Using an Advocate in the Practice of Special Education Law

What is an Advocate?

"Special Education Advocacy is a profession comprised of a diverse group of people who work as independent private consultants or under supervision of a licensed attorney or in a law firm, in a public interest law center or other nonprofit organization; or under the auspices of a parent training and information center or advocacy center. . . . An Advocate has knowledge and expertise concerning special education and its applicable federal and state laws and works within the bounds of these laws. An Advocate protects the civil rights of children with special needs, their rights to due process, and their rights to equal access to equitable public school education. An Advocate remains current with applicable regulations and special education issues through continuing education and training." Some Assembly Required: Using Personal Advocacy Tools to Help Others, Missy Alexander, Siobhan Ponder, and Diane Willcutts. Published in Council of Parent, Attorneys and Advocates bound materials, 2010 Conference.

Advocates are professionals with training in special education and advocacy. Sometimes they are education professionals, such as teachers, diagnosticians, or school district administrators who have left the school to pursue a career in advocacy. Sometimes, parents with children in special education become advocates after years of working with their child’s school district. They may or may not charge fees for their services. Other times, advocates are simply individuals interested in children with special needs. Nonlawyer advocates are not required to have any certification. They do not have a license to practice law and they are not attorneys. They should provide their services according to the laws of Texas. Lawyers can also be advocates for children. The French word for attorney is "avocat." However, for the purpose of this paper, the term "advocate" refers to a nonlawyer.

An advocate is one who offers support, encouragement, direction, and comfort to the parent, and often, to the child. An advocate "focuses on the individual case or issue and assists families to resolve issues, the issues that are relevant to them." Introduction to Systemic Policy Advocacy from School Boards to the Capital, Dustin Rynders and Jeff Miller. Published in Council of Parent, Attorneys and Advocates bound materials, 2010 Conference.

An "advocate" is "a person who pleads on behalf of another, . . . a person who speaks or writes in support of some cause, argument or proposal." The New Lexicon Webster’s Dictionary of the English Language, (Lexicon Publications, Inc., New York, 1988).

More importantly, the advocate is someone who works along side of the parent to help the parent reach their goals.

Role of an Advocate.

The most important role of an advocate is teacher. Parents need to develop the skills they will need to continue to advocate for their child long after the advocate has gone. Parents must learn what the school can provide and what their child needs. Advocates help parents develop these skills.

The Effective Advocate, Mark S. Kamleiter, Published in Council of Parent, Attorneys and Advocates bound materials, 2010 Conference.

Some advocates can help evaluate programs for children with disabilities to determine what services and support systems meet the needs of a particular child. Advocates make recommendations about services, supports and special education programs. Some educational advocates negotiate for services. The Effective Advocate. p. 3.

An advocate should ensure that the school provides students with a "free appropriate public education" that includes "specially designed instruction . . . to meet the [child’s] unique needs . . ." (20 U.S.C. §1401).

Skills Needed by Advocates.

Advocacy is not a mysterious process. A quick overview of advocacy skills developed by Pete Wright is enumerated below:

1. Gathering Information -Advocates gather facts and information. They study the child’s disability and educational history. Advocates rely on facts and independent documentation to resolve disagreements and disputes with the school.

Learning the Rules of the Game-

Advocates know their local school districts. They know who makes the decisions. They understand that the A.R.D.C. is supposedly the forum for making decisions but advocates understand that reality and law are not one and the same.

Advocates know about legal rights under I.D.E.I.A. and Section 504. They know that a child with a disability is entitled to an "appropriate" education, not the "best" education, nor an education that "maximizes the child’s potential." They understand that "best" is a four_letter word that cannot be used by parents or advocates in education. http://www.wrightslaw.com/advoc/articles/advocacy.intro.htm.

Advocates know the procedures that parents must follow to protect their rights and the rights of the child.

Planning and Preparing-Advocates know that planning prevents problems. Advocates do not expect school personnel to explain rights and responsibilities. In fact, Advocates know that, if they are not familiar with the law, school districts will often quietly deny services. Advocates read special education laws, regulations, and cases to get answers to their questions. If they cannot find their answers, they ask an attorney.

Advocates learn how to use test scores to monitor a child’s progress in special education. They prepare for meetings, create agendas, write objectives, and use meeting worksheets and follow_up letters to clarify problems and nail down agreements.

3. Keeping Written Records -Because documents are often the keys to success, advocates keep written records. They know that if a statement is not written down, it was not said. Everything that an advocate wants recorded at an A.R.D.C. meeting must be placed in the deliberations or on a separate paper indicating disagreement with the A.R.D.C. decisions with a parent signature. Advocates make requests in writing and write polite follow_up letters to document events, discussions, and meetings.

4. Asking Questions, Listening to Answers -Advocates ask questions. When they ask questions, they listen carefully to answers.

5. Identifying Problems -Advocates learn to define and describe problems from all angles. They develop strategies. Advocates are problem solvers. They do not spend time blaming the school or the individuals in the schools.

6. Proposing Solutions -Advocates know that parents negotiate with schools for special education services. As negotiators, advocates use mediation/negotiation skills to discuss issues and offer proposed solutions. They seek "win_win" solutions.

Advocates give parents information about special education with regard to their child, and help them negotiate and resolve disputes. Advocates are not lawyers, and cannot give the same type of legal advice as attorneys. An experienced, well_trained advocate should help parents recognize when they should seek an attorney's services. Advocates attend ARD meetings with parents, explain evaluations and special education terms. They help advise parents on what special education services their child may be entitled to have the school district provide. An advocate needs to practice asking the school district personnel to explain what they are saying in plain English. They need to request that every acronym is unfolded into understandable terms that parents can understand.

They need to know about evaluations — psychological, educational, neuropsychological, psychiatric neurological—and what these evaluations measure. Depending upon a child’s unique disabilities, they may may also need to learn about related services such as speech therapy and occupational therapy.

Most importantly, an advocate’s job is to understand a parent’s frustration with the school district, and to turn that frustration into positive action. More than that, an advocate has to take a relationship that has broken down between the parent and the school, and start to rebuild that relationship in order for everyone to work together for the benefit of the student. No matter how valid a parent’s anger and mistrust for the school may be, that student still needs the school and the services the staff provides. The student needs to be able to come to school each day knowing that the situation will be a positive learning environment, where everyone is working toward the same goals, not looking for mistakes or covering things up out of fear.

An advocate’s role is to keep everyone focused on one thing - the student’s education.

See http://www.wrightslaw.com/advoc/articles/advocacy.intro.htm

Personal Qualities to look for in a Successful Advocate.

Advocates should behave in a professional manner, be well-spoken, and able to clearly communicate the parent’s concerns. They should dress conservatively. Advocates are assertive, not aggressive or belittling to the school staff or to the parent. They are not loud. Effective advocates project calm into an often tense relationship between parents and the school. An advocate should be empathetic, able to translate a parent’s concerns for their child into clearly defined requests that the school district can address. An advocate must be able to communicate an individual student’s needs to the school district, and then, make the school want to help that student reach their goals. Advocates must remain pragmatic, translating a student’s needs into a request that addresses the school’s needs as well. When it comes to a student getting the services they require, it is never a matter of "win-lose" for the school district, with the school losing. It is vital that the school administration be able to turn around and justify their decisions to their school board.

The most important skills of an advocate are understanding the needs of the school personnel and being able to answer questions from the school’s perspective. An advocate’s purpose is to help the school want to help the student.

According to Wrightslaw, researchers have found that most special education programs fail to confer adequate educational benefit to many of the youngsters they are designed to serve. The statistics are sobering:

74% of children who are unsuccessful readers in the third grade are still unsuccessful readers in the ninth grade. (Journal of Child Neurology, January, 1995).

Only 52% of students identified with learning disabilities will actually graduate with a high school diploma. Learning disabled students drop out of high school at more than twice the rate of their non_disabled peers. (Congressional Quarterly Researcher, December, 1993).

At least 50% of juvenile delinquents have undiagnosed, untreated learning disabilities. (National Center for State Courts and the Educational Testing Service, 1977).

31% of adolescents with learning disabilities will be arrested within five years of leaving high school. (National Transition Longitudinal Study, 1991).

Up to 60% of adolescents who receive treatment for substance abuse disorders have learning disabilities (Hazelden Foundation, Minnesota, 1992).

62% of learning disabled students were unemployed one year after graduation. (National Longitudinal Transition Study, 1991).

A meaningful education will help turn these figures around.  See http:www.wrightslaw.com/advoc/ articles/Emotions.html.

An advocate helps make certain that the student they represent does not become one of the above statistics.For an attorney practicing special education law, an advocate is a reflection of an attorneys law practice.

Suggested Qualifications and Training of an Advocate.

An advocate should belong to at least one organization that represents children with disabilities, and be active in that organization. Anyone can belong to an association, but without on-going interaction, there is no way to determine if an advocate is utilizing that resource for the benefit of the children they represent. Do they attend organization conferences, submit articles, speak at meetings? Are they active in their organization? Are they learning?

An advocate MUST receive some sort of continuing education. Laws change too frequently to allow for the 30 year veteran who gets by on what they knew back before the Americans with Disabilities Act was passed and the law that protected the rights of students with special needs was PL 94-142.

A degree in special education or substantial and continuing experience working in special education is vital to the advocate if s/he hopes to help parents understand the intricacies of special education terms, services, and laws.

Advantages to working with Advocates.

For an attorney, an advocate should be an asset. Here is someone who can attend ARD meetings with your client, answer a million questions, provide daily support, and be there for the client through many communications with the school, reviewing data, examining different programs, and providing the time-intensive services.

Meetings with schools can go on for hours, even days sometimes. The parent and staff may need to meet several times before any issues can be effectively resolved. An advocate can attend these meetings as often as possible, leaving the attorney free to address the one or two "legal" questions that may come out of a five or six hour ARD meeting. And, the cost to clients is greatly reduced.

An attorney can then effectively spend their time helping five or six students in a single day, when they could only help one or two previously, and the attorney can be in their office more of the time since A.R.D. meetings are generally held in schools within the various districts.

Parents can save the cost of an attorney by paying an advocate’s fees until such time as they need legal assistance, which allows the parent to receive more training and guidance from the advocate, all while having the security of an attorney in the background.

Most importantly, for the special education attorney who faces the prospect of litigation, the Advocate can testify. If only an attorney attends A.R.D.C. meetings and staffings, no one, other than the parent can testify as to what occurred in the meeting. If an Advocate attends, the advocate can provide valuable, credible testimony.

Heading off problems.

The biggest problem attorneys face when using advocates is relying on an advocate who is not qualified. There are a wide range of disabilities in special education, and while many of them overlap, some require very specialized and intensive knowledge. An advocate who understands one disability may not understand another. Very often the parent/advocate tries to relate the individual needs of their child to every other child. Advocates must understand that the most important word in the process is "individualized" and that some disabilities take specialized knowledge to address.

Attorneys who work with advocates need to know the limits of each advocate’s specialized knowledge, and utilize their skills accordingly. Advocates need to know when to recuse themselves from helping a particular student if they lack the education the disability requires.

Attorneys needs to be very careful before recommending an advocate to a parent. The personalities of the parent and the advocate must mesh well in order for them to be able to work together to help the student succeed.

Sometimes an advocate and an attorney will have different ideas on how to help a student. They must resolve this issue before trying to work out an appropriate strategy with the parent.

Everyone who is working with the child and his family needs to keep the goal of helping the student receive a Free and Appropriate Public Education in mind.

Stories/Examples

Brett S.

Brett S. is a high school student with several issues. First, the school has taken him and his parents to court several times for truancy issues. While the student is always at school on time, he has been late to classes during the day so often that his parents have had to pay several hundred dollars in fines to their local precinct court. The parents cannot walk their high school student to each class, and on top of this concern, the student is failing half of his core classes, and has taken summer school for the past three years. His parents engaged an advocate to help get the school district to test the student for special education.

The school agreed to place the child in a 504 program, and actively worked for several hours to discourage the parents from having their son tested for special education. Their reasons included a concern that the student may not even qualify for 504 after the testing is complete, much less qualify for services under IDEA. While their advocate pushed firmly for the student to be evaluated, she was not quite as confident as she would like to have been regarding the statements of the school district. Rather than misleading the parents or pretending to have knowledge beyond her experience, the advocate excused herself from the room, called the attorney and confirmed that the school district’s threats were, in all probability, without foundation, since the attorney had never seen this happen with any other student. The student needed services as clearly demonstrated by his grades and behavior, and even if he did not qualify for special education under IDEA, if the 504 plan was working, there would be no reason to deprive the student of those accommodations.

The advocate also attended the ARD meeting when the results of the evaluation were reviewed. While the school district did not find any learning disabilities or an emotional disturbance to explain the student’s difficulties, the parents did have an Other Health Impairment form completed by the child’s physician which described how the student’s ADHD was interfering with his ability to benefit from his education.

The advocate had reviewed the evaluation and the OHI form with the attorney prior to the ARD meeting. At the meeting, the school district psychologist still refused to admit the student to special education. The advocate calmly gave the school two options, either admit the student into special education based on his documented history of lagging grades and minor behavioral issues, or the school could pay for an independent evaluation. The psychologist left the room for a few minutes and returned, explaining that an independent evaluation would likely demonstrate some disability, and therefore the school would admit the student to special education under IDEA. The parent left the meeting with the advocate, who spent more than an hour explaining to the parent why the school district had suddenly changed their opinions and decided to admit the student to special education. A year later, the advocate attended the student’s ARD. His grades were up, and with minimal interventions, the student was succeeding academically, his truancy issues had disappeared, and he was working on career choices for college. The school now has a successful student who isn’t using their disciplinary resources or being taken to court. Brett has passed his TAKS tests and is ready to transition into a career path in law enforcement.

Stacy M.

After talking to one parent regarding a child’s disabilities, the advocate questioned both parents of Stacy M. regarding their daughter’s educational needs. Almost immediately, the advocate recognized that the student’s needs were extremely complex, since the child was (and still is) four years old, with multiple handicaps including a visual impairment and mental retardation. The advocate immediately contacted the attorney with her concerns regarding the child’s educational needs. The attorney attended all of the meetings, with the advocate providing some limited support in the background by responding to parent questions and occasional scheduling issues. Within two months, Stacy M. has an appropriate educational plan in place, and the attorney has remained in contact with the parents. Although the advocate made the initial contact with the parents, the attorney handled the case with relatively little contact with the advocate. For the school, they avoided a due process hearing and have provided the appropriate services for the student.  It cost the District no more than what they were originally spending on the student.

David B.

For David B., the parent first met with the attorney when he was in middle school. Through a due process hearing and afterwards, the attorney went to all of the meetings. David had more issues, and many of them were addressed by a settlement agreement between the parties. Among other things, the agreement provided for staffings (meetings with the parent and all of the teachers) and other actions which required an on-going presence. Rather than charging the parent for an attorney through this process, the attorney turned the matter over to the advocate. While the attorney remains overseeing part of the case, the advocate fields 90% of the parents' calls, goes to the majority of the meetings, and handles most of the concerns regarding the student on a daily basis. If necessary, the attorney steps in, otherwise, the advocate fulfills all of the needs for the student at the lowest possible level. Without the constant concern regarding attorneys, the school has done their best to provide the student with an appropriate education, and all of the parties have worked to develop an appropriate program for the student. The teachers meet with the parent at least once a year and the entire team works together to provide the student with an appropriate education.

Conclusion

Parents and students are grossly under-represented in the field of special education. The number of students who need an advocate/attorney is growing as the budgets for special education services shrink in school districts. Without the effective utilization of advocates by attorneys and parents, the number of students who do not receive an appropriate education will continue to grow. All of society suffers if we allow students to leave the public education system without receiving an appropriate education. The numbers are reflected in mental health admissions, correctional inmates, the welfare rolls, the homeless, and other unrepresented populations which do not benefit society as a whole. It is in everyone’s interest to provide students with an appropriate education that prepares them for a meaningful life after high school. Advocates are an important part of this process.