Advocacy: What's Your Style; Adversarial or Aggressive? What's the Difference?

Body: 

                                 Relax and Open Your Mind

Photo of an old woman smoking a cigar. [Note: [NOTE: Feel free to ask questions about this or any article on the Ask an Advocate Forum where Brice Palmer will answer your questions.  REGISTER for the Webinar to Discuss this Topic April 1, 2015 7:30 pm ET]

You might be wondering why the first INCIID articles in this series were about

  • ·Getting and maintaining education records
  •  How to analyze an IEP;
  • Comparing the IEP or 504 plan with the relevant facts and the regulations;
  • That a school district’s lawyer looks at an IEP as if that IEP is going to wind up in front of a hearing officer; and
  •  How a hearing officer reaches a decision about whether to rule in favor of the parent or the school district[1].

Each one of those subjects go to the heart of how we argue about why an IEP or 504 plan should be changed or why they deny the student of a free and appropriate public education (FAPE). Or, why the school has discriminated or retaliated, or both, against the student based on the student’s disability[2].

Let’s face it. When our child is getting the short end of the specialized instructions and related services stick we want to take the junk yard dog approach with the Team.

Ruby’s Rule of Team Meetings

When the stuff hits the fan, the stuff is not distributed evenly.

So how do we get the stuff to be distributed evenly? We argue.

Wait a minute. Argue? Well yes. But an argument here is not the same kind of argument we might have with a cruddy neighbor or someone at work who tics us off.

We are talking about arguments that are framed by the rules of process and procedure. These are legal arguments. And no, you don’t have to be a lawyer to learn how to make legal arguments at a Team meeting or when you write a complaint. As we said in an earlier article, you just have to learn how to think like a lawyer. And yes you can because If I learned how to do it — you can too.

A little history about settling disputes

Transport yourself back in time to feudal England. Imagine that you are standing in a grassy field where a duel is about to take place. The duel is between one landowner and a neighboring landowner. The outcome of the duel will settle the dispute between them.

But wait.  The two people who will do the dueling are not the landowners.  No. The people who will settle the dispute in the duel are standing in for the land- owners; in other words, the landowners each hired champions to fight the battle for them. 

Imagine that this system of stand-in dueling had been going on for several centuries. 

As you visualize this feudal dueling scene, imagine that one of the stand–ins vigorously waved at the other one and yelled across field,

Hey, can't we talk it over?"Hey, can't we talk this over?"

And so it came to pass that those first two stand-ins met later and began putting together a set of rules about how to "talk this over" instead of exposing themselves to severe bodily harm to settle disputes for whomever hired them.

The rules include the rules of evidence, criminal and civil procedure, court procedure, and procedures for appeals developed slowly as the centuries passed. To this very day, tweaking the rules continue.  These rules and procedures are what define the adversarial model of legal disputing. Over time, other rules about how the stand-ins should conduct themselves evolved.  These rules are the present day Rules of Professional Responsibility and Codes of Professional Conduct that every licensed attorney is bound to follow. 

Adversarial, then, is not a word that describes one's attitude or demeanor.  It is simply a way to say that a legal conflict exists between two or more parties, and that the conflict will be resolved by using a set of procedural rules. 

What does all this have to do with Parent Advocacy?

Everything

An adversarial relationship exists the moment a parent asks the district to evaluate for eligibility under the IDEA or Section 504, or, the district has reason to believe the student may be a child in need of special education. Why? Because once the suspicion of whether the student is in need of special education under the IDEA or may be qualified for protection under Section 504, the district represents its interest and you, the parent, represent your child’s interests. The school has a duty under the Child Find regulation and when a parent asks for an eligibility determination. Section 504 child find is at 34 CFR § 104.32 

Child find under the IDEA is at 34 CFR § 300.111. 

Most conflicts in special education are resolved informally. That is, they are either resolved in IEP meetings between the school district and the parents, by mediation under the state special education regulations, or as a result of a state administrative complaint (which is not a request for a due process hearing) and investigation report.  Formal resolutions come about after either the parents or the school district request a formal impartial hearing (due process hearing). 

Whether the school district and the parents resolve a dispute informally or formally, an adversary relationship between the parents and the school district exists during the resolution process because special education disputing rules are present throughout the federal and state laws for special education.  They are the parental rights and procedural safeguards. The IDEA procedural safeguards are significantly different from the 504 procedural safeguards. Are at 34 CFR Part 300, Subpart E

The Section 504 procedural safeguards are at 34 CFR § 104.36. 

Once a party requests a formal hearing, other rules also govern the disputing process.  These are the rules about evidence, civil procedures, and so forth that will control how the formal hearing will proceed from beginning to end.

Aggressiveness

The adversarial process, which for this discussion means the procedural rules, is theoretically objective and emotionally neutral. Yet, when our child's educational welfare is on the line, we want to be, or we want our advocate to follow, the junkyard dog model of advocacy.  Be honest.  Any advocate must operate within the bounds of ethical and responsible standards as they argue for a student’s needs. The question is, at what point does acceptable zealous representation becomes unacceptable aggressiveness?  

As a starting point for discussion, we can say that whenever a parent disagrees with a school district about an IEP problem, the parent has a complaint.  So a complaint that is not formally filed with a department of education for a hearing or in a court of law is merely a disagreement about how the local education agency has identified, proposed, or is implementing, something related to child's individualized special education program.

Even though the IDEA contains an elaborate collaborative assumption, disputes frequently displace the collaborative cornerstone of collaborative parental involvement in the IEP process.

Complaining is a normal and anticipated factor in special education.  One reason complaints are normal and anticipated is that without complaints, the legislators would have no way of knowing what parts of the law should be adjusted or corrected. In other words, complaints keep the legislators informed about how well or how poorly the law is working.   

Complaints are necessary and proper advocacy methods for getting better services, correct disputable situations, or getting reform.  However, complaints are more likely to get results by beginning at the lowest level possible, and by using the least pressure necessary. The reason is that beginning here gives you more options later and the best chance of success without spending a huge amount of money. 

Ok, so we have talked about what complaints are, why they exist, and a few things about trying to resolve a special education dispute at the lowest level possible (in the Team meeting, for example).  The real question is how to go about it with enough zeal to be assertive, and pull the emergency brake before our complaint escalates to a contest to see who can hit hardest and keep standing longer. 

Here are some guidelines that will keep you on track to get what the student needs – and – either repairs the collaborative relationship with the school district or creates one that has been destroyed.

A list of Things to Do:

The real purpose of a complaint should not be to satisfy the advocate's or a parent's ego. It is not to get attention, nor is it intended to get revenge for a situation by nettling the school folks.  The purpose is also not simply to assert power over the larger, more powerful school district and their attorneys.

  • Be direct, diplomatic and personable,
  • Work with the school district with a perspective of shared interests. 
  • Project your own point of view while also acknowledging that the school district folks may have a legitimate difference of perspective.
  • Acknowledge that you appreciate the difficulties the school district folks have. 

The purpose of the complaint should be to get a specific result.

When a complaint is made, how we behave as we make it can make or break a case. We do not gain anything by merely satisfying some emotional need.  Emotional complaints risk total loss of credibility and any purposeful result. Our priority must be getting a fair and just result with as few delays for the student as possible.

In the beginning, there was a complaint.

A complainant should be constructive, not critical.  Facts speak more loudly than harping about individual past behaviors or attitudes. Talk, or write, about the problem, not individuals.  Be forward looking.  Prepare yourself to be convincing and clear about how the solution you proposes can make the future better for everyone involved.

Remember that our objective is to get what the student needs.  We are not there to show anyone how great we are. Our job is to do heroic things, not to be heroes.

A List of Things Not To Do:

  • Do not be argumentative
  • Do not be sarcastic
  • Do not be abusive
  • Do not think this is a game of one-upmanship
  • Do not play lawyer unless you are one
  • Do not ridicule the school district members of the IEP team 
  • Do not fail to appreciate that the school district IEP team members may have problems and restrictions handed down by someone higher up on the food chain.
  • Do not get into a shouting match with the school district's attorney.  You will lose because attorneys make a living taking abuse.
  • Above all, do not lose your temper. Losing your temper will lose services for the student because the result is the substance and merit of the problem you are trying to fix becomes secondary to a power struggle. Focus on the problem at hand. 

Principles:

(1) The real purpose of a complaint is to get something changed. 

  • Know how to define the specific problem;
  • Know what solution is practical (Can the school district do what you want done?);
  • Know what solution is possible (Is the solution allowable under the IDEA or State law?); and
  • What solution will satisfy you? (Will it fix the problem?).

(2) Be credible.

  • Know the facts (Know the difference between facts that matter and those that don't),
  • Appear "reasonable,"
  • Be sure that the solution you are wanting is within the ability of the school district to provide.

Platitudes:

  • There are no Perry Mason Moments during Special Education Due Process Hearings
  • When the Pin is pulled, Mr. Grenade is no longer your friend.
  • When the stuff hits the fan, the stuff is not distributed evenly.
  • The fight with the school is not about you.  It is about your child's education. 

A few words about aggression:

Aggression and pressure are related.  As human beings, we tolerate some aggression and pressure as a matter of living.  However, the line between excessive aggression and too much pressure relate in an interesting way. 

Imagine for a moment that you and a lifelong friend are in a restaurant eating with a group of people who are not known to either of you.  Imagine that the bill comes and you discover that you did not bring any money with you, and you need twenty dollars to pay your part of the bill.  You trust your friend, and your friend trusts you.  Twenty dollars is no big deal to either of you.

As you discover you left your money at home you say to your friend, "Give me twenty dollars."  If your friend has an extra twenty dollars, there is no pressure.  But – what if your friend does not have an extra twenty dollars, and does not want to admit that in public?  Pressure?  You bet it is. 

Pressure soon becomes aggression when you say, "Oh, come on.  Just give me twenty dollars."

Aggressiveness, then, is a matter of degree, an attitude, a state-of-mind.  Adversary, on the other hand, is a process, which has nothing at all to do with state-of-mind.  The adversarial process is, in the United States, the accepted process for sifting out the truth and settling disputes between opposing (adverse) parties.

You are invited to post questions for Brice about this article or any other special education question on the INCIID Ask The Advocate Forum 

About the author:

Brice is a special education advocate who works with parents across the country. He has practiced, taught and written about special education advocacy since 1995.  His articles have appeared in The Beacon Journal, published by Harbor House Law Press, Autism Asperger’s Digest, published by Future Horizons, Inc., Family Focus, the quarterly newsletter published by Families for Russian and Ukrainian Adoption (FRUA), and various articles appearing at www.wrightslaw.com. Some of the Wrightslaw articles are: Do the Documents Speak for Themselves?How to Prepare Your CaseLearning To Negotiate Is Part of the Advocacy Process, and How and Why to Tape Record Meetings.

Brice lives out in the woods near Benson, Vermont.  Your can reach him by phone at (802) 537-3022.
Brice also answers questions on the Advocacy Forum on INCIID or you can Email him.

Download the PDF Article/Slides with Notes

 


[1] The same principals apply to state administrative complaints and complaints filed with the Office of Civil Rights (OCR).

[2] A parent can also claim retaliation by the school for engaging in a protected activity. For example, advocating for the child is a protected activity.

Photo of an old woman smoking a cigar.
Hey, can't we talk it over?

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Yes - the PDF is on the site

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