Orange County special education attorney opposes AASA proposal


As an Orange County special education attorney, California, I am writing here to explain my opposition to the School Superintendent’s Association’s (AASA) recently released policy proposal Rethinking Special Education Due Process (RSEDP). I have a number of concerns with this document which I would like to address. First though, let me give a brief overview of the document’s purpose and policy proposals.

IDEA is the major law governing special education

law in school. It currently is past due for reauthorization, but to borrow a line from another special education blogger, Jim Gerl, “Congress is too busy ignoring other important issues at this time.” Since it stands to reason that Congress will indeed decide at some point to address this important piece of legislation, AASA produced RSEDP for the purpose of influencing the conversation around what sort of changes should be included when that gets done.

In a nutshell (for a longer discussion of what RSEDP contains, read my article on, AASA is proposing a complete overhaul of the dispute resolution section of IDEA. Under its proposal, due process hearings (DPH) would be eliminated, mediation would no longer be binding, and parents would no longer be allowed to be represented by attorneys or advocates during mediation. In place of DPHs, AASA recommends two alternative procedures, facilitated IEPs and a “consultant IEP process.”

Facilitated IEP: A facilitated IEP would be used to resolve disputes before a formal due process complaint has been filed by bringing in an outside contracted “state-approved, trained IEP facilitator” who would be a “neutral, state-provided, trained facilitator.” The facilitator would attempt to help the district and parents reach agreement before legal paperwork is filed. Personally, I do not have any issue with the addition a facilitated IEP when an IEP between the district and the parent fails to reach agreement. Such a system can help solve problems before they become larger and more personal.

Consultant IEP Process: If a formal due process complaint has been filed and mediation failed or if one of the parties believed that mediation would be fruitless, the parties would be required to select “an independent, neutral special education consultant designated by the state to review evidence of the child’s disability and advise the parties on how to devise a suitable IEP.” The consultant would have 21 days to collect all the necessary information and design an IEP to be given to the parties. Both parties would agree to honor the IEP for an agreed upon period of time. If at the conclusion of that time period either party was dissatisfied with the consultant’s IEP, that party could litigate their claim in court.

As a special education attorney here in Orange County, Calfornia, following are some of the major objections I have to AASA’s proposal.

This is a Civil Rights Issue

The reason why IDEA was enacted over thirty years ago was to protect the civil rights of disabled students. AASA argues that these protection can now be watered down because of increased government oversight of special education programs due to mechanism within IDEA 2004 and No Child Left Behind (NCLB). I strongly disagree. Yes, these measures have increased oversight on the overall special education system. Under NCLB, districts are required to report on the overall academic achievement of their disabled students and schools and districts can face sanctions for not meeting nation-wide standards on these measures. It is also true that IDEA 2004 requires districts to report on numerous performance and compliance measures. Failure to comply with these rules can lead to a loss of significant federal dollars.

Yes, these things are true. However, these are macro measures not micro measures. They ensure the system is working as a whole; these laws do nothing to ensure that a district is meeting the needs of an individual child. It is not enough to say to a parent that district children are advancing, but sorry, the IEP for your child does not ensure a free and adequate public education. Each parent and child count, so to undermine the system supporting their right to challenge a district premised on the notion that the overall system as a whole now has greater accountability simply is insufficient. Civil rights are there for the individual. It is not enough to argue that we are meeting the needs for some percentage of individuals; the system is there to protect each individuals right to an education.

Unfairly Tilting the Balance of Power

After reading AASA’a RSEDP, I walked away with the strong suspicion that AASA was trying to place its thumb heavily upon the balance of power that currently exists between parents and districts. The proposal seeks to strip parents of the right to representation during mediation. While I know lawyer-bashing is an American past-time, lawyers and advocates serve an important role in special education mediation. Keep in mind what such a mediation would often look like. During mediation, a highly-trained district office administrator, many of whom who hold doctorate degrees in education or more specifically special education, would be facing a parent who is generally lacking in knowledge about education in general and also special education law. There is a gross mismatch in terms of understanding of the system and its rules and regulations. Such a situation literally invites district overreaching.

The AASA report states the use of attorneys has limited the effectiveness of mediation because their presence “complicates and compromises the outcome of mediation.” I was interested in following up on this quote and the context in which it was given but was unable to do so because the footnote is incorrect. It states the author of the quote is Mueller and states she is cited at 58. She is not. She is cited several times in the report, but the articles as cited are not accessible unless one is a subscriber to a service. That said, what attorneys provide is knowledge of their client’s rights. If advocating for their client “complicates and compromises the outcome of mediation,” then I would argue the suggested outcome was not a fair one for the parent or, more importantly, the child.

Given the above, it appears that AASA basic proposal is that its members should enter mediation with knowledge and authority while parents should not. They believe that when parents have knowledge of their rights through advocacy that it only complicates the process. Our disabled children deserve a better philosophical approach then AASA is offering here.

A Solution in Search of a Problem

A final issue of mine with the proposal is that it is a solution for a non-existent problem. While the proposal attempts to paint due process hearings as a major source of problems for school districts, the report’s statistics clearly show that DPHs are not. The statistics given here were collected by AASA for use in this proposal. 200 randomly selected school superintendents were surveyed about the impact of the due process hearing system on their respective districts. Of those 200 superintendents, 99 reported that their district had not been engaged in a single due process hearing during the last 5 years. 29 reported having one due process hearing in the last five years, 44 reported having between 2 and 5, 14 reported between 6 and 10, and 6 had 11 or more.

The reality is that when almost half the respondents do not report a single DPH and of the remainder, 3/4 had been involved in less than 5, this is not a significant issue. Also, keep in mind when reading these statistics that AASA did not ask whether the district had prevailed, lost, or had a mixed ruling of losing on some and winning on some of the issues. While it is true that districts prevail more than they lose, a large number of these DPH cases were cases where the parents prevailed because the district involved was not doing its job.

Based on this reasoning, districts are facing a very small number of cases in which the parents do not have a legitimate issue of contention with the district’s proposed IEP or implementation of an actual agreed upon IEP. Also, just because the district won (or the parent for that matter), does not mean that there was not a legitimate question that needed to be resolved. Thus, doing away with DPHs when there are so few of them across the nation is a solution for a problem that does not exist.


I could go on with other arguments, (effect on the court system, the idea that stress on school personnel is a valid reason to lessen disabled children’s civil right, etc…) but the above should be sufficient to show that AASA’s proposal is flawed and should not be followed. Our disabled children need protection. One only needs look back to the system that existed prior to IDEA where only 20% of our disabled children were even being educated to know that IDEA and its protections serve an important purpose. IDEA is an important civil rights tools and should not be watered down based on the flawed reasoning displayed in RSDEP.

For another thoughtful criticism of this proposal by Mary Richard, a special education attorney, click here.

Gregory R. Branch is an Orange County attorney who practices in the area of special education. If you are having a dispute with your local school district, please call him at (714) 856-1166 or email him at




OCR received its greatest yet number of disability complaints

The federal Office of Civil Rights (OCR) has just released a new report, Disability Rights Enforcement Highlights, and it reveals among other interesting findings that during the three year period from 2009-2011, OCR received its greatest yet number of disability complaints. From 2009-2011, OCR received over 11,700 disability complaints, which comprised 55% of the total overall complaints received. The other 45% of the claims received were related to other areas of OCR enforcement in areas such as national origin, race, age, and sex.


Disability Rights Enforcement Highlights

Based on the report, it is clear that the vast majority of disability complaints were in the area of FAPE, Free and Appropriate Public Education. FAPE questions concern whether a district has offered a special needs child an educational program from which the student can obtain at least some minimal benefit. If not, the student has been denied FAPE. Of the 11,700 disability complains, 4678 were devoted to FAPE questions, or roughly 40%. Other high complaint areas were exclusion, retaliation, and academic adjustment. During this three year span, the OCR launched 15 FAPE related investigations of its own.

Another important function that OCR noted it played over this same time span was protecting the educational rights of “wounded warriors.,” our nation’s soldiers who have returned home from battle with permanent injuries that qualify them for educational protection. OCR noted that often these former soldiers are not familiar with the educational protections provided for them under federal law.

Similarly, educational institutions are not uniformly prepared to serve an influx of veterans with combat-related disabilities such as Traumatic Brain Injury and Post-Traumatic Stress Disorder. OCR’s technical assistance has informed veterans, educators and service providers from institutions such as the Veterans Administration about how the protections afforded to post-secondary students with disabilities apply to those returning from war.

Here are examples of some of the investigations based on complaints received by OCR.

Academic Adjustment: An HIV positive student alleged that his college discriminated against him by dismissing him from its medical office technology program. One of the required classes for it mandated that the students draw blood from one another, and the school dropped the young man due to safety concerns. In order to resolve the complaint, the school agreed to re-enroll the student, consider the student’s request for the academic adjustment of not having other students draw his blood, and provide the college’s staff with training on the necessity of providing academic adjustments to disabled students.

FAPE: OCR facilitated Early Complaint Resolution where parents alleged that a school district had not faithfully implemented their child’s IEP (individualized educational program) who qualified for services due to a mood disorder. Based on these efforts, the district agreed to schedule an IEP to discuss the parent’s concerns and to provide notice to the teachers of the requirement that they implement the IEP.

Harassment: Parents filed a complaint based on harassment they alleged their student had received due to a disability related body odor issue. The child had been previously diagnosed due to Fragile X Syndrome, ADD, Asperger’s Syndrome, and Tourette’s Syndrome. The complaint alleged that based on the body odor issue, the student had been detained by school staff who made her take a shower prior to attending class, had staff spray air freshener on her in front of other students, and be sent home prior to the end of the day due to her body odor. After OCR facilitated Early Complaint Resolution, the school district agreed to train staff regarding the student’s disabilities, enroll the student in its Senior Life Skills course, offer weekly social work services, and assist the student in finding community employment.

Principal who degraded special education student as “psychopath” retains job

Principal of Oxford Area High School

Dr. Dave Madden (credit

(Oxford, Pennsylvania: a suburb of Philadelphia) Despite being caught texting and emailing comments that degraded a special education student at his school, the Oxford Area School District, a suburban Pennsylvania K-12 district, voted to reinstate the principal of Oxford Area High School on a 6-3 vote. Dr. David Madden had been placed on suspension due to written comments he made regarding a bipolar special education student. At the board meeting following the vote, parents reacted angrily to the decision. Parents discussing the issue had tears in their eyes as they described Dr. Madden’s comments as hurtful and insensitive.

The issue surfaced during a March IEP for the emotionally disturbed student. During the IEP, the student was represented by Lisa Lightner, a special education advocate employed at the Arc of Chester County, a program which provides services to disabled people. Ms. Lightner became bothered when she saw two administrators texting during the meeting. She stole a quick look at the Assistant Principal’s phone and saw that the text was from Dr. Madden, who was also seated at the table, and that it began, “F&!@ this manipulator.”

Ms. Lightner reported the incident to her supervisor. Based on the incidence, Arc instituted a Federal Educational Rights and Privacy Act (FERPA) request for all records related to the student. Unearthed in this material were other derogatory messages about the emotionally disturbed student specifically and special educations students in general; all the emails were written and distributed by Dr. Madden via his district email account. In these blasts, he called the student a “psychopath” and expressed concern that the student could be another “Hinkley, Booth, AND Oswald.” (emphasis mine). Regarding special education students generally, he wrote that special education students, who he referred to as “the guilty people,” have more rights than “the innocent.” He went on to state, “Amazing world we live in and equally amazing that people are afraid of lawsuits. I say bring them on.”

Despite all this, the board voted not to fire Dr. Madden, but he has to meet certain stipulations. First, Dr. Madden is no longer be allowed to work with special needs kids. Second, he is being required to undergo a psychiatric evaluation. Third and finally, Dr. Madden is being required to undergo substance abuse testing. These measures have done little to soothe over harm caused by his comments. In the aftermath, the school’s special education director, Jenny LeSage, quit rather than continuing to work under Dr. Madden. Ms. LeSage was quoted by saying,

Why would you have an administrator in a building where you basically say we don’t want you to have anything to do with 200 kids in the building? It’s the dumbest thing I ever heard in my life

In addition, many parents are outraged over the incident.

When concerned parents showed up to voice their disapproval, the board basically attempted to silence their opposition. Parents and concerned citizens were not allowed to mention the administrator by name. Further, questions brought about the board’s decision were left unaddressed. Ironically, because Dr. Madden degraded the special education student, the board had to meet to discuss paying out a settlement of between $200,000 and $250,000. It looks like the Dr.’s desire for lawsuits is going to come true.


Bill adding family considerations to special education factors weighed in NY

As reported in the NY Times,Governor Cuomo of New York is deciding whether to sign a bill that would allow parents and schools to consider a child’s family background when making placement decisions for a special education child. The bill has already passed both branches of the legislature, and it is supported by religious groups which say many religious students are not prepared for the daily reality of life on our nation’s public school’s campuses. Opposing the bill is New York City’s Mayor Bloomberg, who argues that the language is too broad and could cover all kinds of considerations that are not important to a child’s education. Further, some critics feel the bill, if signed, will cut against the grain of the statutory intent of the IDEA, for which have students in the less restrictive environment and not segregated from their typical peers.

As is true of most federal law, states are free to offer greater protection to individuals than is offered by federal laws, they may not offer less though. If the bill passes, it could lead to other states putting into place such laws.

Mario Cuomo

If schools could have IEPs…

It has come to be my belief that IEPs are used far too infrequently. We have limited ourselves by only applying IEP’s to children. There are so many other places in life where they might be appropriate. I would like to suggest that some schools might benefit from having an IEP that sets in place goals that assist them in helping special needs children. I’m not suggesting that all schools need such a document, solely the ones who present some significant processing disorder that inhibits their ability to correctly and adequately teach the special education children that are a part of their community.

While the more angry and embittered in advocacy circles might argue that such schools could be qualified under the emotional disturbance category; I believe the correct qualifying condition would be to place such schools under the visually impaired category. The federal definition of “Visual impairment including blindness means an impairment in vision that, even with correction, adversely affects a child’s educational performance. The term includes both partial sight and blindness.” 34 CFR 300.7 (c)(13). If a student is found to have an impairment, the Individualized Education Program (IEP) team must also determine whether the student has a need for special education.

It is fairly clear that while many schools have a vision that includes proper educational services for special education, other schools seem to have a disability that prevents them from seeing that these children, given proper support, can receive an excellent education and go on to lead productive lives. Given this, as a society, we need to address these issues by providing these vision impaired schools a proper IEP.

Following are some suggestions for goals. The list is not inclusive, and I encourage readers to suggest additional goals. Since an IEP is a living document, as such proper goals are determined, we can revisit our IEP and add them.


Long Term Goal for Articulation/Intelligibility: Given a structured or unstructured educational setting, School will increase meaningful communication interactions by articulating a clear vision of inclusion for special education student within its educational setting to 100 % over 4 consecutive trials as measured by parent/advocate observation, other informal assessments and data collection.

Short term: School will use appropriate phrasing (pitch, volume, rate, stress) during IEP inclusion meetings or conversation in all trials.


Long Term Goal for Fluency Awareness/Self-monitoring: Given a structured or unstructured classroom setting, School will increase awareness of own speech production by describing characteristics of fluent and dysfluent speech by school personnel with 100% accuracy over 175 consecutive trials.

Short term objectives/benchmarks: Evaluate speech of self and others as it regards the rights of special education students.


Long Term Mathematics Goal: School will develop number sense sufficient to understand that funding special education is not encroachment,; it is dispensing dollars to help student have access to the curriculum that is offered.

Short Term Goal: As observed by parent/advocate, School will provide sufficient resources to fund an educational program meeting the needs of special education children.


Long Term Goal for Social Skills: School will demonstrate appropriate use of conversational manners.

Short term objectives / benchmarks:

1. School will demonstrate understanding and use of appropriate tone of voice and volume with 90% accuracy given situational cues.

2. School will formulate single or multiple sentences on a given special education topic with appropriate and clear meaning and increasing accuracy.


Long Term Goal for Organization: School: School will demonstrate ability to complete work by delivering the items agreed to in IEP’s.

Short Term Goal: Through observation by parent/advocate, all areas of IEP’s will be fully delivered without exception.


Long Term Technology Goals: School will proactively ensure that all special education students have access to the technology necessary to benefit from their educational experience.

Short Term Goal: As observed by parent/advocate, School will provide modern technology and software that is designed to meet student instructional needs in 100% of cases.


Long Term Goals for Transition: School will transition from an adversarial role in dealing with parents to one in which parents are equal partners at the table with a wide range of experience in helping their children.

Short Term Goals/Benchmarks: School will receive training to better understand the role parents within the IEP process. As measured by parents/advocates, School will demonstrate increased cooperation in IEP meetings during 5 out of 5 meetings.

Once again, I encourage readers to suggest their own goals. I hope to garner enough to create a second blog posting with the entries.

Some suggestions for IEP goals when your child is bullied

I am currently in the process of writing an ebook on bullying. This explains the sudden focus of my blog almost exclusively on bullying issues. This modified portion of my book focuses on IEP goals parents should consider if their child is experiencing bullying at school. As we all know by now, special needs children are bullied 2 to 3 times more frequently than their typical peers. As I have mentioned in previous articles, one of the first steps that the parent of a special needs child should take is to request an IEP meeting.

The following are some IEP goal areas and interventions that can directly or indirectly help address student bullying and should be considered at that meeting.

  • Teach to whom the child should report: A child who is experiencing bullying should be provided with a contact person at the school to whom they are to report any further bullying. A goal should be included that the child can identify the person to whom they are to report bullying. Simply possessing the knowledge that there is someone on campus charged with protecting them if bullying occurs can really increase your child’s feeling of personal safety and empowerment on campus.
  • Communicate the difference between tattling and reporting: A goal can be implemented that teaches your child the difference between tattling (bad) and reporting (good). Tattling is telling on someone for the sole person of getting someone in trouble. Reporting is the disclosure of information for the purpose of preventing danger to yourself or someone else. Students should understand that when they are bullied, telling an adult is not tattling but is reporting and necessary.
  • Help other children understand: A goal for the school or class can be implemented that teaches children about a particular disability or need for assistive technology. Children who understand why children are “different” are more likely to be understanding of that difference.
  • Increase self-knowledge: It is important for children to understand their own disability. Self-awareness can increase self-esteem as children learn to appreciate what makes them different and recognizing the work they are doing to be successful. In addition, understanding their own disability will also increase their awareness of how their disability can work for or against them in the social situations they encounter.
  • Teach your child to say “No”: Saying “No!” and meaning it is an important lesson for all children. Children need to be taught how to assertively advocate for themselves when someone is trying to hurt them.
  • Encourage friendship skills: Children who are bullied are more likely to be loners. The kids on the playground who are always off playing by themselves. By teaching your child the values of friendship, and the rules of friendship, they are more likely to develop positive friendships at school and be less likely to become the targets of bullies.
  • Be a part of a social skills group: In social skills groups, children receive invaluable feedback from their peers about their social skills. This occurs in a positive way, rather than the usually harsh ways that kids teach other kids that their behavior is not in line with the norm. Further, as they learn these skills, the friendships discussed above are more likely to develop.
  • Increase pragmatic skills: Pragmatics is about the unspoken rules of social language. Learning to take turns in speaking, paying attention the listener’s body language, speaking differently to different people are all examples of pragmatics. A poor understanding of pragmatics can be a cause of bullying.
  • Allow early exit from class: Where children change classes during the day, a way to reduce the risk of bullying is to allow your child to leave a couple of minutes early so that they can get to their next class without having to interact with all the general education population.
  • Have an aide shadow your child: In more severe situations a parent can request an aide shadow the student when they are out of the classroom. It may even be appropriate to request a one-on-one aide so that the child is never on campus and unsupervised.
  • Consider a change of placement: Finally, a change of placement may even be in order. With regard to this specific issue, the court decisions in this area conflict. For a particularly thoughtful and well-written decision in which it was held a child was denied FAPE (a free and appropriate public education), read “Federal Judge Holds Bullied Special Education Student Denied FAPE.”

Also, I welcome additional suggestions. Please email me at

If your child is experiencing bullying at school, please contact my office for a consultation. You may use the email address above or call me at (714) 856-1166.