Subj: THE SPECIAL ED ADVOCATE, Vol. 1, No. 7 (July 1, 1998)
Date: 7/1/98 8:12:02 PM Pacific Daylight Time
From: (Pete+Pam Wright)

The Special Ed Advocate

The Online Newsletter About
Special Education and the Law

July 1, 1998 Vol. 1, No. 7

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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 -

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

IN THIS ISSUE: July 1, 1998

(1) NEW SLIDE SHOW! - "A picture is worth a thousand words." Create
great graphs of your child's educational progress.

(2) NEW UPLOADS TO THE LAW LIBRARY! What factors make a child's special
education program appropriate? Inappropriate? The decision in "Evans v.
Rhinebeck" provides a roadmap to FAPE.

(3) NEW UPLOAD TO THE LAW LIBRARY! To learn why school districts should
NOT "draw lines in the sand" about ESY services, read " Lawyer v.

(4) LETTERS TO THE WEBMASTER - Read what James Brody of North Carolina
wrote about his "Big Case"

(5) EFFECTIVE PRACTICES LINK - "Reading Recovery - The Claims v. The



Many parents are worried about their child's progress - or lack of
progress - in special education. These parents know that homework takes
hours to complete - or that the child is still struggling to read. When
parents share their observations with the teacher or IEP team, they are
usually assured that the child is making good progress. If the school is
"in denial," what can parents do?

We are happy to report that the #1 article on our web site is
"Understanding Tests and Measurements for the Parent and Advocate." In
this article, we teach parents how to measure educational progress with
test and subtest scores from the child's evaluations. The article is
required reading for all of our parents.

Because a picture is worth a thousand words, our parents learn to create
graphs of their child's test scores. If you have a software suite like
MS Office, the Wizard will help you make graphs. If you prefer to take
the "low tech route," you can use graph paper and bright colored

We created a short slide show as a supplement our article about Tests
and Measurements. At the beginning of the show, you'll see the test
scores we used to make the graphs. These graphs show that the child was
not making much progress. The graphs became evidence in one of our
cases. Enjoy!


What factors make a special education program appropriate?
Inappropriate? The decision in "Evans v. Rhinebeck" provides a roadmap
to FAPE.

Two weeks ago, we uploaded the Second Circuit's decision in Walzak v.
Florida Free Union and the Eleventh Circuit's decision in Weiss v.
Hillsborough. Both cases were adverse to the parents. Yet, we included
lengthy discussions of both cases in this newsletter. Several people
wrote to ask "Why?"

Adverse decisions teach valuable lessons.

In Walzak, the Second Circuit decided that the public school was
providing the child with an appropriate program. After analyzing the
child's academic progress, the court concluded that the child benefited
from the public school program. If the public school provides an
appropriate program, parents are not entitled to be reimbursed for a
private program.

This week, we added Evans v. Rhinebeck to the Law Library. In this case,
the parent asked the court to order reimbursement for her son's
education at the Kildonan School. (Kildonan specializes in educating
children with severe language learning disabilities like dyslexia.)

In Evans v. Rhinebeck, the judge concluded that the public school
program was NOT appropriate. What factors led him to conclude that the
Rhinebeck program was not appropriate for Frank?

To determine if a school district has provided an appropriate education
(FAPE), hearing officers and judges must analyze two issues:

(1) Procedural requirements - Did the district comply with the
procedural requirements and provisions in developing the child's IEP?

(2) Substantive requirements - Is the district's IEP "reasonably
calculated to confer educational benefit?"

If you read the Walzak case, you know that parents are NOT entitled to
the BEST education. Parents are NOT entitled to an education that
"maximizes" the child's potential.

Disabled children ARE entitled to an education that is "sufficient to
confer some educational benefit upon the handicapped child . . .
(including) specialized instruction and related services which are
individually designed to provide educational benefit to the handicapped
child." (Rowley, 458 U.S. at 200-01.) (NOTE: Rowley was the first
special education case heard by the U. S. Supreme Court.)

In Evans v. Rhinebeck, the judge found that the District violated
several important procedural requirements of IDEA:

1. The district did not convene a due process hearing within 45 days of
the parent's request;
2. The district did not have an IEP ready to implement at the beginning
of the school year;
3. The district did not include accurate information about Frank's
present levels of functioning, nor did they include objective strategies
to evaluate progress in his IEP;
4. The district did not prepare a written report about how they
determined that Frank had a learning disability.

In his decision, the judge discussed testimony by several "experts on
dyslexia" about whether Frank received educational benefit from the
public school program:

"According to each one, the program currently proposed by the district
to educate Frank is not reasonably calculated to provide him with
educational benefit, and in fact may harm him.”

The judge cited testimony by the District's special education teacher.
Although the special education teacher provided "intensive one-on-one
instruction eight times a week," and modified Frank's homework and class
work, his performance declined. The judge noted that "Frank failed every
major academic subject of his seventh grade year."

In his decision, Judge Parker included Frank's scores on educational
achievement tests. These test scores provided objective evidence that
Frank did not make progress in the public school program - that he did
not receive educational benefit.

Here is how Judge Parker analyzed Frank's situation:

"The testimony and documentary evidence tell a compelling story of a
very intelligent, but emotionally vulnerable, child who is at great risk
of dropping out of school, despite a demonstrated capacity to succeed
academically, socially and emotionally in an appropriate program."

"The expert testimony establishes that, the nature of Frank's dyslexia
in conjunction with his emotional problems, is such that he needs an
intensive program of individualized, integrated, multi-sensory,
sequential training with students of similar needs. The IEP proposed for
Frank is not such a program, and therefore cannot meet his needs."

To read the compelling decision in Evans v. Rhinebeck - go to


To Learn Why School Districts Should NOT "Draw Lines in the Sand" About
ESY Services, Read "Lawyer v. Chesterfield"

Danny Lawyer is a young child with autism. At age six, he had expressive
language and phonological processing problems. The experts who evaluated
and treated Danny advised his parents that his ability to be
self-sufficient and independent later in life would depend on his
ability to communicate.

During the summer, Danny regressed in his ability to communicate. His
behavior deteriorated. His school district refused to provide any speech
language therapy during the summer months - and refused to reimburse his
parents for the services they purchased for their son.

The parents requested a special education due process hearing - and
prevailed. The school district appealed. The Review Officer overturned
the Hearing Officer's decision. The case was appealed to Federal Court.

After reviewing the record and hearing new testimony, Judge Spencer
concluded, "Regression is not the only factor" in deciding if a child
needs ESY services. He listed several additional factors that IEP teams
should consider in making ESY decisions:

Recoupment in the Fall;
The child's rate of progress;
The child's behavioral or physical problems;
The availability of alternative resources;
Areas of the child's curriculum that need continuous attention;
The child's vocational needs.

Judge Spencer discussed regression and recoupment. He also discussed the
need to take advantage of "windows of opportunity" in educating children
with disabilities:

"Danny's regression in the summer, coupled with nominal recoupment,
severely limits the educational benefits he receives from instruction
during the school year. His rate of progress is minimized by the
interplay of continuous regression and recoupment."

"Moreover, Danny's behavioral problems are compounded by his severe
language deficit. His inability to effectively communicate triggers
unacceptable behavior. Therefore, it is critical that Danny be provided
with continuous speech and communication services."

"Finally, the evidence provided by expert witnesses indicates that for
children who suffer from moderate to severe childhood autism, there is a
small, but vital, window of opportunity in which they can effectively
learn. Such period is generally between the ages of five and eight years
old . . . The Court concludes that it is extremely important that at
this critical stage of development, Danny receive uninterrupted speech
language therapy."

Read the decision in Danny Lawyer's case at


What is it like to go through a special education due process hearing -
from the child's perspective? James Brody - a young man from North
Carolina - writes about his "Big Case."

Did you read the Review Officer's Decision in James Brody's case? Did
you read his parents' "Letter to the Stranger?" Find out what James
thought about his case -

Go to

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

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


"Reading Recovery - The Claims v. The Facts"

In June, 1997, the new IDEA was signed into law. In the new law, you
will find the following statement:

"However, the implementation of this Act has been impeded by low
expectations, and an insufficient focus on applying replicable research
on proven methods of teaching and learning for children with

Special education has generated negative publicity because the system
often fails to teach basic academic skills. Special education outcomes
are poor. To change these poor outcomes, the new law emphasizes the need
to use "proven methods of teaching and learning" based on "replicable

During the past several years, hundreds of school districts around the
country have implemented "Reading Recovery" programs for young children
who are identified as having reading problems. In Reading Recovery, a RR
trained teacher works on-on-one with each child over a period of several
weeks. Reading Recovery has claimed that their program is very

Serious problems have emerged with Reading Recovery. Children who have
reading problems caused by neurological conditions like dyslexia do not
benefit from RR. When schools place these children in RR programs - for
weeks or months - the children do not receive the kind of remediation
they need. It appears that for many children, gains made in Reading
Recovery don't last. By third grade, most RR children have fallen behind

For an in-depth analysis, read "Reading Recovery - An Analysis of the
Benefits and Costs" at the University of Oregon's website:


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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.


The Special Ed Advocate
Pete and Pam Wright