports. As a result, they “play it safe” and withhold the information.

» Parents are uncomfortable because they are unfamiliar with unique terminology and the ease with which professionals like teachers and school psychologists apply clinical terms and shorthand (even the use of “IEP”).

As a result they are suspicious of a process in which they are unable to fully understand or participate. This discomfort is exacerbated for parents whose primary language is not English.

» Parents are unsure of what it means to “agree” or “consent” or “disagree;” they may not know if “disagreement” means that their child will receive no help at all, and they don’t know if it’s possible to selectively consent to some components but not others of a district’s proposed IEP for their child. As a result, they may consent to a program that they do not agree with, or they may simply do nothing.

These are situations that can frustrate the IEP process in many ways, for example: assessments can’t be completed without all the information that the assessor feels he or she needs; the IEP team cannot agree on how to report on a child’s progress, and cannot reach consensus on goals or services; or a proposed IEP might sit for weeks or months without consent for implementation.

My job as a special education attorney is to ensure that my clients are well informed and therefore equipped and empowered to meaningfully participate in the IEP team and the development of their child’s IEP. I make sure that all of the information that’s needed is shared both ways, so that the school can properly assess its students, and so that the parents have complete access to their child’s educational records. I make sure that my clients understand the clinical terminology as well as the legal terminology that is an inevitable part of the IEP processs (remember that the IEP process only exists because it is mandated by law). I work with my clients to obtain professional consultation from experts in education and therapeutic treatment to determine whether a proposed IEP program is reasonably likely to meet the child’s needs so that he or she can learn and grow. These are necessary steps if parents are to make informed decisions about whether to consent to implementation of the IEP, or avail themselves of the range of remedies to fix what may be wrong.

IDEA expressly provides legal remedies and specifically protects the right of parents to attorney representation, because otherwise the guarantees of the IDEA would be no more than empty promises.

Therefore, when it’s appropriate, I also advise my clients on an effective litigation strategy to enforce their rights and their child’s legal entitlements. It is also important to mention that our firm is completely committed and highly qualified to litigate these cases and win.

Still, in my practice, aggressive litigation is never the first or only approach. That is because I understand that my clients seek attorney assistance not to “make war” on the school district, but rather to protect their child and make sure that he or she has an opportunity to learn, to make progress in his or her education, and to have full access to the public education system like any child in California.

Moreover, I keep a priority focus on the fact that each resolution that is reached and each corner that is turned must form the foundation of a future of productive and amicable collaboration between the family and the district to see the student all the way through his or her educational career and into adulthood.

As a special education attorney, I don’t impede productive communication between my clients and their schools –on the contrary, by leveling the playing field, and equipping my clients with the information they need to be well-informed and active participants on their child’s IEP team, I make sure that the conditions exist for open communication to happen.

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