[[NOTE: Feel free to ask questions about this or any article on the Ask an Advocate Forum where Brice Palmer will answer your questions.]
Do not fear inviting the elephant into the room.
By Brice Palmer
Our last article talked about arguments in the legal sense and how we came to have a particular set of rules and procedures for making formal legal arguments. The article also talked about how to apply the principles of those rules when we “make our case” during Team meetings with the school. Several parents and advocates called or sent email messages to me about the article. Some asked follow-up questions. Some asked for an example of how to apply the principles in real life. [NOTE: Watch the Workshop from April 22, 2015 7:30 PM ET]
The purpose of all the INCIID special education articles is to give insights and methods for applied advocacy that all of us need for efficiently coping with special education problems.
Sure. The laws are important. Very important. How we choose to use those laws in our day-in and-day-out dealings with a school district is more important. Without advocacy skills, the law is as unappetizing as a stalk of wilted celery.
Our goal is to make the student the primary subject of the laws and make the laws personal to the student; not us.
The theoretical problem in this article is a made up set of facts. You can use this method to analyze and put together your argument. Once you have a solid argument you will have confidence that you can present your case during a Team meeting. Your argument also helps as you write a state administrative complaint, request a due process hearing or write a complaint letter to the Office of Civil rights (OCR).
Which is more important:
to your child?
Making a good argument is wicked fun.
Develop a solid argument – apply Ockham’s razor Ockham's razor is a problem-solving principle devised by William of Ockham (c. 1287–1347), In plain language, Ockham’s razor means:
If you have two equally likely solutions to a problem, choose the simplest, or The explanation with the fewest assumptions is most likely to be correct, or Keep it simple.
Framing a “legal” argument
A legal argument? Yes. When you write a letter that asks the school to do or change something, you should support your request with a legal styled argument. When you make your case at a Team meeting your presentation, do it with a legal styled argument.
Does that mean you must be formal and stick to the language of lawyers? No. It does mean the form of your argument must follow a formula. The formula forces us to analyze the problem in steps. You can then put your conclusion in plain language for letters to the school or more formal complaints when you use your State forms for administrative complaints and due process requests.
Choose your argument
Build (frame) your argument
Disprove (rebut) the school district’s argument
Style your argument
Remember that any contact you have with the school is an opportunity to negotiate. Sounds silly, but it is true. Each email message, letter, phone call, and Team meeting is an opportunity to educate the school district about what your child needs and why your child needs it.
Choose Your Argument
(A) Carefully examine the IEP or 504 plan. Decide which part, or parts, of the Plan you suspect do not provide a free appropriate public education. Yes, a Plan can be picture perfect except for one exception. Even one exception can be a violation that denies FAPE.
(B) Once you identify which sections of the Plan that might deny FAPE, write a memo outline for each suspected section or Team decision. In this illustration we will state and analyze one issue.
Example: Student is 12 years old and has had an IEP since second grade. His category of disability is other health impaired (OHI). During the last Team meeting the district pulled the plug on the IEP because the student is making passing grades.
(C) What rule controls this issue?
This is an eligibility question answered by the IDEA Child Find section at 34 CFR Section 300.111 (c)(1). You can read the rule here: https://www.law.cornell.edu/cfr/text/34/300.111 and 34 CFR Section § 300.8 (a)(1) Child with a disability. You can read the rule here: https://www.law.cornell.edu/cfr/text/34/300.8
NOTE: If you do not have a copy of the federal regulations you can usually find the right information or a clue to the right information at www.wrightslaw.com. Go to Wrightslaw and use the search function. Write a short description of what you want to find and you will usually find what you need. For example, I used this function by putting the following in that search window: "advancing from grade to grade". Also note that when you get a result from the search, make certain the result you choose to read refers to the current (IDEA 2004) or Section 504 regulations.
(D) What credible or undisputable facts do you have that prove your argument? The best source of undisputable facts are in the student’s education records at the school district’s offices. These are education records the school district writes, letters to you or from you, and so forth.
On February 20th 2015, Nimrod’s mother received a Prior Written Notice for a Team meeting five days before the meeting. The Prior Written Notice informed Nimrod’s mother the District proposes to end Nimrod’s IEP because Nimrod is making passing grades.
What choices are available to Mother?
A. She could formally ask for a due process hearing and invoke “stay put.”
B. She could do nothing and Nimrod would be on his own without specialized instructions and needed related services, modifications, or accommodations, or any combination of those four.
C. She could attend the Team meeting and make her case for why the school is wrong and why the District should not pull the plug on Nimrod’s IEP.
D. She could make a formal request for Old Overshoe School District to evaluate Nimrod for eligibility under Section 504.
Did Old Overshoe School District deny Nimrod a free appropriate public education because the district
(A) did not evaluate Nimrod prior to the district’s decision to significantly change his educational placement by terminating his IEP,
(B) did not give due consideration to Dr. Drew’s diagnosis of Kleinfelter’s syndrome and sleep apnea,
(C) did not give due consideration to Dr. Drew’s supporting evaluation report and recommendations before ending his IEP, and
(D) did not recognize the IDEA says a child is entitled to a free appropriate public education (FAPE) even if the child is receiving passing grades, progressing from year to year, or has not been retained from progressing to the next grade level (34 CFR Sec. 300.101(c))
Facts from Nimrod’s official education records:
(1) Old Overshoe School District found Nimrod eligible as a child in need of special education in July of 2003. (Evidence – July 2003 eligibility determination and July 2003 IEP.
(2) The basis for Nimrod’s eligibility determination was the school nurse’s opinion that Nimrod has ADHD. The school psychologist agreed. (Evidence - July 2003 eligibility determination, school nurse’s report and the school psychologist’s comments in the report).
(3) Between 2003 and 2012 Nimrod’s functional performance in the classroom declined. He often fell asleep during class, had an increased inability to pay attention, and often failed to bring his homework to class. Nimrod began having trouble with reading and speech during the 2014 school year. [Evidence – copies of personal email messages from Nimrod’s paraprofessional to Mother. Copies of the email messages are complete with the header data that prove the time, date, and sender.]
(4) The annual review of Nimrod’s IEP for the 2013-2014 school year considered Nimrod’s functional performance. Because of the annual review the District amended the IEP to include a paraprofessional for Nimrod. The paraprofessional attended each class for academic subject Nimrod was assigned to. (Evidence – 2013 amended IEP and 2014—2015.IEP).
(5) In January of 2015, Nimrod’s pediatrician referred him to Nancy Drew, M.D., who is a board certified neurologist. Dr. Drew’s diagnosis for Nimrod is Klinefelter's syndrome and chronic sleep apnea.
(6) Nimrod’s mother notified the school district Team on February 5th, 2015 about Dr. Drew’s diagnosis and gave the School District a copy of Dr. Drew’s evaluation report. She also asked for an IEP meeting for February 25th or an alternate date that suited the school district’s schedule. The school district scheduled the IEP meeting for February 25th. (Evidence – Email message from Old Overshoe that confirmed the meeting date and receipt of Dr. Drew’s evaluation report and recommendations).
(7) The paraprofessional resigned on February 15th, 2015. [Evidence-School Bulletin published February 16th, 2015 on Old Overshoe School District web site at www.oldovershoeschool.org. The bulletin invited staff and parents to the paraprofessional’s going away party in the school cafeteria.
(8) Prior Written Notice for the February 25th IEP meeting. The notice include a statement saying the
(9). Prior to the IEP meeting the district did not ask for—nor did it conduct—an evaluation of Nimrod. [Evidence – Nimrod’s education records do not include an evaluation during the time period in question. There is no informed consent form signed by Nimrod’s mother for an evaluation during the time period in question in Nimrod’s education records.
(10) The school should have conducted an evaluation because ending an IEP and all special education services is a significant change in educational placement. (Evidence – There are no education records in Nimrod’s official files that show evidence the district complied with the evaluation requirement under 34 CFR 300.503 and 34 CFR 300.305(e).
Old Overshoe School District denied Nimrod a free appropriate public education because the district failed to (a) evaluate Nimrod prior to the district’s decision to significantly change his educational placement by terminating his IEP, (b) give due consideration to Dr. Drew’s diagnosis of Kleinfelter’s syndrome and sleep apnea and (c) failed to give due consideration to Dr. Drew’s supporting evaluation report and recommendations prior to terminating his IEP, and (d) Failed to appreciate that the IDEA provides that a child is entitled to a free appropriate public education (FAPE) even if the child is receiving passing grades, progressing from year to year, or has not been retained from progressing to the next grade level (34 CFR Sec. 300.101(c))
Ask the school district to fix the problem;
This is the denouement. The climax of the argument. This is the closing question. After you complete your argument and state your conclusion, do not pause, do not take a breath – ask your closing question. A closing question is one that asks for an answer that makes a commitment.
What does Old Overshoe intend to do to fix this problem?
When can I expect the Team to reinstate Nimrod’s IEP?
The District can give Nimrod a free appropriate public education under the IDEA or Section 504. Which one does the District prefer?
Warning. When you ask the closing question, SHUT UP. Do not say a word. Even if it seems like a whole hour goes by – DO NOT SAY A WORD. If you do, you will give the school district an opportunity to reopen the argument and you can bet your last dime that you will lose.
Applying the shut-up rule applies the maximum amount of pressure on the District to say something – anything.
NOTE: For state administrative complaints, due process hearing requests and OCR complaints, this “closing question” is put in the form of what remedies you want the authority to award. Remedy is a highfalutin word for what I want the decision maker to do about it.
Everything in this article takes practice and patience. Find a friend who will practice with you so you can become comfortable with your argument and closing statement. Practice, practice, practice.
Then, when you go to the meeting you will be far better prepared than the school district people.
One other thing. After you get this technique down, teach another parent in your school district how to do it.
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 Case, Learning 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.
You are invited to post a question for Brice about this article or any other special education question on the INCIID Ask The Advocate Forum by going to
An appropriate education must provide access to education "sufficient to confer some educational benefit" upon children with disabilities. Board of Education of the Hendrick Hudson Central School District v. Rowley, 458 U.S. 176, 102 S.Ct. 3034, 3048, 73 L.Ed.2d 690 (1982).). Some Circuit Courts have interpreted the “some educational benefit” phrase to mean the IDEA requires more than a trivial educational benefit, or, more than a “de minimis” benefit. For example, Polk v. Central Susquehanna Intermediate Unit 16, 853 F.2d 171, 180, 182 (3d Cir. 1988), cert. denied, 488 U.S. 1030, 109 S.Ct. 838, 102 L.Ed.2d 970 (1989).
For 504 plans, identify the facts that you believe prove discrimination or retaliation, or both, or denial of FAPE under Section 504. You can acquaint yourself with the full range of Section 504 complaint processing by OCR at http://www2.ed.gov/about/offices/list/ocr/docs/ocrcpm.pdf This is the 2015 version and is a downloadable pdf document.
In formal complaints this is part is in the form of a question. For example, Did (or whether) the Old Overshoe School District deny the student of a free appropriate public education by significantly changing his educational placement without first conducting an evaluation as required under 34 CFR 300.503 and 34 CFR 300.305(e)?