Your child is not receiving the attention or services he or she needs in school. As a result, your child is doing poorly in school. You’re not even sure of the cause of the problem, but you know something is wrong. What do you do?
If you are the parent of a child with special needs, this may sound painfully familiar. But, there is a solution. Remember the old saying, “the squeaky wheel gets the oil?” Well, that is just as true in special education as it is in other aspects of life. For those who feel uncomfortable being a “squeaky wheel,” remember that you are acting for your child’s benefit.
The following is an outline of the ways you can complain about your child’s special education services.
Consultation to Discover the Problem
A good first step is to consult with a special education advocate or attorney to discuss your options. Perhaps the biggest problem in this area is that most parents do not know their options or that they have options at all. Most parents share the sentiment, “The school will do what is right for my child.” Tragically, that is not always true.
You, as the parent acting on behalf of your child, have many options. The approach to improving your child’s services may vary depending on your child’s specific diagnosis, individual educational capacity, the school district’s resources or current individualized education program (IEP). An advocate or attorney is trained to know the best way to address the issue, so seek a consultation.
Addressing the Issue With the Child Study Team Manager/Case Manager
The first approach is to bring your complaint to the person identified by the school as the point person for your child’s special education needs. In most school districts, there is a case manager or head of a “child study team” assigned to your child. This person should have the most knowledge about your child and his or her IEP; however, you may need to go to the director of special education for your school district if this approach has already failed. You need to get someone to listen. Again, you need to be the squeaky wheel that someone hears.
Due Process Complaint
If you reach an impasse with the school district or disagree over something relating to your child’s special education, you may need to file a due process complaint. This is not something to be taken lightly and I highly recommend that you consult with an attorney (not an advocate) for this approach. This is akin to suing the school district and if you don’t do it correctly, you will fail.
Essentially, a due process complaint is a complaint to your state’s department of education alleging that your school district is not complying with the law with respect to your child’s education. You will need to prove that before a hearing officer, sometimes called an administrative law judge. This is called a due process hearing and looks very much like a trial, involving presenting evidence, witnesses and sometimes an expert witness.
Each state has its own due process procedures and forms. You need to follow those procedures carefully or the case will be dismissed without any help for your child. If you win at due process, you are likely to get most or all of your attorney’s fees back. However, even if you don’t succeed at the due process stage, you have another chance (see the section on appeal below).
Other options at this stage are filing a formal state complaint or requesting mediation. Both can be done before or after filing a due process complaint.
Civil Rights Complaint
Another option is to file a civil rights complaint to the U.S. Department of Education’s Office of Civil Rights. Essentially, this is an allegation that your school district has violated your child’s civil rights, which are guaranteed to him or her as a child with a disability. Just like employers can’t discriminate against people of certain races, creeds, gender, etc., schools cannot discriminate against students with disabilities.
Filing a civil rights complaint does not necessarily preclude the filing of a due process complaint, but the two may be filed simultaneously as they involve different laws. However, like a due process complaint, a civil rights complaint is very technical and must follow its own set of procedures and forms. This is another area where a special education lawyer is critical, and pursuing it alone is not for the inexperienced or faint of heart.
Appeal/Lawsuit in Court
The losing party at the due process or civil rights stage has the right to appeal that decision to a court of law. This may be state or federal court. Although you can handle any part of this process pro se (by yourself), you risk not helping your child. I don’t meant this to be an advertisement for lawyers, but simply a caution that even though you are passionate about your child’s needs, you may get in over your head. There is a reason that lawyers went to law school, took a bar exam, take hours of continuing legal education credits each year and “practice” law; it is to ensure that they have experience and knowledge on how the court process works and are therefore in the best position to protect your child’s rights.
At the end of the day, that is the goal of any of these complaints: to enforce your child’s special education rights and to make sure your child is provided a “free appropriate public education.” Since children typically can’t do this for themselves, the parents (and their counsel) must be the squeaky wheels to get the oil that will help their child succeed.