The Dark Underbelly of Your American School District part 7: How the Justice System Fails Kids (cont’d)
How does the law fail our kids? Let me count the ways.
At least 30% of the average classroom are neuro-atypical learners. Legally, they have learning disabilities. Yet, only 12–15% of kids nationwide receive special education. That lower number also includes kids with other types of disability. The Child Find law is not working. It has no teeth. The school district’s obligation to “find” kids with disabilities can be met with simple fliers and public service announcements. Federal law does not require screening of all students for learning or behavior disabilities.
If you ask for your child to be assessed for a learning disability, the legal precedent is clear that the school cannot delay doing the assessment by offering in class support first. They are allowed to offer that support while assessment is underway, but they cannot delay the assessment. However, parents don’t know this. It is very common for schools to use parental ignorance of the law to put off a concerned parent by offering in class supports.
Many children with neglected learning disorders will develop school related anxiety. This can often result in missed school days. The district can then say that the child is behind not because of a disability, but because of missed days. In court you would have to prove that it’s related to the learning disability.
If you’ve been homeschooling your child, because they weren’t getting what they needed at school, then the school may say that the child doesn’t have some skill “because they have never been taught.” This is also used if the child was at a private school. Again, the family must prove that the child has had appropriate instruction.
If a parent takes a district to court, in most states, the burden of proof is on the parent. That means a family must keep detailed records and hire education professionals, lawyers, and psychologists to prove that the district has failed to meet their obligations to the child. This is very expensive and logistically challenging. The district however, has a fully paid staff of lawyers and professionals that they can call on at any time. If the finding is in favor of the district then a family is left with a monumental bill. This in itself can cause many, perhaps even most, families to give up on the schools. Furthermore, districts will use their lawyers to intimidate families. Well-off and middle class families will simply find and pay for their own tutors or private school. Many mothers change careers to learn how to teach their kids. They leave jobs to homeschool. The poor have little recourse.
Families who proceed to due process filing face numerous other hurdles. In CA, cases are presided over by Administrative Law Judges who are paid by the state. They are not required to have any educational background in learning disorders or special education. Education lawyers will warn parents that the judges often find for the district. From 2008–2019 53% of cases were found in favor of the district, 14% in favor of a student, and 32% were split decisions. If you look at the data in greater detail, you find that some judges rarely find in favor of students.* Any parent who files a due process case is risking financial ruin. You don’t take on that risk unless your child has profound need. Yet, only 14% of those cases win? What’s going on?
One primary problem is the fact that many of the participants in such a case are relatively ignorant of learning disabilities. Add to this the fact that the burden of proof is on the parents and things can often unfold something like this:
Let’s say you have a child with dyslexia. The family is arguing that the services provided are not addressing the child’s needs. One of their points is that the child’s writing is well below expected for age and IQ. What many don’t know is that writing problems are a part of dyslexia for the vast majority of kids. So the parents are arguing that the kid needs explicit writing instruction. But the judge doesn’t know that writing deficits are part of dyslexia. And maybe your educational lawyers don’t know this either. So they don’t put an educational psychologist on the stand and ask them to explain for the court how the writing problem is part of the dyslexia and then also cite evidence. So the judge doesn’t know the connection and the proof hasn’t been presented and therefore the finding is in favor of the district.
In addition, there are no reviewers of the reviewers. In some states it has fallen on special education lawyers to try to remove or censure case reviewers who have never found in favor of a child.** In Texas, the education department collaborated in denying access to special education students state wide through the creation of random caps on referrals and intense pressure on educators to deflect and deter special education students.*** Federal intervention ordered the Texas Dept. of Education to find and remediate all the deflected special education students. However, a follow up report in 2024 by the Houston Chronicle showed little had been done for these kids.****
The failure of Child Find, deflection by schools, the ignorance of judges, lawyers, and teachers, the burden of proof on parents and the huge financial risk involved for them, the well-staffed school districts arrayed against families, and the tendency for judges to “find for the district,” are just a few of the obstacles to fair legal recourse that families face.
Next week: Your Trusted School District Is Gaslighting Parents
I’m working on a book about special education and seeking families, teachers, and school professionals with stories to tell. If you’ve been through this struggle, I’d love to hear from you. Everything will, of course, be confidential. You can reach me at: 241kcawley@gmail.com
Follow me on Substack: Kathleen Cawley for Navigating Modern Parenthood
*California Special Education Law website data table 2008–2019.
**Schools Beat Back Demands For Special-Ed Services ,Daniel Golden, Wall St. Journal, 7/24/2007.
*How Texas keeps out tens of thousands of children out of special education, Brian Rosenthal, Houston Chronicle, 9/10/2016.
*** Under Federal Law, Students Denied Special Education Could be Entitled to Makeup Services: But many in Texas aren’t getting it, Shelby Webb, Houston Chronicle, 1/10/2024
