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Subj: THE SPECIAL ED ADVOCATE NEWSLETTER, Vol. 1, No. 6, June 16, 1998
Date: 6/16/98 5:48:18 PM Pacific Daylight Time
From: pwright@wrightslaw.com (Pete+Pam Wright)
Sender: owner-special-ed-advocate@wrightslaw.com
Reply-to: pwright@wrightslaw.com
To: special-ed-advocate@wrightslaw.com

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The Special Ed Advocate

The Online Newsletter About
Special Education and the Law

June 16, 1998 Vol. 1, No. 6

Visit us today at:
http://www.wrightslaw.com

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The Special Ed Advocate is a free online newsletter about special
education legal issues, cases, tactics and strategy, effective
educational methods, and Internet links.

We publish this newsletter occasionally, when time permits. Back issues
of The Special Ed Advocate are archived at our web site -

http://www.wrightslaw.com.

As a subscriber to The Special Ed Advocate, you will receive
announcements and "alerts" about new cases and other events. Contact,
copyright, and subscription information can be found at the end of this
newsletter.

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IN THIS ISSUE: June 16, 1998

(1) Tactics and Strategy Session with Pete Wright: Writing IEP Goals and
Objectives

(2) Did the Pendulum Swing in Florida? - New 11th Circuit Decision in
Weiss v. Hillsborough School District (procedural violations; damages;
delay in finding autistic child eligible)

(3) "Loving Parents" Are Not Entitled to the BEST Education - New 2nd
Circuit decision in Walczak v. Florida Union Free School District
(tuition reimbursement; residential placement; developmental
disabilities; insufficient evidence that public school program not
appropriate)

(4) Letters to the Webmaster - Why did Bill Matthew write "We can train
Shamu but we can't train a kid to be compliant or to read?? Give me a
break!!" Bill also has some suggestions about our "Tests and
Measurements for Parents and Advocates" article.

(5) Letters to the Webmaster - Faye wrote "My child's special education
program failed. Is this my fault?" Pete and Pam respond to Faye's
questions.

(6) COMING SOON - How to Chart Out Test Scores; Sample Graphs of Test
Scores

(7) NOTICE: Legal Advice on the Internet

(8) SUBSCRIPTION INFORMATION
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NEW ARTICLE IN SPECIAL ED ADVOCACY LIBRARY!

(1) A TACTICS AND STRATEGY SESSION WITH PETE WRIGHT -
IEP GOALS AND OBJECTIVES

This new article should help parents get good IEP goals and objectives
in their child's IEP. The president of a state LDA chapter asked the
questions - and Pete provided the answers. Here are some of the
questions Pete was asked in the Tactics and Strategy Session about IEPs:

What should parents do if the school members of the IEP team insist on
using subjective "teacher observations," not objective information in
the child's Present Levels of Educational Performance?

Why should parents use a consultant to help write IEP goals and
objectives? How can parents measure educational progress?

How can parents avoid "methodology disputes" - and still get the
services their child needs?

How can parents negotiate for school-paid private tutors? What are
Extended School Year (ESY) services?

How can parents write good IEP goals and objectives?

How can parents know if their child is really making progress?

What should parents do if their child is NOT making progress? What
techniques can parents use to show that their child isn't making
progress?

Read this new article about using tactics and strategy in The Special Ed
Advocacy Library -

http://www.wrightslaw.com/Tactics_Strategy_IEPs.html

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LAW LIBRARY - NEW CASES!!

(2) ELEVENTH CIRCUIT DECISION - ADVERSE TO HILLSBOROUGH PARENTS

In law, the pendulum always swings. Pro-child decisions are followed by
pro-school decisions. In law, there are no blacks and whites - law is
written in shades of gray.

In April of this year, we sent our newsletter subscribers an "Alert"
about the Whitehead case in Florida. In that case, a jury found that the
Hillsborough School District retaliated against Andrew Whitehead's
parents for trying to ensure that he received the services in his IEP.
The jury awarded Andrew's parents $600,000.00.

Less than six weeks later, on May 13, 1998, the Eleventh Circuit Court
of Appeals rendered a decision in favor of the same school district in
Weiss v. Hillsborough.

This case involves young Samuel Weiss, a child with autism. In 1993,
Samuel's parents learned that they would be moving from Fulton County,
Georgia to Tampa, Florida (Hillsborough School District). To smooth
their son's transition into the new school district, the parents sent
copies of his IEP and other educational records to Hillsborough before
moving to Tampa. Thus, Samuel entered the Hillsborough school district
with an IEP developed in Georgia.

On October 6, 1993, Samuel's parents attended an IEP meeting with
Hillsborough school staff. The district declined to implement Samuel's
existing IEP from Georgia. Instead, Hillsborough advised the parents
that they would have to do new testing before they could find Samuel
eligible for special education. While this new testing was being done,
Samuel would receive services through an "interim IEP."

The Eleventh Circuit described this "interim IEP" as follows:

"Although the October IEP was not nearly as comprehensive as the Georgia
IEP, it sketched out some current levels, some goals and objectives, a
list of persons responsible for Samuel's education, evaluation
procedures and a schedule.

Six months later - in April, 1994 - Hillsborough finally held an
eligibility meeting and determined that Samuel was eligible for special
education as a child with autism. Next, the district proposed an IEP.
The parents disagreed with the IEP. On the following day, they withdrew
their son from the public school program.

Next, the parents requested a special education due process hearing to
resolve their dispute. The Hearing Officer concluded that the interim
IEP was legally sufficient under Florida law and the IDEA, although it
lacked specificity and failed to explain the effect of the Georgia IEP.
The Eleventh Circuit upheld the Hearing Officer's decision on this
"interim IEP."

The parents claimed that by continuing this "interim IEP" for six
months, Hillsborough - and the state of Florida - denied Samuel a free
appropriate education. They asked the Eleventh Circuit to rule that
Florida's Regulations governing these timelines were improper. The
Eleventh Circuit was unwilling to invalidate Florida's Regulations:

"The six month window created under Fla. Admin. Code R. 6A-6.0334 is not
inconsistent with the IDEA's goal to provide Samuel with a FAPE. Absent
clear direction from Congress, the Court will not invalidate a state
rule because it differs from a particular party's interpretation of the
IDEA."

The Court noted that the parents alleged 27 procedural violations by the
school district. This is how the Eleventh Circuit portrayed these
issues:

". . . the Weisses spend a great deal of their memorandum discussing the
faults of the educational services that Samuel received and explaining
how Samuel would have made greater progress had the Georgia IEP been
implemented . . . both the Weisses and the School Board desire to
provide Samuel with an education which will maximize his potential.
However, the School Board is not required to maximize his potential . .
.

"Nor is the School Board required to provide an education according to
the dictates of Col. and Mrs. Weiss, notwithstanding their unequivocal
right to participate in making educational decisions."

"As to the other alleged violations, the facts do not show that the
Weisses were precluded from participating or making informed decisions
regarding the education Samuel received. Although the IDEA envisions
full parental participation in the development of the IEP, the Act does
not mandate such participation in every aspect of the educational
process."

What led the Eleventh Circuit to issue this decision? Is this decision a
reaction to the $600,000 jury verdict for Hillsborough parents a few
weeks earlier? The Eleventh Circuit may have provided an answer to this
question in their decision. Click on the decision (below). Read the
second sentence of the decision - after "Samuel Weiss is an autistic
child; he is thirteen years old."

The new Eleventh Circuit decision in Weiss v. Hillsborough is available
in The Law Library.

http://www.wrightslaw.com/case_Weiss_Hillsborough_11Cir.html

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LAW LIBRARY - NEW CASES!!

(3) SECOND CIRCUIT DECISION - WALCZAK V. FLORIDA UNION FREE SCHOOL
DISTRICT

LOVING PARENTS WANT WHAT'S "BEST" FOR THEIR CHILD - SCHOOLS ONLY NEED TO
PROVIDE AN "APPROPRIATE PROGRAM"

On April 16, 1998, the Second Circuit issued their decision in a New
York tuition reimbursement case. In Walczak v. Florida Union Free School
District, the Court determined that the program proposed by the public
school did provide B. W. with a free appropriate education. B. W. is a
child with severe learning disabilities.

In addition to her learning disabilities, the child had serious social
problems. She did not interact with other children and did not have
friends. The parents asked the district to fund her placement at
Maplebrook School in Amenia, New York. The parents felt that a
residential placement was the BEST WAY to address her problems. The
district developed an IEP that placed her in one of their self-contained
classes for developmentally disabled children.

ALL WITNESSES - including both of the parents' witnesses -- testified
that the child made academic and social progress in the public school
program. Neither of the parents' experts disagreed with any of the
academic or social goals in the proposed IEP. One expert testified that
the child needed a residential setting to achieve the social goals. The
other expert testified that although she favored the residential
placement, the child's academic and social needs could be met in the
public school program.

The Second Circuit quoted a 1984 decision by (now) Supreme Court Justice
Ruth Ginsburg -

" . . . because public resources are not infinite, federal law does not
secure the best education money can buy; it calls upon government, more
modestly, to provide an appropriate education for each disabled child."

After charting out the child's achievement test scores, the Court
concluded that these test scores were proof that the child made
"impressive" and "remarkable" progress in the public school program:

"These objective academic achievements are uncontradicted and certainly
not "trivial." In fact, they are impressive when considered in light of
the significant social problems that impeded B. W.'s academic progress
when she first entered BOCES . . . [the parents experts] each confirmed
that the social progress made by B. W. during the years she was enrolled
at BOCES was remarkable."

The Second Circuit distinguished their ruling in Walczak from their
earlier decision in Mrs. B. v. Milford Bd. of Education, 103 F. 3d 1114.
"There, all the evidence indicated that the disabled child's social
problems were steadily worsening with adverse consequences on her
education."

The Court returned to the issue of academic progress:

"The objective evidence in this case demonstrates that B. W. could make
meaningful academic and social progress in a day program . . . the
overall picture is plainly one of improvement, not regression.

Quoting a letter from the parents to the school district, the Court held
that -

"It appears [that the parents purpose] in seeking a residential
placement for B. W. was "to obtain the maximum interventions" for her
"so that she can reach her true potential.

"While the parents wishes are understandable, IDEA does not require
states to develop IEPs that "maximize the potential of handicapped
children." Bd. Of Educ. V. Rowley, 458 U. S. at 189.

"The inadequacy of an IEP is not established, however, simply because
parents show that a child makes greater progress in a single area of a
different program."

At the conclusion of their decision, the Court cited testimony of one of
the parents' witnesses as "particularly relevant."

"Although she viewed Maplebrook as a superior facility, she stated that
the BOCES program for the developmentally disabled was sufficiently
structured and supportive to meet B.W.'s academic and social needs."

LESSONS FROM THE WALCZAK CASE:

(1.) Children are not entitled to the BEST special education. Parents
must eliminate the word "BEST" from their vocabulary when they discuss
the child's special education needs. Your child is entitled to an
"appropriate education" - NOT the BEST education or an education that
geared to "maximize potential." Many courts still define an "appropriate
education" as "access to an education" or a "basic floor of educational
opportunity."

(2.) Parent testimony carries little weight in the eyes of judges.
Loving parents are assumed to be biased. The parents' testimony about
what the child needs will not carry the day.

(3.) 99.9 % of the time, school staff will testify that their program is
appropriate. About 85% of the time, school staff will testify that their
program is BEST for the child. (BTW: School staff can use the word
"BEST" - but parents cannot.)

(4.) Parents MUST have a strong team of experts. These experts must be
willing to advise the IEP team, Hearing Officer, or Judge about the
inadequacies or adequacy of the public school program and the parent
program. If the parents' experts testify that the school's IEP and
program IS appropriate, parents will not prevail.

The new Second Circuit decision in Walczak v. Florida Free Union School
District is available in The Law Library.

http://www.wrightslaw.com/case_walzak_flfreeunion_2d.html

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LETTERS TO THE WEBMASTER

We receive e mails from people who disagree with our positions and
opinions.

(5) Why did Bill Matthew, director of special education, say that -

WE CAN TRAIN SHAMU BUT WE CAN'T TRAIN A KID
TO BE COMPLIANT OR TO READ?? GIVE ME A BREAK!!

Also check out what Bill Matthew had to say about our Tests and
Measurements article.

Go to http://www.wrightslaw.com/ltr_from_Matthew.html

Occasionally, in Letters to the Webmaster we will post from readers. We
select letters that seem to reflect a common question or concern.
(6) Fay from Minnesota wrote to ask:

My child's special education program failed - is this my fault?

My daughter's IEPs have always had vague goals and objectives. My
daughter has made little or no progress after several years of special
education. If our case goes to due process, is the school liable for not
providing an "appropriate" education? Or is it my fault because I signed
the IEPs?

Read our answer to Faye at

http://www.wrightslaw.com/ltr_Faye_Sped_Failed.html

Different views, tactics, strategies, beliefs, opinions, and prejudices
make for interesting reading. After all - Wright's way is not the only
way!

If you have a favorite tip, tactic, or strategy that you'd like to
share, send it to

webmaster@wrightslaw.com

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(7) NOTICE: PROVIDING LEGAL ADVICE ON THE INTERNET

We receive dozens of e mails and letters a day from people who want
answers to legal questions. We cannot answer legal questions. If you
have a legal question, you should consult with an attorney.

If you want a consultation, please read the information about
"Consultations" on the web site.

http://www.wrightslaw.com/Consult_and_Advocacy_Pak.htm

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(8) SUBSCRIPTION INFORMATION

Please forward this newsletter to a friend. To subscribe to our
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majordomo@wrightslaw.com

In the body of the message, insert the following words exactly, with
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Do NOT send your subscription request to pwright@wrightslaw.com.

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========================================

Copyright 1998 Peter W. D. Wright and Pamela Darr Wright.
All rights reserved.

The resources at this site are copyrighted by the authors and/or
publisher. They may be used for non-commercial purposes only. They may
not be redistributed for commercial purposes without the express written
consent of Peter W. D. Wright and Pamela Darr Wright.

Appropriate credit should be given to these resources if they are
reproduced in any form. Pete and Pam Wright, P. O. Box 1008, Deltaville,
Virginia 23043.

Email: pwright@wrightslaw.com
http://www.wrightslaw.com/

The Special Ed Advocate
Pete and Pam Wright