Appropriately Ambitious:

A Special Education Legal Blog 

“But [the student’s] educational program must be appropriately ambitious in light of his circumstances …. The goals may differ, but every child should have the chance to meet challenging objectives”

Endrew F. v. Douglas Cnty. Scl. Dist. RE-1, 137 S.Ct. 988, 1000 (2017).

Search
  • Patrick G. Radel, Esq.

Seeking Special Ed Serenity


The start of a new year is a good time for big picture pondering. When I think about special education from a broader perspective, my thoughts often turn to a dilemma faced by those of us who love and support students with disabilities: How far can (should) we push the school team? Are we supposed to fight every battle? If not, then when and where is it ok to “let it go”?


I think most parents and advocates understand that we need to be persistent about protecting the student’s rights and pressing to get them the supports and services they need. However, we can’t be in a state of constant, total war with school. Compromise, accommodation, and acceptance are sometimes necessary.


So, it’s not a question of if or whether we push, but of what and when and where. In other words, where should you compromise and what is acceptable to accommodate? What should you forgive and when should you fight? There are, of course, rarely any “right” answers or easy solutions. However, I believe there are some principles that might be helpful to guide conversations and shape decisions.


 

Concerns Involving Restraints, Seclusion, and/or Suspension Need to be Addressed Immediately.

So-called “aversive interventions” include physical restraints (e.g., “therapeutic holds,” “child control,” “crisis interventions”) and seclusion (e.g., “time-out” room, “quiet” room, “calming” space). Students with disabilities have special protections from school discipline, but are sometimes suspended for “misconduct” that arises from the nature of their disability and/or the school’s failure to provide proper supports.


If you have reason to believe restraints or seclusion are being used, and/or if the student is being suspended or disciplined, this should be addressed with the school right away. Restraints and seclusion have been shown to be ineffective in addressing challenging behavior and are harmful to students. You should check the law in your state, and there is pending federal legislation that will (hopefully) help better protect students, but parents and advocates must push to ensure that restraints and seclusion are only used in genuine emergencies, if at all, and never as a substitute for systematic behavior supports. Likewise, suspensions and discipline are not to be used in place of proper skill-building supports and services.


You can’t compromise concerns about restraint, seclusion, and suspension. These interventions deny the student access to her education and, as if that wasn’t enough, they jeopardize emotional, psychological, and perhaps physical well-being. If you believe your student has been (or is being) restrained, secluded, and/or suspended, you should insist on an immediate conference to review the student’s behavior plan and examine the supports and services, including whether a behavior expert is needed to help address the student’s needs positively and proactively. You should also consider consulting an attorney or advocate.


 

Concerns Involving Program and/or Placement Need to be Addressed.


Under the special education law, the student’s “Individualized Education Program” (IEP) includes an educational placement and describes the supports and services the student needs to receive a “Free Appropriate Public Education” (FAPE). The IEP is created by a committee of people knowledgeable about the student and his disability. The committee must include the student’s parent/guardian.


Under the law, parents/guardians are entitled to “meaningful participation” in developing the IEP. If the parent/guardian disagrees with program and/or placement, they have the right to initiate a legal proceeding to have an impartial hearing officer review the record and decide whether the school followed the law.


Common questions about placement include:

  • Is the student being educated in the “least restrictive environment,” as the law requires? Is the student being given meaningful opportunities to learn and live with students without disabilities? If not, why not?

  • Is the student attending the school he would attend if he did not have a disability? If not, why not? Is the placement as close as possible to the student’s home? If not, why not?

  • Is the student making meaningful progress in her current placement? If not, why not?

Some common questions about program:

  • Is the student identified as a “student with a disability” under the special education law? If not, should she be?

  • Is the student being provided with the supports and services he needs to make progress that is “appropriately ambitious” in light of his circumstances?

  • For example, does the student need (or need more) support from a special education teacher, teaching assistant or teacher’s aide, speech-language pathologist, occupational therapist, physical therapist, school counselor, reading specialist, and/or behavioral specialist? What about sensory supports? What about assistive technology? What about modified materials and/or curriculum?

These questions are fundamental. If the program and placement aren’t appropriate, the chances of meaningful progress are low. Decades of research prove a link between the achievement of students with disabilities and the amount of time they spend in general education with typical peers. If you have concerns about your student’s educational program and/or placement, you should request a “program review” meeting with the school team. If you still have concerns after that meeting, you should consult with an attorney or advocate about your legal rights.


 

Concerns Involving Personnel & Personalities are Tricky.


What if a member of the school team doesn’t have right attitude and/or aptitude to support the student? The program and placement are right, but the personnel and personalities are misfit. This is a thorny, and common, challenge. Parents (and advocates) don’t have the power to make personnel decisions and it is impossible to change an adult’s personality (just ask anyone in a long-term relationship!).


So this isn’t really something we can fix with a letter or a lawsuit.


What can be done? Here are five suggestions:

  1. Talk to a School Administrator. There is nothing wrong or unusual about expressing your respectful opinion to a school administrator (principal, special education director) that perhaps Mr. So-and-So is not a “good fit” in terms of working with your student and perhaps another teacher, aide, etc. might have more success. There’s no guarantee your suggestion will be accepted, but it's usually worth trying.

  2. Push for Professional Development. By law, the IEP can, and should, include “supports for school personnel.” You can advocate for professional development (a polite term for training) for the school team regarding the nature of the student’s disability and strategies for better understanding and meeting the student’s needs.

  3. Try some Friendly Persuasion. In my experience, many (most) educators chose their career because they care about kids and want to help them succeed. Of course, that doesn’t mean every school employee is a creative, committed, patient problem-solver! But at least some of time, at least some educators might be receptive to thoughtful, respectful advocacy on your part to help better understand the student, her disabilities, and the best ways to support her. You could create a worksheet called “Tips for Working with {Student},” invite them to an informational seminar from your local support group, or share a helpful book or article. You can express appreciation for their efforts, celebrate successes, and take care to express disagreement or disappointment in respectful, thoughtful ways that don’t threaten identity or dignity. These efforts are not guaranteed to work (and often they won't), but it's at least worth the effort.

  4. Have Humility and Patience. This is MUCH easier said than done, but we do need some humility and patience as parents and advocates. Perhaps the person doesn’t see the student the way we do or responds to him in a way different than what we’d like- is there something valuable in this different perspective? something we can appreciate or learn? Also, to avoid making “the perfect the enemy of the good,” we accept and appreciate that all of us of have moments where we don’t meet challenges with the patience, skill, and grace we ought to, and that this is true for educators as well. This isn’t to say that there aren’t some “bad apples” (there definitely are) and it isn't to say that there aren't times when you just HAVE to stand and fight (see above); it’s simply to counsel against jumping to conclusions or making overly harsh judgments.

  5. Always keep the focus on the student. The person might annoy or offend me, but it'd not about me - it's about the student. When you're about to do - or say - or text - or post something - ask: will this help make my student's school experience better?

Of course, none of these suggestions are foolproof and some days (and some years!) you’re just hanging on for dear life. That’s the journey. We know we can’t accept everything that’s offered by the school at face value. Schools can and do get it wrong and fail our students in profound ways. It’s our job to be advocates, to demand what the law requires, to push for progress.


But we also know that a constant battle on every front is not likely to be successful and is certainly not sustainable. In my view, the only real way out of this is through it. We reject “all or nothing,” “fight or flight” thinking and consider each challenge as it comes. We ask – what kind of problem is this? (restraints/seclusion vs. program/placement vs. personnel/personalities); what resources do I have to address it? how important is this to the student’s success? what solutions seem realistic/possible/plausible? And then we meditate, pray, or ponder the Serenity Prayer and lean on each other for support, advice, and encouragement! I hope this post provides a helpful framework as we seek serenity for ourselves and success for our students.



For legal education only.  This does not constitute legal advice or establish an attorney-client relationship.