Families and Students Who Need Legal Support with Special Education and Other Education-Related Disability Rights

My Son Isaac’s Story

Legal issues in education are painful and difficult for families for many reasons. First, they are already dealing with the life challenge of raising a child with disabilities. Second, in many cases parents may have little or no support from other family members, and often they are single parents, and then they must face the complexities of the daunting legal system. And third, it can be horribly expensive to retain a lawyer. When any person or family must face these challenges, it’s easy to get overwhelmed. Now that I’ve opened my own law firm, I’m passionate about representing students who have disabilities—especially students with learning disabilities (often referred to as “special needs,” although this language is increasingly considered outdated)—and to help their families navigate the challenges without being overwhelmed.

For context why I’m passionate about this, I’d like to share the story of my own son’s special education in Colorado. My immediate family moved here from California in 2011. And by the way, I’m a Colorado native and I grew up here. I explain that because we felt discriminated against since we were coming from California. We moved to Northern Colorado, and we felt like we were outsiders even though I was born and raised here and even my grandfather was born in Colorado in 1900 and for decades had a cattle ranch just miles away in Weld County.

My son was in kindergarten when we left California, and he has autism and several other disabilities, and he had an IEP. Anybody who is involved in special education knows what an IEP is. And my son’s IEP was very robust. California was doing a really good job with his education and to support the team at his incoming Colorado school district, we sent them Isaacs’ IEP ahead of time. We didn’t want there to be any surprises and we wanted his transition to be smooth. But the new school district took one look at the IEP and made a decision, behind our backs, that they didn’t want to have anything to do with his IEP. They were going to come up with their own watered-down IEP and cram it down our throats.

We learned this after the fact. Initially, all we knew with the new school district was that we were getting a lot of resistance and everything was uncomfortable. Because of this, we felt like it was important for us to get a good understanding of what kind of education records they had collected on our son. And so, we made a request to obtain his education records. There are several ways parents can do that in Colorado. There’s the Open Records Act, which gives you rights to your child’s education records. There’s also FERPA, a federal law, which also gives you rights to your child’s records.

After making these requests and seeing just the first handful of documents, we were aghast. The school district’s head of special education—the person responsible for all Integrated Services in a public school district serving nearly 30,000 students–had decided, quite literally, to deny our son an IEP that included our input and then to engage in a cover-up. This is vitally important because under the IDEA, the applicable federal law, and Colorado’s Exceptional Children’s Educational Act (ECEA), parents have the legal right to participate in their child’s IEP. But Isaac’s new school district effectively wrote its own IEP for Isaac before ever meeting him or us. We learned through Isaac’s records that the head of special education for the entire school district had sent an email to her deputy telling her to instruct all the special educators who were involved in crafting this plan to delete and destroy all prior revisions and all prior communications that they had related to Isaac. It was a true smoking gun. I’d never seen anything like it in my legal career. That one record by itself provides a touchstone for hours of legal education for anyone who may ever be involved in litigation, but that’s another story.

For Isaac, it made clear that there had been an illegal scheme to deprive him of his special education rights. Naturally, that led to a legal proceeding under the Colorado Open Records Act and several years of animosity between us and the school district. Fast forward a couple of years, and Isaac came due for his triennial evaluation. As part of that, the district requested Isaac submit to a battery of some 25 tests, including a medical examination of Isaac under anesthesia. We lacked a good understanding of what the tests were, why they wanted to conduct them, or how they planned to use the results, so we gave our consent only for them to run the ones we understood. Most notably, we denied their request to conduct the medical exam. We believed they wanted to conduct that exam this because they had a theory that, due to a soft cleft palette he was born with, there were certain sounds that he would be unable to produce. We believed they wanted to use his medical records, essentially, to say there’s no reason to provide him speech therapy because he’s incapable of producing certain sounds. But because no one explained the exam or its purpose to us, and likewise for several of the other tests, we refused consent.

Remarkably, the school district then sued us. They filed a lawsuit against me and my wife to use the so-called consent override provisions of the IDEA to force Isaac to submit to these tests without our consent. We defended.

The way it ended, in a strange turn of events, was amazingly positive. The first go-around, under the Open Records Act, we used outside attorneys. It was horribly expensive, painful, and nobody won. This time around, we decided to defend ourselves, meaning I was going to be the legal counsel pro se for my family. I’m an attorney, but it’s not really being an attorney when you’re doing it for yourself, pro se. Everybody will tell you, only a fool has himself for an attorney. But this time, we found, ironically, that it was best approach by far. What happened was that the school district put its lead psychologist on the witness stand, and in cross examination, I just asked her, “Dr. T—-, is there a reason that you can’t tell us right now who’s going to conduct these tests, what’s going to happen in the tests, and what the results are going to be used for?” And she said, “No, I can tell you.” And I said, “Well, then I don’t think we need to have a lawsuit, because that’s all we asked for to begin with.” And she explained it all, and a few minutes later, we resolved the case.

I think the school district learned through that experience that we were reasonable human beings who just wanted transparency from the school and what was right for our son, both morally and legally. And we very quickly agreed on many things and the relationship turned around, a complete 180 degrees. From that point on, everything was better.

Thinking back on it, Isaac started in kindergarten and, recently, we left that school district when he was just about to head into his sophomore year. And for most of those years, he got a great education there. The relationship was so positive in the end that the main person in charge of Isaac’s special education shed tears when Isaac had to leave the district because they loved him so much there. We attribute this, of course, to Isaac’s charismatic personality and the way he has of making others feel good. But we also know that everything ended well at that district because we stood our ground for what was right, and, ultimately, did so in a very pragmatic way.

Through all this, in way that no attorney can appreciate unless he has lived through it with his own child, we learned some critical things about navigating your child’s education in difficult circumstances. First, you absolutely must be pragmatic. If you are at polar opposites with your school district, you won’t make progress. You need to understand their weaknesses, strengths, and constraints, and avoid making unreasonable demands. Second, and related, you need to appreciate the school’s perspective. Even when it’s difficult, you need to listen with an open mind and heart to understand how the special educators and related service providers plan to educate your child, and then do your best to support them. I’m not saying to acquiesce and just let them take over, but to make collaboration a two-way street. I recognize that these are generic ideas and that the devil is in the detail with every child’s special education, but keeping these two principles in mind will always help you.

It’s an important life story for parents and guardians because, first and foremost on people’s minds when they’re raising a student with disabilities, they want their student, their child, to be as successful and fulfilled in life as possible. The foundation for that is the child’s education and what happens with them and to them and for them in school. And if those things aren’t on the right track, it’s impossible for the family to enjoy all the other things that life has to offer, like going to the movies, skiing, or participating in the Special Olympics. So, one thing I want to do with my new practice is to help families resolve their disability-related education problems so that their students get the education they deserve and to which they’re entitled by law. I want to create peace of mind for families so they can feel free to enjoy all the other things that life has to offer.

A friend of mine put it to me this way right around the time I reached age 50 and he reached age 55. He said, Ephraim, it’s time for you to think about going from success to significance. Success is something you bring to your immediate family. Significance is something you can bring to the greater community. He was right. In this next phase of my life, I hope to move from success to significance, and that’s why I want to help families and their students with disabilities.

If you have a student in your life who has disabilities and their education isn’t going as well as you think it should be, and you think their legal rights aren’t being honored, call me. I would love to talk to you about the issue and help you on the path to a better relationship with your school, to the education your student deserves, and to peace of mind that your student is receiving the best opportunity to fulfill his, her, or their capabilities.