Thursday, July 06, 2006

Why Elections and Court Appointments Matter to Parents of Special Needs Kids

In a 6-3 ruling issued June 23, the U.S. Supreme Court said that parents cannot expect to get reimbursed for the cost of expert testimony when they win a special education legal proceeding on behalf of a disabled child.

The point of law in this case, Arlington Central School District Board of Education v. Murphy, is narrow, but the implications -- combined with other recent outcomes in Washington, D.C. -- mean that parents should pay attention to who wins seats in Congress in November and the White House in 2008.

In this case, the Arlington, N.Y., school district won its point that the Individuals with Disabilities Education Act of 2004 (known as IDEA) does not spell out a school district's responsibility to pay for experts which a parent hires to help win a dispute. (The law does spell out reimbursement for legal fees.) Special education lawyer Peter W.D. Wright has written a clear explanation of the Arlington v. Murphy case. The key point is that Judge Samuel Alito's majority opinion in the ruling (see link above) states that parents can't be reimbursed for expert witness fees in a special education legal case which they win, because Congress didn't spell that out specifically in the law.

So, why does that matter? Well, if you are a parent of a kid with a disability like autism, the last thing you want is a legal fight with a public school district. More likely, you are hoping for a good working relationship, one that brings out an individualized education plan (IEP) to guide educators working with your child to make important progress in the short term and succeed in the long term.

But what if you don't have that relationship? What if you disagree? Many school districts have full-time special education administrators, child development specialists and lawyers to help them understand how the law applies to specific children's cases -- and how to defend their legal positions. What do parents have? An understanding of their kid's needs, a supportive family and friends if they are lucky. Legal rights which federal law provides. But if they don't have legal expertise or access to it, they might be out of luck against a well-armed school district.

This point about an imbalance of power was lost on the Supreme Court in its 2005 decision, Schaffer v. Weast, which says that the burden of proof in special education cases falls on the party seeking relief. (Often that means the families of special needs kids.) Again, the Arlington v. Murphy case is narrower, less important in the big scheme of things. But it points to a reality: the imbalance of power, one that puts parents in an uphill climb before the trip begins, will continue. It will continue unless the federal laws regarding special education change to address this imbalance. And that won't happen unless advocates for disabled children seek out candidates who understand this point of view.

So, in the coming election season, if you have the chance, become a citizen. Ask questions. While it might be difficult to ask questions in a public forum related to your particular case (and if you do ask, it could be difficult to get straight answers), there are other questions to ask a candidate: What does he or she think about IDEA? Does it need changes? What kinds of changes?

For parents of children with autism spectrum disorders, you could ask what should Washington's role be in addressing the rising number of autism cases? More specifically, you could ask whether they are a co-sponsor of the House Bill 2421, the Combating Autism Act of 2005, which provides funding for autism screening across the nation, regional centers for medical care for people with autism, and research into interventions for ASD. Don't forget to ask them why they are for or against it.

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