My Son

My Son

Tuesday, November 11, 2008

Enforcing Your Child's Civil Rights - a parent's hard learned lesson

Try to get as many special education parents together as a group and as a group:

file OCR complaints
file State complaints
file OSEP complaints
meet with Child and Family Services and advise them the district is using them to intimidate parents who are fighting for their children's rights
Go to the newspapers.
Tape each and every phone call or meeting, take quotes from those tapes and blog them
Send quotes from schools staff where they give parents misinformation, along with relevant sections of IDEA to local newspapers in the form of letters to the editor.
File ethics complaints against anyone with a license who is not acting in the best interest of the children.

Here is some more specific information:Parents of special needs children are sometimes so myriad within the confines of IDEA, that they forget or never realize their child's rights are also protected under other laws. If you believe your child has been a victim of a civil rights violation, there are steps you can take to address the issue. Sometimes by failing to provide you child FAPE a district is violating your child's civil rights. If so, you probably want to file a complaint regarding this violation.

Discrimination and Your Child

You may be wondering why I am talking about discrimination in relation to your disabled child. It's because our children with disabilities are often discriminated against. Frequently, they are discriminated against by peers, often they are discriminated against by callous neighbors, occasionally they are discriminatedagainst by ignorant or narrow minded family members. Almost always they are discriminated against by our public institutions which seem view them as a burden to bear rather than as worthy beings who are suffering coping with disabilities.

So, does your disabled child have any rights in the United States? Yes, Title II of the Americans with Disabilities Act (ADA) protects your child, as does Section 504 of the Rehabilitation Act. Unfortunately, these laws are basically just words on paper, until and unless you the parent pursue their enforcement.

This means the responsibility falls to you to read the laws or have them read to you. To question friends, other parents of disabled children, legal aid, protection and advocacy, special needs coaches until you understand the protections that are supposed to be afforde to your child. Basically as I understand it the maindifference between these laws is 504 applies to agencies that receive money from the federal government, and the ADA applies to public entities. A public school is a public agency, and if they accept public funds is also a recipient of federal funds, and therefore is usually held accountable under both laws.

What's the difference?

The main difference between the two laws is that one applies to the recipients of grants from the federal government (Section 504) and the otherapplies only to public entities (Title II). A school or college may be both a recipient of federal funds from the U.S. Department of Education and also apublic entity. In such cases, the institution is covered by both laws.

Who is protected?

Both laws, not only protect your child, but they also protect your rights as a parent of a disabled child. Another interesting aspect of these laws is that they don't only cover your child's education. They cover any program offered by these agencies. That means extracurricular activities and sports, as well.

What are the protections?

Some of the tangible protections are things like the fact that all buildings covered by these laws built after 1977 have to be fully handicappedaccessible. These laws also say that schools are required to give disabled children appropriate academic accommodations, aids and related services so that the disabled child has the same access to all programs the school offers as a non disabled child. Of course, what is considered appropriate is where the debate arises. But, examples of the types of supports or aids your child is entitled to if needed are text books on CD's, someone to take notes for them, someone to interpret for them, someone to read material to them, specialized computer equipment and programs, touch screens so forth. Schools do NOT have to supply medical devices like hearing aids or wheelchairs or therapy dogs, but, they do have to permit the disabled child to use them.

Free Appropriate Public EducationAs most parents of disabled children know, schools have to provide disabled children Free Appropriate Public Educations (FAPE) based upon their uniqueeducational needs. This may mean giving occupational therapy, counseling, parent training, physical therapy, speech language therapy, or cognitive rehabilitation. It may mean that your child is provided homebound instruction if a medical or psychological problem prohibits them from attending school. It may mean they are entitled to modification of tardiness and truancy rules. It may mean they get program modifications like extended time to learn material, tests read to them, or the opportunity to type answers rather than write them. What is provided is suppose to be based on what your child needs not upon what the school has available, usually does or prefers to do.

Protection from Harassment

One of the important protections afforded your child under these laws is protection from bullying and harassment because of their disability. But, as mentioned above, none of these rights are valid unless you insist on their application. Not insisting on your child's right is like having the right to vote and never going to cast your vote. The right becomes meaningless unless exercised. That is why court cases have held parents accountable when school districts failed to educate their disabled children because the parents failed to challenge the school districts, or couldn't document that they challenged them and pursued their child's rights through State and Federal Complaints, Mediation, Resolution Meetings and Due process.

File but don't expect enforcement

For most cases involving civil rights violations, one of your options is to file a complaint with the government at the federal or state level, and allow a government agency to take steps to enforce your civil rights. Filing a complaint will theoretically trigger an investigation into your claims by the agency, and the government may take further action on your behalf. Unfortunately, at this time in America we seem to be functioning under a "Survival of the Fittest Mentality". In other words, no one - least of all the government - seems to care if the disabled, the elderly, the poor the undereducated are protected. So, while there are laws in place to protect disabled children, there is very little enforcement.

File, File, File some more

Despite this prevalent attitude by people in positions of power the important issue is for you to file your complaint. File a NCLB complaint if that is relevant. File at the State Level. File at the Federal Level. File it at the Public Level. By this I mean, send a copy of your complain to the local newspaper. Ask for free radio time to read your complaint on air. Send a copy of your complaint to all the TV stations that you can. Blog your complaint on the internet. The more people who know the facts, the more likely that someone will finally help you rectify the situation.

Moral Pressure

Be careful though, when you send your complaints to an agency or an individual. Don't let them know that you are also sharing your complaint with others. When the realize there are others that you have also filed your complaint with, it is as if you have given them permission not be responsible, but to instead pass the responsibility to someone else. It is like when someone is mugged in a crowd. Everyone stands around watching, but no one helps because they believe someoneelse will do something. But, if they are the only one there, then they feel a moral obligation to respond. So, let each agency you file with believe they are the only one that you contacted. Let the moral responsibility to do something weigh upon them.

File a lawsuit

If you think your child has been the victim of a civil rights violation, you probably have the option of filing a lawsuit against those responsible for any harm suffered as a result. For instance, I filed an OCR complaint when my five year old Asian daughter was denied OT services because she was tiny and the OT assumed she was three years old and on target for that age rather than bothering to actually evaluate her. Unfortunately, OCR didn't even bother to respond to my complaint. But, Ididn't stop there. I also filed for a due process; which without the help of an attorney, I won and my daughter was awarded a full year of private OT servicesat the school district's expense. What I learned was that as parents trying to ensure our children's rights we may have to pursue multiple avenues of complaint.

Go to Court

If you decide file a lawsuit for a civil rights violation, one of your first considerations will be where to file: in federal or state court. In either case, a complaint has to be filed, and because your child's interests are considered to be your interests, you can file on behalf of your child even if you can't afford an attorney. Youdon't need to be real intelligent or know a lot about the law to file a complaint on behalf of your child. School attorneys and hearing officers may attempt to intimidate you or make you feel like you need to be an attorney. But, that is not the truth. You simply need to be a parent and to clearly state your complaint and to present your proof.

Pace Yourself

When you feel your child is discriminated against, file complaints until you get an appropriate response. But, be careful when doing this. Don't let the complaint process exhaust you physically, mentally,emotionally, or spiritually. Look at it as a job. A job that you will be doing a bit at a time over a long period of time, taking one small step at a time towards correcting a wrong. Don't view it as a sprint where you exert massive amounts of energy all at once. View it as a marathon where you need to pace yourself because the goal is simply to survive the race. If you don't take this perspective and pace yourself, you will ruin your mental and physical health and perhaps your marriage

Education Consumer Beware

Proof: that is where most parents I know fail to meet the mark. They take educators at their word. They don't confirm conversations in writing. They don't put their objections in writing. Basically, you need to view your interactions with the school district, the way you would view your interactions with a sly used car dealer. Constantly practice the maxim of "Buyer Beware". Use this maxim to guide all your dealings with a school district, and you'll automatically do the things you need to do. You'll ask for everything in writing, you'll read everything you get or have someone else read it to you, and you will confirm everything you say in writing. When dealing with school district personnel and trying to ensure your child's rights, never accept a handshake deal.

Remember that you are acting as your child's agent, and that you need to protect your child by being vigilant, by being constantly on the alert fordeception, understatement, misstatement, errors of omission and errors of commission. Be aware, Be Proactive and Be an Educated Consumer of EducationalServices.

Learn More:

The Government's Role in Civil Rights Enforcement

Filing a Government Claim Before a Lawsuit

Presented as a community services by a non lawyer, parent of a disabled child and special needs coach based upon my experience in advocating for my ownchild's educational rights.
S. L. Crum, B.S.,M.S.,Ph.D.Special Needs Coach
Susan. L. Crum, B.S., M.S., Ph.D.
Special Needs Coach
Able2LearnVoice & fax: 863-471-0281Email: Able2learn@live.comWebsite:

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