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I am currently in the process of preparing for a due process hearing and still shaking my head at how we got here.

First, though, I need to tell you about Sara. Sara is a beautiful 11-year-old girl who is deaf. She also suffers from multiple medical issues which require her to have a feeding tube and a broviac central line connected to her heart. She currently attends a special day class where she enjoys learning and being part of the school community.

Her sole mode of communication, in essence her voice, is American Sign Language (ASL).

The two main issues the school district is fighting us on go to the core of Sara’s communication:

  • Does the sign language interpreter for student have to be qualified?
  • Allowing the parents to communicate with the interpreter. Yes, you read that right.

How are these even issues? Of course the sign language interpreter has to be qualified. Her sole purpose is to translate the spoken word to sign language so this beautiful little girl, who happens to be deaf, can access her education.  And of course her parents want to chat with the interpreter from time to time to ask those basic questions like “How was Sara’s day?”

Although the IEP clearly states, a full-time American Sign Language interpreter, the district is providing two unqualified aides, calling them signing assistants.

Can you imagine if this was a Spanish or English Interpreter? In any world outside of education would an interpreter be provided who was not fluent in the languages they were interpreting?  Of course not. Also, sign language is the only mode of communication this little girl will ever have. Unlike our English language learners who slowly develop the appropriate language skills, Sara will never hear. She will always use sign language. For her schooling, she will always require an interpreter.

Of further concern is the district’s unwillingness to allow parents to talk with the “signing assistants” so they can learn the new signs Sara is working on. There are many different ways to sign the same word or action and it is important for the school staff and parents at home to use the same signs.

Apparently, her parents’ requests are a little too much for the school district, so we have ended up here… three weeks from going to trial.

Every couple of years I get a random case that ends up at trial for no reason. The last time I was in a trial it involved an eligibility issue. All we wanted was for the school to provide an IEP to address the student’s attention and sensory deficits. This included a reasonable request for sensory breaks. It would have cost the district no additional money but would have allowed us to monitor the student’s progress and make sure he was accessing his education. The district decided to go to hearing instead, where it tried, unsuccessfully, to show the student did not require an IEP.

So here I am again, facing another school district who has chosen to fight a family instead of providing what the law requires: an education to a young girl.

I understand there are many cases where there is a legitimate dispute over what a student needs to access their education. I rarely end up in trial on these cases. Instead, we work things out.

After several failed attempts to reach a settlement, I am now preparing my witness list and getting our evidence together for hearing.

I will spend around 100 hours preparing for and attending the hearing. The district will pay its legal counsel to do the same.  And, as you can imagine, lawyers are a lot more expensive than hiring a qualified sign language interpreter.

And all for what? So they can explain to a judge that this little girl does not require an interpreter who knows sign language?  What do you think the judge will think? I think I know.

These types of cases frustrate me and leave me shaking my head. This is not the battle we should be fighting. This is not the disagreement we should be having. Regardless, I will do everything I can to protect Sara’s civil and educational rights.

There is no way we are going to stop until Sara has a qualified interpreter and her parents are able to freely communicate with them.

 

 

Richard Isaacs, Attorney and CSNLG Founder

With the start of the 2017-2018 school year well on its way, I have noticed more due process filings by school districts against families.

A due process hearing means either party, in this case, the districts, are asking the court system to intervene and make a ruling.

While this might sound alarming at first, it is often legally necessary for school districts to take such drastic actions. The law is clear that when parents request public funding of independent educational evaluations (IEE’s) the school district must fund the assessments or file for due process to show their own assessments are appropriate. The legal standard for assessment compliance is low and the courts are routinely finding district assessments comply with the law.

As such, school districts are filing more often.

Interestingly, and unfortunately, districts sometimes file for due process even when they know their assessments are not defensible. There is a clear strategy for them here: It helps them enter into a settlement agreement to fund the requested IEEs and thereby insulate themselves from liability. They add waiver language to the proposed agreement.

School districts are also filing more often to defend the appropriateness of their IEP offer. While the law merely states the school district may file to enforce its IEP, court decisions have recently come out holding districts liable if they do not file for due process. The ruling expects them to seek judicial intervention in overriding a parent’s lack of consent to necessary educational services. In other words, if parents do not fully consent to the proposed IEP, and the District believes the services are necessary, they are required to file for due process.

This is an unfortunate development in the law because it now elevates an IEP dispute to the litigation level. Parents are practically forced to hire an attorney to defend against the school district’s lawsuit.

Sadly, a recent court case has also called into question whether families can be represented at the administrative court level by educational advocates. For families who could not afford an attorney and advocate is a much less expensive option.

This appears to no longer be the case.

It is strange that the state of California is taking such an aggressive stance against parents who have children with special needs. With the increased filings against families, the shrinking of options parents have to defend themselves, California is moving backward.

If your school district ever files for due process against you it is important to seek legal advice on how to move forward. Regardless if you hire an attorney or not, you should at least contact an attorney who specializes in special education law and obtain a clear understanding of your rights. The Office of Administrative Hearings (OAH) has a list of low cost and free attorneys you can use to find a law firm that you feel comfortable working with.

As always, we are happy to help too.