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Stanford Breakfast Club-Special Needs

The Civil Rights Act for Children who Have Special Needs
Or
The Civil Rights Act That No One Has Ever Heard Of

(Jennifer Guze Campbell gave this speech to the Orange County Stanford Breakfast Club on November 6, 2013)

 

Beginning in 1975, the Congress of the United States began passing civil rights acts focused on education. These acts grew out of the civil rights movements that had been sweeping the country in the ’60’s and ’70’s. The educational rights of children who are handicapped were among the last to be recognized, but recognized they finally were.

Before 1975, if a school-aged child had a learning disability, the child’s school district would either attempt to have the child institutionalized or would simply send the child home as uneducable. Before 1975, approximately one million school-aged children with learning disabilities were not in school in the United States.

In 1975 and the years following, Congress and the legislatures of the various states passed civil rights education acts to protect children from their local school districts. School districts historically, and still today, ignore the civil rights of children who have special needs.

If you take nothing else away from this presentation, this is the single most important concept: School districts are at odds with children who have learning disabilities. To this day, school districts continue to ignore the intent of Congress and the state legislatures with regard to special education civil rights.

The governing civil rights law for children who have special needs is called the Individuals with Disabilities Education Improvement Act of 2004. It is commonly called the IDEA. This law is the master federal Act that governs the education and civil rights of students with learning disabilities. Each state legislature has mirrored this federal legislation in their state education codes or has created an stronger version of the Act for the students in their state.

The IDEA is a civil rights act that requires school districts to give children with learning disabilities a free appropriate public education in the least restrictive environment.

In order to receive the benefits of the IDEA, a child must demonstrate that he or she is eligible. The categories of eligibility are:

1. Autism
2. Deaf-blindness
3. Deafness
4. Developmental delay
5. Emotional disturbance
6. Hearing impairment
7. Intellectual disability
8. Multiple disabilities
9. Orthopedic impairment
10. Other health impairment
11. Specific learning disability
12. Speech or language impairment
13. Traumatic brain injury; and
14. Visual impairment, including blindness

 

The IDEA requires that school districts fully assess children who have special needs, provide an individualized education program for each child, and then provide the necessary services for each child so that the child may benefit from his or her education.

Unfortunately, nearly each and every school district has acted to eviscerate some or all of the rights of its students with learning disabilities.

Why is this so? It’s the unfunded mandate-in other words, money. The Congress and state legislatures underfunded or simply didn’t fund the legislative mandates that the civil rights education laws provide for students who have learning disabilities.

Parents of children who have special needs do not band together to elect school boards. School boards are not beholden to parents of children who have special needs. School boards fear that they may have to spend some of the general fund monies available for typical students to support students in special education under the terms of the IDEA. School boards then hire special education administrators whose job it is to see that the school districts don’t spend much money on special education.

As you might guess, children with learning disabilities may require significant additional resources to be able to benefit from their educations. A child with autism may require behavior intervention services, significant communication services, significant occupational therapy services, as well as a low student-to-teacher ratio in class. These services for a single child may add up to between $40,000 and $80,000 per year. The school boards, in order to avoid incurring this type of cost, simply deny those services to the overwhelming majority of students who have special needs.

The federal law, the IDEA, does not provide for punitive or monetary damages to a child who has been denied services by a school district. If the parents of that child sue their child’s school district, then all the parents can receive is the services to which the child was entitled in the first place.

Other civil rights acts are typically enforced by a federal agency that is focused on upholding an individual’s rights under the act. By contrast, the IDEA calls on the parents to enforce the Act, providing what lawyers like to call the right of “private attorney general” for the parents. Most parents of children who have special needs don’t begin realize that they have been tasked with the enforcement of their child’s rights by Congress.

School boards did not get elected by the public to spend what the Boards consider to be a disproportionate share of their scarce financial resources on children with special needs. This tension between the school boards and the civil rights of children with special needs creates a unique relationship between the Boards and the parents.

If you go to the Department of Motor Vehicles to get a license, you take tests, you pay money, you fill out forms, and you get a license. If you go to the Building Department of your local city to get a building permit, you fill out forms, you pay money and you get your building permit.

If you have a child with special needs, you get assessments for the child, you fill out forms, you go to meetings with school officials, and you do not get the services you need for your child. It is one of the few areas in our society that is so systematically dysfunctional.

As a result, parents hire my firm, the Special Education Law Firm, to enforce their children’s rights with regard to the IDEA. We constantly negotiate with school districts to provide for each child what he or she is supposed to receive, by law, from the school district. By and large, we are generally very successful in achieving a free appropriate public education in the least restrictive environment for our clients with learning disabilities.

It’s estimated that for every 200 children with learning disabilities who are denied appropriate services, only one child gets an attorney or an advocate to enforce the child’s rights. If the school district loses at hearing, then all the school district has to provide is what the child was entitled to in the first place. There are no penalties. It’s a simple economic decision.

Lawyers in general do not flock to this area of the law; there are no monetary damages to entice them. Typically, parents must pay the going hourly rate for an attorney with the faint hope that their legal fees will be paid by the school district if the parent wins at hearing. Most parents cannot afford to pay the hourly rate for most lawyers.

This situation helps to explain why so few parents are able to enforce their children’s rights to receive the necessary resources to overcome the children’s learning disabilities.

Let me give you a few examples of children with learning disabilities and how they were helped.

We helped one family where the child was self-injurious. The school district, which shall remain nameless per the settlement agreement, placed the child in a closet so that he would not disturb the other students while he injured himself. We were able to negotiate an aide for that student to protect him during the school day. We also obtained additional educational resources for that child so that he could benefit from his education.
We helped one family where the child was non-verbal and had no way to communicate. As you can imagine, the child was frustrated with his inability. We were able to persuade his school district to provide sign language, a hand-held dynamic device for the child to use in making requests, and significant speech therapy for that child. The child, at age 8, began speaking in three word sentences. We were able to remove the sign language services and the dynamic device and focus on providing speech therapy for the child.

We helped one family where the child was violent toward herself and others, hearing voices, and not successfully benefiting from her education. The school district was persuaded to place the child in a residential treatment center in another state with appropriate medications, clinical therapy, and 24-7 monitoring. She managed to matriculate successfully, win the state poetry competition, return to her home-instead of an institution-upon graduation, and is taking classes at a local junior college.

We helped one family where the school district wanted to place an autistic child with significant behaviors, but no intellectual disability, in a mild-moderate special day class with children who had significant cognitive problems. After appropriate behavior therapy for the child, we were able to persuade the school district to place the child in the school district’s gifted-and-talented program, with significant behavioral support. To this day, that child continues to successfully matriculate. He is the only child who is special-education-eligible in his classroom of 30 gifted students.

Today I have tried to give you an overview of the federal civil rights law for children who have learning disabilities. There is an ongoing struggle for full inclusion of children with learning disabilities so that they are not segregated, discriminated against, and marginalized in their school environment. The discrimination that goes on against these children is generally out of sight and out of mind for the general public. Unfortunately, it remains one of the last area of institutionalized discrimination in the United States.

Are there any questions from the audience?

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