Tuesday, November 28, 2006

Difficulties in Special Education – The Adversarial Process


In the November issue of Leadership Insider, Christopher Borreca looks at the current state of special education and specifically at the adversarial aspects of IDEA (The Individuals with Disabilities Education Act). Mr. Borreca is a member of National School Boards Association Council of School Attorneys and has extensive experience with IDEA and other special education legislation.

Mr. Borreca laments the path taken by many parties seeking the promise of a free appropriate public education (FAPE). That path is the process of adversarial confrontation which can develop when educators and parents disagree on the educational programs offered to their children. As Borreca points out, “the real problem may not reside in the emotionality of the issues, the expenditure of limited public dollars, or the behavior of zealous advocated who defend their clients’ positions. The real dilemma may be the very system itself [IDEA], which was created to assist in obtaining adequate services for students with disabilities but which has placed school and parents into perpetually adversarial relationships.

As the 9th Circuit Court of Appeals noted in a 1997 decision, ‘Litigation tends to poison relationships, destroying channels for constructive dialogue that may have existed before the litigation began. This is particularly harmful here, since parents and school officials must – despite any bad feelings that develop between them – continue to work closely with one another. As this case demonstrates, when combat lines are firmly drawn, then child’s interests often are damaged in the ensuing struggle.’”

The gray area surrounding “appropriate public education” is a deep pool which can contain vastly different interpretations and can lead to many conflicts. As the 6th Circuit Court of Appeals has said – “The act required that the … schools provide the educational equivalent of a serviceable Chevrolet. … We suspect that the Chevrolet offered to the student is, in fact, a much nicer model that that offered to the average student. Be that as it may, we hold that the board is not required to provide a Cadillac [as demanded], and that the proposed IEP [Individual Education Program] is reasonably calculated to provide educational benefits to the student and is therefore in compliance with the requirement of IDEA.”

The gap (between the Chevrolet and Cadillac) can lead to confrontation and anger. In that area, continued communication between educators, parents, and board members must be paramount to build an understanding of what is, and what is not possible. In every case, the primary focus of the school is the student and his/her achievement – that is where the educators and the parents are often “so close and yet so far apart in doing what is in the best interest of the student.” Rather than “throw all of the rocks that can possibly be gathered at the school officials” it would be better to engage in a cooperative process that allows for the emotional context to play out in a safe environment – in Birmingham that includes the organization called Friends of Different Learners. It is only one example of how communication and support can produce great results and ensure the promise of IDEA. As Borreca points out, if the due process of IDEA is changed from the legalistic model, we may find a system that provides “trust, cooperation, shared responsibility, and understanding between schools and parents.”

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