Episodes
Friday Mar 13, 2020
Advocate's Insider: The Separation of Cognition from Autism
Friday Mar 13, 2020
Friday Mar 13, 2020
Introduction
Welcome to Advocate's Insider, an online publication of KPS4Parents. KPS4Parents is a non-profit special education and disability resource organization. My name is Anne Zachry, and I'm our organization's CEO, as well as the host of this patron podcast. I have been a special education and disability resource lay advocate since 1991, a paralegal to attorneys representing individuals with disabilities since 2005, and an educational psychologist and behavior analyst since 2013.
Advocate's Insider is a patron-only program intended to assist special education and disability resource advocates around the United States develop their advocacy skills and increase their chances of achieving appropriate outcomes for the individuals with disabilities whose rights they work to protect. The content published on Advocate's Insider is based on my own experiences and those of my colleagues regarding special education and disability resource advocacy in the public sector.
None of the content on Advocate's Insider should be considered as formal legal advice. If you require formal legal advice, please seek the counsel of a qualified attorney.
If you are a parent, educator, or activist looking to improve your knowledge and approaches to advocating for individuals with disabilities from a technical standpoint, then Advocate's Insider is an appropriate resource for you. Professional and volunteer advocates alike can always stand to improve their skills, and we seek to add to the body of resources available in this unique, specialized field.
Patron proceeds generated by Advocate's Insider are used to support our public education efforts via social media. Your patronage is genuinely appreciated and is used to help individuals with disabilities and their families throughout the United States through education and technical assistance.
If you are listening to this podcast, please be aware that there is a text-only transcript on the PodBean post for this podcast that includes hyperlinks to online resources that can serve as additional useful information. Whenever such a resource comes up in the course of the podcast, you'll hear a sound like a bell that cues you to where in the transcript you can find each link.
Today is March 13, 2020
This is Volume 1, Episode 3
The title of today's episode is, "The Separation of Cognition from Autism."
I recently had to testify in a special education due process hearing for one of my former students who has autism and severe speech/language delays. One of the arguments that the involved school district was trying to make was that my student's cognition was so low that his parents' expectations of what he could achieve in school were unrealistic and that they were just in denial about how intellectually disabled he really was.
The argument the school district was asserting was, and still is, disgusting because the school district's lawyer was attempting to twist scientific data to mean something it didn't, primarily with respect to cognition, in order to paint an inaccurate picture of a nonverbal child who lacked the means to contradict her. She was literally taking advantage of the fact that he was voiceless to misrepresent his situation to the judge.
The district's lawyer was making a technically weak argument and, if the judge realized what she was doing, it's only going to end up making her look pathetic on the record. Hopefully, my testimony was helpful in shutting her down. The hearing has only just recently ended and the decision hasn't come out, yet, so how helpful my testimony has been remains to be seen.
Nonetheless, it got me to thinking about an issue that has come up more than once over the course of my career. It's one I've seen other experts, one mentor in particular, address on rare occasions in IEP meetings or from the witness stand, but I don't really hear people talking about it that much, otherwise.
This is a topic about which advocates should have a more robust knowledge to apply in the field. That realization has been informed by a previous realization that most people working for public education agencies often understand the nuances of this topic even less than parents, advocates, and attorneys, which was a point driven home once more in another case that I'm working right now for another autistic student who is nonverbal.
Pretty much most stakeholders in special education fail to understand the relationship between autism and cognition, to the degree it's currently understood. As advocates, it's our job to, among other things, promote the application of evidence-based practices supported by peer-reviewed research in the design and delivery of special education. It's what the IDEA requires and what professional ethics demand.
We can't promote what we don't know. What we do know is that the folks at the school districts usually don't know this stuff, either. That puts it on us as advocates to basically provide professional development services to the school district folks in the course of advocating for our students.
It is so much easier to resolve things for a kid if you can spoon feed the correct answers to the district and just ask them to do it, than to expect the district to figure out a decent plan on its own, sometimes. It shouldn't be that way, but it is. Before I became an educational psychologist, I had to ask for school districts to provide things I knew they didn't know how to provide and them sue them for not delivering. That forced them to hire experts that they should have hired in the first place, but at a cost several times greater than it would have cost if they had just hired experts in the first place.
It's gotten much easier for me over time because, now, I'm the expert and I can just call it like I see it. I've pursued the education necessary to understand how to take all the multidisciplinary data and weave them together to accurately describe a student as an individual learner and create individualized programming around those identified needs.
I have also gained experience and pursued additional training to inform my knowledge of the legal requirements of special education, having provided paralegal support to attorneys in due process cases, federal district court appeals, and federal circuit court appeals. The only place I haven't provided paralegal support in a special education matter is the U.S. Supreme Court.
I realize I come at advocacy from a fairly unique perspective, but if you can develop your own advocacy skills enough to work in a similar fashion, even if you have to rely on other people who are experts to support your arguments, you can be equally effective. You just need to know enough of what the experts know to ask them the right questions so that everyone understands their explanations. If you're sitting in an IEP meeting with an expert, that's the best time to ask a million questions. Chances are, other people wanted to ask them, too, but were afraid to ask or didn't know how to quite formulate their questions to get at what they wanted to know.
Public education is institutionally biased from the outset and will allocate resources according to its own convenience rather than student need without realizing it. A school district is large enough of an institution to exist for its own benefit, in which students are the means to perpetuating the district. A lot of people become financially dependent on keeping the school district going such that it serves their financial purposes more than it serves those for whom it was created to serve.
I have seen few aspects of special education in which the science is so far disconnected from actual practice that it results in systemic failures harming a specific class of individuals, as I have with the measurement and interpretation of standardized, norm-referenced IQ tests as part of special education assessments. I have several hypotheses as to why such is the case, but for now I want to focus on the fact that this simply is the case, regardless of why, and we need to deal with it. Way too many people in special education have no idea how to use IQ scores in a scientifically valid way to drive IEP decisions.
It is the kids with autism, particularly those with comorbid speech/language delays, who can really get super screwed by this. This accounts for a whole lot of students for whom we all advocate, so I want to talk about the peer-reviewed research regarding what is known to date about cognition and autism, as well as the federal requirements for special education assessment, in this patron-only exclusive podcast.
First, it has to be understood that autism and cognition both occur in the brain, but they are two separate things. Autism does not automatically result in disabling cognitive impairment, but it does impact cognition, sometimes in spectacular ways. It's not a question of whether autism has an impact on how someone thinks; it's a question of how it impacts the ways each person who has it thinks on an individual, case-by-case basis.
Which gets me to a much subtler nuance of this issue: the grey-white matter junction. I'll try to sum this up as simply as possible because this is a complex area of neurological functioning and the details matter. First you have to understand what a neuron is and how it functions. Bear with me, those of you who already know this as I recap for those who don't.
A neuron is a nerve cell, any kind of nerve cell, and there are an unspeakable number of them throughout any human body. Neurons don't all look alike, but they have all the same kinds of parts that work in the same ways. The "torso" and "brain" of a neuron, if you will, makes up the main cell body and includes the nucleus. Sticking off of it in one direction are branches called dendrites that receive chemical signals from its neighboring neurons. Sticking off in the opposite direction are other types of branches called axons that carry outgoing messages to their tips, called axon terminal buttons, that, based on the messages being sent, release chemicals into the surrounding area to be picked up by the dendrites of its neighbors.
Neurons communicate with each other by releasing chemical messages and picking them up from each other. Neurons work together in nerve bundles and require each other in order to function. It's a naturally occuring gestalt in which the whole is truly greater than the sum of its parts.
The grey-white matter junction of the brain is a space in which the axons of neuron bodies and dendrites located at the outermost edge of the grey matter of the brain reach out into and become part of the white matter of the brain. The grey-white matter junction is made up of specialized neurons that serve as the transition from the grey matter to the white matter. Cognition occurs in the grey matter, utilizing data passing through the white matter combined with pre-existing knowledge archived primarily in the grey matter.
There aren't grey matter neurons and white matter neurons separated by a clean barrier that must be permeated. There are actual specialized nerve cells that are half grey and half white that bridge the transition. It is in this transition that autism is believed to occur.
In autistic individuals who have participated in neurological imaging studies, it has been observed that the grey-white matter junction is not as distinct as it is in typically developing individuals. It has also been observed that individuals with the genetic markers for autism have atypical proliferation, migration, and maturation of neurons, which appears to be happening in the subplates of the grey-white matter junctions of individuals with autism. (https://link.springer.com/article/10.1186/s13229-018-0232-6)
The point, here, is that cognition does not occur in the grey-white matter junction where autism occurs. The grey-white matter junction is the link between the parts of the brain that control the body and the parts of the brain that actually think. The grey matter can be perfectly intact but influenced by white matter differences that rise to the level of defects if severe enough.
When the autism becomes severe enough, cognition may be still technically intact but functionally inaccessible, such that the individual functions as though cognition is impaired. This is one reason why trying to assess for cognition in individuals with autism can be so difficult.
The complexity of it all is immense and I'm totally over-simplifying it here, but hopefully you get the basic idea that in neurotypical individuals, there is a more gradual transition between the grey and white matter than there is in autistic individuals. The gap between autistics and neurotypicals with respect to grey-white matter junction differences is widest in childhood and can close to varying degrees depending on the individual over the course of developmental maturation.
The narrowing of that gap in autistic individuals for whom grey-white matter junction differences present difficult, but not insurmountable, challenges can be facilitated through appropriately targeted instruction and therapies. The ability to accurately process incoming data and output in a manner that is effective in the immediate environment is highly sophisticated and the neurological resources that are necessary to make it happen for any individual are substantial.
When a person's neurology is such that the environment cannot be easily understood and/or the person is unable to act upon it in an effective manner, the person's very survival is threatened. At that point, what is otherwise just a difference in neurology becomes a disability. Disability occurs in degrees of severity and, because no two brains are alike, how such neurological defects manifest in one brain will differ from how they manifest in others.
Further, not all brain differences are impairments. Some are improvements. It is commonly known that, in general, individuals with autism often have strengths in visual-spatial processing. Studies are finding that autistic individuals often have areas of processing that are enhanced by atypical neuron proliferation, migration, and maturation. This is supported by research using magnetic resonance imaging (MRI) to examine the parts of the brain processing fluid intelligence tasks on both autistic and neurotypical individuals. (https://onlinelibrary.wiley.com/doi/full/10.1002/hbm.24074)
If you've ever seen the movie, Temple Grandin, about the autistic PhD professor, animal husbandry expert, and world-renowned public speaker by the same name, the visual processing aspects of how she thinks is wonderfully illustrated through computer animation. Dr. Grandin has authored a number of books about living with autism, one of them titled, Thinking in Pictures: My Life with Autism, which describes Dr. Grandin's enhanced visual-spatial skills and experiences using them to navigate life, including excel at professional endeavors, while still dealing with the challenges of autism.
I met Dr. Grandin once at an event in which she was the keynote speaker and as totally autistic as she was, she was also totally confident and in control of her situation. I was impressed by her strength of character and ability to not just survive, build something amazing for herself and the rest of the world through her work using her highly unique brain to her advantage, and in a time with both women and people with neurological differences were generally exploited, abused, and neglected by society. She rather stood the Patriarchy on its ear just by being herself.
One of my favorite quotes from Jiddu Krishnamurthi is, "It's no measure of health to be well adjusted to a profoundly sick society." I think of it every time I think of trail blazers like Dr. Grandin and, now, Greta Thunberg. Greta refers to her autism as a superpower. She is able to focus on climate change as a topic by way of autistic perseverative thought and ignore harassment by way of autistic pragmatic language differences. Being oblivious to social cues makes it easier to ignore haters and afford little weight to what they have to say. If all they have is emotional hyperbole that makes no logical sense, and they can't rebut her with facts, she has no reason to take them seriously.
The tendency towards being literal, which is very common among autistics, also comes with a tendency to not lie or see benefit in lying. As such, autistics aren't very good at engaging in denial when they encounter a problem that needs to be solved. They become singularly focused on solving it, if they have the necessary skills, or they perseveratively worry about it if they don't have the skills to solve it.
At its most fundamental level, if you want to compare the human brain to a computer, the grey matter that makes up the cerebral cortex is a bunch of processors connected together and connected to and integrated with input and output devices by way of the white matter. The white matter routes and conveys incoming data from the sensory organs to various processing centers of the cerebral cortex, internally shared data among the processing centers of the cerebral cortex, and output data from the cerebral cortex driving communication and behavior to act upon the environment. Where the grey matter is made up of the processors, the white matter is the cabling and routers that connect the processors up to each other and to the sensory organs, and route data into, out of, and among the processors.
This is why we see so many autistic children with sensory processing differences, sometimes to a such a marked degree that they become sensory-avoidant and/or sensory-seeking in a way that interferes with living safely. The connectivity between auditory processing, language processing, speech production, reading, and written output goes all over the cerebral cortex, involving multiple processing centers. They rely on the white matter to convey their communications between and among each other. When the grey-white matter junction is compromised, they are challenged to do so. For some autistic learners, reading with comprehension can be an enormous challenge.
Unlike processing disorders, which generally occur in specific processing centers of the cerebral cortex, the processing centers can be perfectly intact in an autistic brain but unable to communicate effectively with other processing centers because of white matter differences that rise to the level of defects. There is an argument being made these days by the autistic community that their increasing numbers reflect that our species is trying to evolve a more rational and responsible version of itself, hence the Dr. Grandins an Greta Thunbergs out there.
Evolution involves a great deal of trial and error. If the argument being asserted by many in the autism community is true that their contribution to neurodiversity reflects an evolutionary leap that is currently in progress for our species, then the sheer breadth of the autism spectrum makes sense. Nature is indifferent and cruel in many ways. According to this theory, in an effort to achieve an improved version of ourselves, we are creating many new humans who are severely impaired rather than enhanced or are otherwise trapped in nervous systems that prevent them from communicating just how intact they otherwise are on the inside.
It's a spectrum disorder, so there is every degree of severity possible, the most extreme of which is disabling. For those individuals who are relatively only gently kissed by autism and their cognitive hardware is sufficient for accurately reading the environment and acting upon it, their autism is as Greta says: a superpower. These are the individuals with autism who are most likely to pass on their genetic material and contribute to humanity's evolution into a more rational, responsible version of itself than it has been to date.
Greta points out the very things that make her autistic and how they work to her advantage. She is also not without a sense of humor and the ability to throw shade. She's become famous for adopting language from a Tweet by President Trump in which he disparaged her as her profile description on Twitter, effectively mocking him with his own words. It was brilliant dry wit.
Greta is literally the child pointing out that the Emperor is wearing no clothes. And, she's describing his Imperial Junk in no uncertain terms, just to be clear that we're all looking at the same thing. She's singularly focused, as any hero on an issue this big would have to be. She's not impressed by flattery. She has no motive or inclination to lie or sell out her cause.
Greta is unable to adhere to certain social norms, which are not healthy norms in the first place, so it gives her a social/emotional advantage over her neurotypical elders. She's not able to be suckered into a "keeping up with the Jones" mentality because it is immediately obvious to her for what it is, serves no useful purpose, is therefore stupid, and is automatically dismissed. It is counter to the outcome on which she is singularly focused, which is saving everybody, including the neurotypicals, from the consequences of the behaviors of the neurotypicals over the last century-and-a-half, which is destroying ecosystems and making the planet increasingly uninhabitable by our species in the long term.
Greta is a poor candidate for bribery. She is not well adjusted to a profoundly sick society, at all. Her literal way of interpreting everything cannot be appealed to with flowery compliments and gifts. She sees right through things like that. Social norms are largely about social manipulation, which is not something that comes naturally to many autistics. They may see how neurotypicals are behaving and understand what the social expectations are, but they may also fail to see logic in any of it, determine neurotypicals are primitive morons, and fail to take anything neurotypicals say very seriously.
Humans say "please" and "thank you" as social lubricant to get what we want and maintain our social relationships, in addition to as a matter of respect. That's easy enough to learn. But, many people also say things that are not true to get what they want; lie to themselves about things that matter as a method of avoiding dealing with their problems; project their fantasies onto other people rather than appreciate other people for who they each are; and a host of other things that a literal, honest, autistic mind simply cannot do.
The world needs minds like Dr. Grandin's and Greta's, who are unable to fall for a cockamamie story about golden threads being woven into a magic cloak for the Emperor that can only be seen by the competent. In the fable, no one could see this supposed cloak, but they didn't want to admit it because it could only supposedly be seen by people who were competent in their responsibilities and admitting not seeing it was presumably admitting incompetence.
A point driven home by this fable is that the Emperor and his subjects proved their incompetence by falling for the ruse rather than seeing right through it. They were willing to perpetuate a lie and facilitate a con job just to maintain the favorable opinions of others. They were also so dumb with fear that they were worried maybe the only reason they couldn't see the invisible cloak was because they really were incompetent and didn't want anyone to find out, lest they lose their positions and posts.
Self-deceit and self-doubt are very closely related. For this reason, autistic individuals perseveratively focused on a mission according to the facts and rules-based thinking are generally not likely to experience self-deceit or self-doubt. In a world in which maintaining appearances is more important than solving problems, the literal minds of autistics like Greta are incredulous at and stymied by the emotionally dysfunctional priorities of neurotypicals. Like small, but very well informed, children, autistics like Greta have never mastered the ability to engage in self-deceit and the facts speak for themselves, so concluding the Emperor is butt-naked is plainly obvious to them.
It is that difference in the grey-white matter junction between autistics and neurotypicals that alters how data flows into, out of, and among the processing centers of autistic brains from that of neurotypicals. No norm-referenced IQ test is designed for those conditions. As such, no norm-referenced IQ test is entirely reliable when it comes to measuring cognition among individuals with autism. In many cases, norm-referenced IQ tests cannot be relied upon at all, particularly among autistics who also have language delays.
IQ tests are meant to measure what happens in the grey matter. They aren't designed to measure for grey-white matter junction differences among autistics compared to neurotypicals. 34 CFR Sec. 300.304 is significant with respect to these considerations.
Norm-referenced IQ tests do not purport to measure grey-white matter junction functionality or language processing, but impairments in either or both can impact how an individual performs on a norm-referenced IQ test. In such instances, scores reflect the presence of autism and/or language impairment, which IQ tests do not purport to measure. When that happens, the scores cannot be used to describe intelligence because they describe something else.
Collectively, the regulations require that assessments be individualized to the student being assessed and that different kinds of tests be used to make sure the data is valid. There is also the provision for using adaptable testing methods rather than norm-referenced ones where possible, and that goes to what makes norm-referenced IQ tests so often inappropriate for use with autistic students.
Norm-referenced tests require every test-taker to take the measure under the same test conditions as every other test-taker in order for the scores to mean anything. The test-taker has to conform to standardized testing conditions. No modifications or accommodations are allowed. For many students, this prevents them from demonstrating what they actually know. They need accommodations in order for educators to get at their existing knowledge.
Criterion-referenced measures are more reliable in that regard and the regulations provide for these kinds of assessment tools. One such useful measure is the Southern California Ordinal Scales of Development (SCOSD).
There needs to be a great deal more professional development done among public school assessment personnel regarding the individualization of special education evaluations. In particular, there needs to be a tremendous amount of attention focused on how cognition is being measured and how the scores are being used to drive IEP decisions. If cognition is being underestimated on the basis of improper evaluations, then the student is being grossly educationally neglected.
Thank you for supporting our patron-only content and helping us benefit individuals with disabilities and their families throughout the United States. Please subscribe as a patron supporter to get automatic access to all the episodes of Advocate's Insider. If you have any questions about special education and disability resource advocacy, please email us at info@kps4parents.org or post a comment to this podcast.
All content is copyrighted by KPS4Parents, which reserves all rights.
Tuesday Mar 03, 2020
Advocate's Insider: Revisiting the "Pyramid of Retaliation" in the 21st Century
Tuesday Mar 03, 2020
Tuesday Mar 03, 2020
Introduction
Welcome to Advocate's Insider, an online publication of KPS4Parents. KPS4Parents is a non-profit special education and disability resource organization. My name is Anne Zachry, and I'm our organization's CEO, as well as the host of this patron podcast. I have been a special education and disability resource lay advocate since 1991, a paralegal to attorneys representing individuals with disabilities since 2005, and an educational psychologist and behavior analyst since 2013.
Advocate's Insider is a patron-only program intended to assist special education and disability resource advocates around the United States develop their advocacy skills and increase their chances of achieving appropriate outcomes for the individuals with disabilities whose rights they work to protect. The content published on Advocate's Insider is based on my own experiences and those of my colleagues regarding special education and disability resource advocacy in the public sector.
None of the content on Advocate's Insider should be considered as formal legal advice. If you require formal legal advice, please seek the counsel of a qualified attorney.
If you are a parent, educator, or activist looking to improve your knowledge and approaches to advocating for individuals with disabilities from a technical standpoint, then Advocate's Insider is an appropriate resource for you. Professional and volunteer advocates alike can always stand to improve their skills, and we seek to add to the body of resources available in this unique, specialized field.
Patron proceeds generated by Advocate's Insider are used to support our public education efforts via social media. Your patronage is genuinely appreciated and is used to help individuals with disabilities and their families throughout the United States through education and technical assistance.
If you are listening to this podcast, please be aware that there is a text-only transcript on the PodBean post for this podcast that includes hyperlinks to online resources that can serve as additional useful information and to illustrate the points I'm making. Whenever such a resource comes up in the course of the podcast, you'll hear a sound like a bell that cues you to where in the transcript you can find each link.
Today is March 2, 2020
This is Volume 1, Episode 2
The title of today's episode is, "Revisiting the 'Pyramid of Retaliation' in the 21st Century."
Many years ago, rumor has it that there was a professional development conference for conservative public education administrators and their attorneys run by an organization that provides guidance to these individuals by way of professional publications, conferences, and trainings. This population of individuals has generally asserted since the passage of the Education of All Handicapped Children's Act (EAHCA) in 1975, which ultimately became the Individuals with Disabilities Education Act (IDEA), that the Act in any form places too onerous of a burden on the public education system.
These were the individuals who were successful in establishing the Rowley Standard in 1982, limiting the definition of "meaningful educational benefits" as a legal matter of FAPE, to a "basic floor of opportunity," and with the explicit understanding that true equal access was unachievable and, therefore, expecting it was unrealistic. They hobbled the Act by way of appealing to a Supreme Court made up of individuals who knew nothing of educational psychology, human development as a science, and what was legitimately achievable with the right resources in a classroom. The language from the resulting case law of that era described FAPE as not being the "Cadillac" of an education, but "a serviceable Chevy."
That is, until the Endrew F. decision in 2017, which raised the standard of defining "educational benefits" as a matter of FAPE as "appropriately ambitious" in light of each student's unique circumstances, meaning as close to grade-level or developmental norms as possible, depending on the age of the student. In the period of time that has passed since the Act was enacted in 1975 to now, a lot has changed. Further, the current version of the Act requires the application of the peer-reviewed research to the design and implementation of IEPs on an individualized basis for each special education student. We're now basically talking about a serviceable Prius instead of a Tesla.
Not only has the peer-reviewed research revealed what is achievable when done right, society is evolving into a more feasible construct of individuals collaborating with each other towards common goals rather than competing with each other over resources. The turmoil our species is currently experiencing is, in my opinion, a matter of social and behavior analytic psychology that was both inevitable and predictable.
Piaget's Stages of Development is also a model that works for me to express the concepts that I'm trying to communicate, here, so bear with me as I go down the rabbit hole of a particular theorist's lingo. The real divide in our species, today, isn't between conservatives and liberals, though it can look that way on the surface as a result of correlations mistaken for causative relationships by those who are not skilled at discerning correlation from causation. That is something mastered with respect to physically observable phenomenon at the Piagetian Stage of Concrete Operations, and on an abstract level necessary for adult-level problem-solving and critical thinking at Formal Operations.
Mastering the discernement between correlation and causation using things you can see, touch, manipulate, and operate, on a physical level, gives you metaphors and analogies that help you understand abstract concepts later on, which is why Concrete Operations must always be sufficiently mastered before you can think at the level of Formal Operations. For example, the idea that making decisions on the basis of emotions is like building a house out of smoke, but making decisions on the basis of facts is like building a house out of bricks is driven home by the references to physical equivalents that illustrate the abstract concept being explained about adult-level decision-making.
Formal Operations are triggered by the last brain growth spurt of childhood, the onset of which occurs at puberty. This is why teenagers suddenly think they know everything; a part of their brain has come online that allows them to think abstractly and start putting two and two together to arrive at four on their own, which hadn't occurred to them before. It's purely the result of a part of the brain that wasn't previously being used coming online and suddenly adding a way of thinking that the child didn't have before.
Teens also start to see through all of the BS being put out there by the adults around them and can stop trusting what adults say if exposed to too many assertions that contradict what can be observed, which has more to do with where the species is developmentally, right now, than with individual development, per se, though it's fair to conclude that individual development is inextricably intertwined with the development of the species as a whole. This becomes particularly troublesome when their parents have not achieved Formal Operations, themselves. That's a topic worthy of detailed discussion of its own, but I'll save that for another time.
Bottom line with respect to today's topic is that developmentally intact teenagers have adult cognitive hardware but lack the experience to inform it's proper use. Each developmental stage is bled into from the one before it, with some skills emerging at the higher level at the same time that skills at the lower level become mastered. Formal Operations creeps up on those who achieve it, slowly coming online and eventually freaking them out as they proceed through adolescence. Some folks never finish the stage. Some folks never make it to Formal Operations in the first place. These considerations go to today's topic.
Everybody moves forward through the same stages in the same order, but not at the same pace. Everybody's developmental profile is unique as a result of genetic, experiential, and environmental factors. No two people have identical brains or developmental profiles, just like fingerprints and retinal patterns. We're that way by design; it's the design that works to give our consciousnesses living machines to occupy and act upon this physical reality as it currently exists, which is also ever-evolving.
Darwin explained that environmental factors drive the development of physical and mental traits in each species over the course of its evolution. Skinner took that realization one step further and determined that environments drive the development of specific behaviors in individuals over the course of their lifetimes. We do what we do because it's the most successful way we know how to act upon our individual environments, whatever they may be. We are physically configured as we are because, on the average, how we are built has become the most efficient design to date to act upon the types of environments in which we live.
The evolution of a species can only occur over extended periods of time and is driven by reproduction; each new birth is an opportunity to improve upon the design. There is trial and error involved. Not every design change works out, hence fatal genetic disorders and traits that make one more vulnerable to unsafe or unhealthy environmental factors that increase the chances of death. It's a process.
The evolution of an individual follows a predictable path but at a pace in each area of development unique to that individual. It, too, is a process. Certain ways of thinking have to be mastered before a person can master more complex types of thinking. What we learn and master is connected to what we already knew and had mastered at the time.
Knowledge is cumulative and we make sense of new information by associating it with the things we already know. We become more skilled at assimilating new information in with what we already know as we age, if we develop in a healthy way. Not everybody develops in a healthy way, however.
Regardless of whether someone is doing harm out of incompetence or malice, it doesn't change that harm is being done. Nonetheless, the people engaging in harmful behavior are doing their best to function successfully in the environments in which they are doing harm. They're doing what they think they have to do, and that's a hard pill to swallow, sometimes. This is where their thought processes took them and, in their minds, it was the right course of action for them to take at the time. Sometimes, with the benefit of hindsight, they will see the error of their ways, but in the moment, what they had to do seemed very clear to them.
It's hard to be empathetic of someone abusing their authority under the color of public office to intimidate a parent, for example, because they are panicking over mistakes they've made and for which they could be held accountable and they are trying to protect their own interests without regard to how their behaviors impact other people. These are individuals who lack perspective-taking abilities and are socially/emotionally underdeveloped.
Very often, their cognition may be a little higher than their social/emotional functioning, but often not by much. It's been my experience that there are a lot of people who have learned how to socially engineer situations up to a point, but when it comes right down to it, they have weak abstract reasoning skills and are knee-jerk emotional decision-makers. Deductive reasoning escapes them, but they understand what forms need to be filled out for anything you might need and what their respective timelines are.
It's important to understand that cognitive development can only speak to so much of a person's overall development. It's one piece of a very complex puzzle and it's critical to other areas of development, but not the single most important consideration. All of it together is the most important consideration; each area of development is worthy of its own detailed exploration when you're trying to get to the bottom of what is going on with a student with special needs, and it's no different when we examine the behaviors of the adults involved in the IEP process.
Cognition, communication, social/emotional functioning, sensorimotor development, and physical development are all areas that have to be considered when looking at an individual's overall development. Nobody is evenly developed across each domain. Each domain has subcategories of developmental areas that make it up, which each develop at their own respective rates.
The unspeakable millions of developmental factors, which could each be measured if we devoted enough time to measuring them, emerge at their own respective paces, creating a unique portrait of each person. If graphed, no two profiles would be identical.
It is entirely possible for someone to have intact cognition and communication skills, but have social/emotional development that is way below the norm. That accounts for most of the men I dated when I was younger and a fair number of my redneck relatives. It also accounts for a fair number of the individuals responsible for denying a FAPE to my students over the years.
I've come to realize over the years that far too many people entrusted with great responsibilities lack the cognitive hardware to conceptualize those responsibilities and, as a result, fail to properly attend to them. When it comes out that they did something wrong, they play victim and/or try to cover it up. When what logically should have happened is pointed out relative to what they actually did, they become angry and defensive rather than remorseful and conciliatory. This causes them to do foolish, awful things to other people, who are more collateral damage in the pursuit of a self-serving purpose than the intended targets, but harm is harm.
The individuals in public education who have been undermining the Act since it passed in 1975 concocted elaborate strategies to undermine its legal protections afforded to students with disabilities and their parents. In the Rowley years, these strategies were playbook consistent from one school district to another. And one day during the Rowley era, at some gathering of what today would be considered Alt-Right individuals employed in public education administration and their attorneys, the "Inverted Pyramid of Retaliation" was born.
I've included a graphic of the Inverted Pyramid of Retaliation in the text-only portion of this post, which I borrowed from Wrightslaw and its article: "Retaliation: A Primer." I won't belabor everything that Wrightslaw has shared on this subject. You can read its article for more information. It was actually originally published by a chapter of the Learning Disabilities Association (LDA) in Sacramento after it was leaked from the aforementioned Rowley era professional development conference of school administrators and their lawyers to this parent and child advocacy group.
The outrage on the part of the involved public school administrators and their attorneys on having their conference "infiltrated" (the pyramid strategy could have just as easily been disclosed by a horrified a whistleblower from the inside) was intended to drown out the outrage of parents and taxpayers who were disgusted by this behavior. It was a black eye on the public education system when it came out that public servants and their taxpayer-funded attorneys were organizing like this against their constituents.
But, it only got traction among parents of students with special needs and their advocates and attorneys, at the time. It was still a time when disability rights was considered a special interest issue instead of a basic human rights issue. All of this political drama was relatively fresh when I first started as a lay advocate in 1991.
So, now, here I am in 2020 and I am still dealing with this. Last month, a new family came to us looking for help. Their child had been assessed for special education eligibility, but their school district determined that he did not qualify. It didn't sound right to the parents, so they went looking for help and found us. In early February, shortly after disagreeing with the school district at an IEP meeting in late January, their school district suspended their son, who had never gotten into trouble before, after another child aggressed against him and he responded defensively; the other student who initiated the incident was not suspended.
We were hired and I gave notice of representation of February 11. I reviewed the initial evaluation report, which was a tragedy of errors, and requested IEEs on February 12. On the pretense of sharing a possible homework solution with the mom, the male school psychologist who had produced said tragedy of errors scheduled a meeting with the mom on February 18. When she arrived at the school, the male principal of the school greeted her at the door and escorted her to the school psychologist's office where he and the male RSP teacher were waiting for her. The female special education program coordinator assigned to that campus was nowhere to be seen.
Once they had the mom alone in the room with them, the school psychologist proceeded to describe his "sure fire" homework solution, which turned out to be a behavioral strategy for kids who refused to do homework as a matter of poor parent/child relations, not anything to address the fact that her 5th grader can't read with comprehension and doesn't understand the reading material being assigned to him as homework.
The school psychologist already knew this was the concern about homework from conducting the evaluation and participating as an IEP team member. He already knew his "sure fire" method for getting homework done wasn't applicable to this family's situation.
It was a trap. The school psychologist tricked the mother into coming into his office, whereupon she was alone with three men suddenly pressuring her into signing the IEP document to which she had already signed her disagreement.
Take this in for a minute: three men who are public servants acting under the color of public office, lured a woman into a situation in which she was alone with them in a room wherein they attempted to coerce her into acquiescing on a matter of consent. That's pretty rapey. It's entirely inappropriate. I nearly ruptured a blood vessel when she told me what had happened, afterwards.
There is no way, as a behavior analyst, I can follow the events as she described them and not just crawl in my skin. Any woman who has ever had the misfortune of being sexually assaulted and/or harassed knows the feeling all to well when that unspoken threat of male dominance is being made.
I've already filed a Uniform Complaint with the District. I am beyond outraged. Just as the world starts to finally become more feminist, a bunch of knuckle-dragging throwbacks pop up and do something as outrageous and idiotic as this. I haven't even met this family face-to-face, yet, and a whole "Jerry Springer shit show" is already going down.
I have it on good authority that there may very well be a female contingent within this same school district that is sick and tired of the good ol' boy politics in this district's outdated male-dominated cowboy culture that will be quietly cheering us on and greasing the wheels in our favor from within if we push the issue. They may have felt powerless to do anything, but I'm not them. I don't answer to the school district. If they think I can do something as an outsider bringing on the accountability, it's my understanding that they are unlikely to stand in my way.
I can exclaim the Emperor is wearing no clothes. And, just to be sure people know I'm not making it up, I can describe his Imperial junk in detail so they know I am seeing the same exact things that they are seeing. On the record. To which I can later testify as a fact and expert witness if any of it ever goes to trial.
The school district has screwed itself so badly, so this is just a process playing out for me. It's not that difficult of a fight. These bozos are their own worst enemies.
I don't know how the dad hasn't come out of his skin and throttled the sorry lot of them. I have to give him credit for holding it together and taking the higher road. I just have visions of how my dad would react if he found out three guys had ganged up on my mom like that and it always boils down to me and my sister having to come up with bail money or take a trip to the emergency room.
It's not like my dad is uncouth. He's a retired engineering professional. But, it that was my mom, my dad would likely either transform into a gladiator and take heads, or stroke out from the effort of restraining himself and walking the higher road.
It takes an enormous strength of character for any couple to stand firm in the face of that kind of inappropriate threatening behavior. I'm nothing but impressed with how this family is handling this situation. Talking about getting to know each other right away. We've still not met in person and yet we've handled something of this magnitude, so far, as a team, with dignity and professionalism.
IEEs are now agreed-to and pending. The school district now has just under 60 days to investigate the Uniform Complaint that we filed. We've asked the district to revisit the gender sensitivity training, if any, provided to its staffs. I've made the record as an expert and advocate for the family as to the overarching big problems with its initial evaluation of their child and indicated my willingness to testify as a fact and expert witness to all of its shortcomings, if the matter were to go to hearing. That was articulated in the request for IEEs at public expense that I submitted and which were subsequently granted.
The LEP conducting the psychoeducational IEE is a former school psychologist of this same district. She left because of the cowboy culture, worked for five more years for the local county office of education, before getting her license and going into private practice conducting IEEs. She's amazing. I cannot wait to see what she has to say about this case, once she sees that initial psychoeducational evaluation. I already know in advance she will be just as appalled as I was when I first saw it. I also know she will throw down for this kid and figure out what is really going on. She rocks. I also got a great SLP to do the speech/language IEE.
Now, it's just a matter of getting the IEEs done and reconvening the IEP team to review their results, revisit the question of eligibility, and create an appropriate IEP for the student, presuming he qualifies. Once we have valid data, if it indicates that he's eligible, we can use it to develop an appropriate individualized program of instruction for him. After that, the question becomes whether the district should have figured this out on its own a long time ago and, if so, if the parents want to pursue compensatory remedy via due process.
Given the egregiousness of what has already gone on and been documented thus far, while it's never impossible that a case like this will go to trial, it is very highly unlikely to go to trial because of the misconduct it would expose to a trier of fact. Certainly with respect to meaningful parent participation in the IEP process, there is an enormous FAPE claim arising from the February 18 informal meeting outside of the IEP process; without the mom's representation aware of the meeting or present, three men from the school district attempted to pressure her into signing a legally significant IEP document to which her disagreement had already previously been documented and confirmed by her signature.
There is no way that can be construed as meaningful parent participation in the IEP process. It was meant to circumvent the IEP process and deny meaningful parent participation. The total ewwey creep factor aside, it was procedurally noncompliant, and a procedural violation of the parent's right to meaningful participation in the IEP process is an automatic denial of FAPE, regardless of the appropriateness of the IEP produced without the parent's meaningful participation.
That's a critical thing to understand in a situation like this. It potentially creates more than one type of legal claim, and whether or not the IEP is any good isn't part of the legal analysis when it comes to the denial of FAPE arising from a denial of meaningful parent participation in the IEP process.
The point in the "meaningful parent participation" claim arising here is that the parent was prevented from participating meaningfully in the IEP's construction such that the IEP document asserts things she and her husband do not believe to be true, accurate, or appropriate. Further, she had her rights regarding informed consent to the IEP document infringed upon by the school district, by way of its idiot goon squad that tried to pressure her into signing the IEP outside of the IEP process after luring her to the school to talk about a homework solution they already knew in advance to be inapplicable to her child's situation.
Regardless of whether this student turns out to be eligible for special education or not, because the initial evaluation process is part of the IEP process, the parents have a protected right to meaningful participation in the IEP process for so long as the IEP process continues to be open and ongoing. They did not consent to the initial IEP that stated their son was not eligible for special education. They disagreed with that assertion and withheld their consent to it, as is their right.
Until that dispute gets resolved, which involves IEEs at this point, the IEP process is still open and ongoing, they continue to have a protected right to meaningful parent participation in the IEP process. The school district has no excuse for the stunt it pulled with having three of its male personnel lure the mom into a room alone under false pretenses and then use it as an opportunity to pressure her to sign a legally significant IEP document outside of the IEP process. As you can probably tell, my blood still starts to boil whenever I think about it. It's hard for me to not perseverate on it, these days, honestly.
I'd like to think that these kinds of things are rare, but I'm in Southern California, supposedly one of the most progressive places on Earth, and, yet, here we are dealing with this kind of barbaric behavior from public servants against their own constituents, targeting children with disabilities and their mothers. Gross! Just so gross! I can only imagine what must be going on in the Midwest, inner cities, and rural Deep South. If it's this bad here, and it's always worse in those places, the probabilities churn my stomach.
These strategies used by old-timers in public education to undermine parent advocacy efforts are not extinct, yet. But, we can't allow them to continue to be reinforced or they will continue. The school district cannot achieve its intended ends of intimidating parents and getting them to acquiesce on matters of consent to legally significant documents that affect their children's development and future, or it will succeed at undermining the intent of the Act and harming children systematically without consequence. It's already happening here, obviously, or this family wouldn't have become caught up in it.
Your support of our Patron podcast channel helps us spread the word and educate others on how to handle these difficult kinds of situations. If you want to share your love for families like the one I'm helping in the case I've described in today's podcast, please accept our appreciation for becoming a patron and please also share this Patron podcast channel with other advocates, whether parents, volunteers, or professionals, who you think would benefit from the information we share in Advocate's Insider.
Thank you for supporting our patron-only content and helping us benefit individuals with disabilities and their families throughout the United States. Please subscribe as a patron supporter to get automatic access to all the episodes of Advocate's Insider. If you have any questions about special education and disability resource advocacy, please email us at info@kps4parents.org or post a comment to this podcast.
All content is copyrighted by KPS4Parents, which reserves all rights.
Sunday Feb 16, 2020
Advocate's Insider: Straddling the Line Between Science and Law
Sunday Feb 16, 2020
Sunday Feb 16, 2020
Introduction
Welcome to Advocate's Insider, an online publication of KPS4Parents. KPS4Parents is a non-profit special education and disability resource organization. My name is Anne Zachry, and I'm our organization's CEO, as well as the host of this patron podcast. I have been a special education and disability resource lay advocate since 1991, a paralegal to attorneys representing individuals with disabilities since 2005, and an educational psychologist and behavior analyst since 2013.
Advocate's Insider is a patron-only program intended to assist special education and disability resource advocates around the United States develop their advocacy skills and increase their chances of achieving appropriate outcomes for the individuals with disabilities whose rights they work to protect. The content published on Advocate's Insider is based on my own experiences and those of my colleagues regarding special education and disability resource advocacy in the public sector.
None of the content on Advocate's Insider should be considered as formal legal advice. If you require formal legal advice, please seek the counsel of a qualified attorney.
If you are a parent, educator, or activist looking to improve your knowledge and approaches to advocating for individuals with disabilities from a technical standpoint, then Advocate's Insider is an appropriate resource for you. Professional and volunteer advocates alike can always stand to improve their skills, and we seek to add to the body of resources available in this unique, specialized field.
Patron proceeds generated by Advocate's Insider are used to support our public education efforts via social media. Your patronage is genuinely appreciated and is used to help individuals with disabilities and their families throughout the United States through education and technical assistance.
If you are listening to this podcast, please be aware that there is a text-only transcript on the PodBean post for this podcast that includes hyperlinks to online resources that can serve as additional useful information and to illustrate the points I'm making. Whenever such a resource comes up in the course of the podcast, you'll hear a sound like a bell that cues you to where in the transcript you can find each link.
Today is February 16, 2020
This is Volume 1, Episode 1
The title of today's episode is, "Straddling the Line Between Science and Law."
You would think after as many years as I've been working in special education and disability resource advocacy, people would run out of things that can shock me. You'd think I've seen it all by now, but every school year, somebody in a school district or charter school somewhere does something that just makes my jaw drop before it ultimately makes me hang my head in sorrow and disgust. If you are working in special education and disability resource advocacy, whether professionally or not, the work is the work, and you are likely seeing things that defy belief, as well.
If there is even the slightest silver lining to the current state of the American Presidency, it's that now people don't think I'm making things up when I tell them the things I see coming from publicly funded schools, regional centers, and other agencies when I attempt to achieve appropriate services for people challenged by disabilities. There was a time when only other people who worked in special education and disability rights were experienced enough with these things to believe the people with incredible tales of woe involving various agencies coming to us.
In 2012, I had a student on my caseload whose unresolved issues had gotten to the point that due process was the only way to see them resolved. That never makes me happy, but I'm prepared to go there if I have to. That's why I became a paralegal.
The special education attorney in my student's local area was buried alive in casework. My student wasn't the only one in this Central California county that was getting shafted by his school district, and there were viable due process cases all over the place. The special education attorney recruited his best friend, a criminal defense attorney who was accustomed to addressing issues of disability and behavior when they got really out of control, to take lead on the case with my special education attorney colleague remaining of counsel. I provided paralegal support to my criminal defense colleague, with the hard questions of fact and law being run up the ladder to our colleague acting as of counsel.
Among the three of us, I thought we put on a heck of a case. The problem was that it was pre-Endrew and the judge misinterpreted the meaning of Rowley. The judge determined that because our 19-year-old adult post-secondary student had experienced educational benefits in the area of behavior, the fact that he had been reading at the second grade level since second grade didn't matter because he had received "some educational benefits" that were not "de minimus," which is to say, not trivial. His benefits in behavior were not trivial, that's true. But he received no educational benefits in reading, which was the claim we asserted. The case settled upon appeal, but it was an uphill battle to reach a resolution. My criminal defense colleague decided to never do a special education case again, citing the greater dignity and decorum of the criminal courts.
Our student went on to fulfill a lifelong goal of being in a university marching band, blended in as typical, and developed a self-confidence that nothing else could have possibly given him, propelling his emotional growth and development. These fights are worth it, but they do take their toll on us.
It's been reported that mothers of adult children with autism often have cortisol levels on par with combat veterans returning from active duty. I think those of us who professionally advocate for individuals with disabilities on a regular basis experience something similar.
We may be able to go home at night and not worry about a midnight meltdown that lasts for hours disrupting our sleep, but we've also got multiple cases going at once in which everybody is suffering and no one situation is more worthy of our attention than the others. They're all horrible and they all need immediate help. Juggling that kind of a caseload will keep you up all night with worry, even if there isn't a meltdown going on in the next room over.
There is a saying that I abide by. It's one of several. It came from a book called The Soul: An Owner's Manual. The saying goes something to the effect that, "Making decisions based on emotions is like trying to build a house out of smoke; making decisions based on facts is like building a house out of bricks." The point was to provide a concrete metaphor for an abstract concept.
The author was a psychologist in Ojai, California who also went by the title of "guru," so I took his book to mean he was teaching critical thinking skills to the "woo-woo" people up in Ojai. The way he framed it was actually quite brilliant, which is why it resonated with me so strongly. He was totally right and using that metaphor truly put it into proper context.
Emotions are ethereal and ever-changing; they can't support weight, block the elements, or remain in one place. Bricks are solid, can withstand the tests of time, and stay where they are put. Which one truly makes the better building material? And, why would any responsible adult ever knee-jerk their way through life according to their fluctuating emotions rather than methodical, practical, fact-based decision-making?
It's truly difficult to apply that knowledge to real life. I don't think any of us ever fully succeed, but it's the goal. Aim for perfection and be satisfied with excellence. Don't beat yourself up for getting it wrong; just work that much harder to do it right the next time. The point is to be strategic rather than hysterical.
This issue is one of locus of control. Locus of control goes to the degree to which a person believes they have control over their own lives or think that life is something that just happens to them. Someone with a strong internal locus of control takes ownership of their actions and is capable of goal-driven behaviors. Someone with a primarily external locus of control never sees the connection between their own behaviors and the consequences they experience. It's their perception that everything happens to them, not because of them.
Learned helplessness and victim mentalities arise from having a primarily external locus of control. Fear-based thinking is driven by a primarily external locus of control. Impairments that limit a person's ability to predict what should logically happen next promote thinking governed by an external locus of control. Unpredictable caregiver behaviors undermine childhood development such that children are prevented from developing an internal locus of control.
This translates to so many aspects of the work I do, I don't even know where to begin. One place that's as good to start as any is in the development of Positive Behavior Support Plans (PBIPs). So many of the badly written PBIPs I encounter are heavily weighted on reactive strategies and light on preventative strategies.
This is because so many people in public education still look at student behavior through the lens of the outdated disciplinary models of behavior management that were implemented when the public education system was created during the Industrial Revolution. We still have people in public education just waiting for their opportunity to punish the kids they don't like, most of whom are disabled, because they can't perceive it as anything but willful misconduct and defiance of their authority.
Because these types of school personnel don't understand established scientific concepts, like locus of control, they assume the students involved in every disciplinary action being willfully defiant and understand the consequences of their actions. It doesn't occur to such staffs that their students may be reacting to some external trigger and/or compromised by disability. These staffs can't conceptualize an abstract emotional concept like this because they are functioning at such a reduced social/emotional level, themselves, and such thinking is beyond their ability to understand.
You have to understand that, when you encounter someone like this, this is a person who has likely achieved developmental norms in cognition and communication, but not social/emotional development. They can't mentally conceptualize Positive Behavioral Interventions and Supports (PBIS) as a framework because it requires them to step outside of their own egocentric mindsets and see things from someone else's perspective, which they can't do.
Because they have otherwise normal cognition and communication skills, it's easy to assume they must be able to conceptualize these kinds of abstract relationships. It's true that one has to have the cognitive ability to think abstractly at all in order to achieve commensurate social/emotional development, but if one's social/emotional development is impaired, those cognitive abilities are not going to overcome the social/emotional deficit.
That kind of thinking requires fully functional Formal Operations from a Piagetian standpoint, and the social/emotional development of people with these kinds of challenges never get that far. If you encounter someone like this, you may be dealing with someone with an underdeveloped or damaged prefrontal cortex of the brain and/or some kind of personality disorder.
These will be the strongest resisters to PBIS in the public school setting. Because they are egocentric in thought with respect to social/emotional functioning, they take all inappropriate student behaviors as a personal affront to their authority, because they assume everything always has to do with them. These are the adults who end up in positions titled things like, "Dean of Discipline." The title of "Dean of Douchebaggery" would be equally applicable, in most cases.
I once had a high school student on my caseload who was impacted by ADHD and emotional problems. It made him a follower. The other kids would set him up to do something inappropriate while they watched him get in trouble, purely for their own entertainment. He was so desperate to be accepted by his peers because of his emotional problems, and so poor at predicting the consequences of his own behavior because of his ADHD, by time I got involved, his high school was trying to expel him for getting busted by the campus's Resource Officer, a cop, for having cigarettes in his pocket six blocks away from campus.
The school site administration was acting like he was incorrigible and that was just the final straw. They weren't even his cigarettes. He was holding for the kid who was giving him a ride to school. None of his prior "offenses" were for anything violent or destructive.
Getting a citation for being a minor in possession of tobacco was on par with the kinds of things that kept tripping him up. He wasn't supposed to do it and it was dumb, but it wasn't like he was beating up kids for their lunch money. He was a sweet young man who just wanted to be accepted and couldn't judge when he was being played or when a suggestion that he do something was a bad one.
I remember sitting in an IEP meeting with his mom, the special education director from the District's head office, the District program coordinator assigned to his campus, and a table full of scowling mean old ladies from the school site. I articulated the parent's concerns that they were failing to appreciate the degree to which our student's disability was a factor in his behavioral challenges and the fact that the history they had with him was the result of other kids setting him up as an act of bullying. The parent was further concerned that the school site staffs were not using scientifically valid, evidence-based behavioral interventions and, in doing so, were failing to abide by his IEP.
The special education director then explained the District's obligations and dedication to using PBIS in the development and implementation of IEPs for students with behavioral needs. That obviously wasn't happening and she was explaining to the school site staffs that they had no choice. But, then the highest-ranking mean old lady from the school site asked, "But, when do we get to punish him?"
The look of outrage and horror that spread across the special education director's face - the moment she realized that I hadn't been making it up when I had complained to her about this situation and asked her to come to the IEP meeting - was one of those things you just don't forget. When someone who has historically fought you on things suddenly realizes they're on the wrong side of the issue and jumps fence right before your eyes to come to your side of the issue, it gets burned in your memory. The shock on the program coordinator's face was equally impressive.
Clearly, the mean old ladies weren't listening to us and were so wrapped up in their own emotionality that the fact-based logic of what we presented fell on deaf ears. Further, because they were too inexpert to recognize the impact of this kid's disabilities on his social/emotional functioning, they took everything he did to be an affront to their authority rather than evidence of a mental disability worthy of their compassion. They had no compassion. People that egocentric don't. They were incapable of empathy.
After the meeting, the special education director and program coordinator and I discussed the situation further in the high school parking lot. They couldn't apologize enough, and that wasn't usual for them, in my experience. Normally, the three of us had a tense understanding of each other that involved haggling over disagreements, but this was a horse of another color. We bonded in our mutual outrage and it ended up improving our working relationship for the remainder of the time the special education director was still with that district.
The school site staff didn't just disrespect me, they had disrespected the special education director and her office. All the school site staff could see was the District's special education director agreeing with me, the outside agitator, and another instance of some muckety-muck from the District offices coming over to their campus and telling them what to do.
What ultimately became apparent later was that the school site's administration had come to view that campus as their own personal fiefdom and resented "those people from the District" coming over and calling them on the carpet for doing something messed up. This kind of dynamic is evidently not that uncommon in school districts. It can become part of an unhealthy culture that develops within a school district over time and leads to intra-agency turf wars.
What started out with a battle by the family to get appropriate behavioral interventions at school turned into a battle between the District offices and the high school campus administration over who was right and what the school site was required to do. The school site cadre of mean old ladies were mad that the District offices wouldn't cronyistically collude with them to adhere to outdated approaches proven not to work and cover for them, and the District was trying to convince the mean old ladies at the school site to implement PBIS so the District wouldn't get sued.
The school site personnel lost sight of the fact that the campus was just one of many that was part of the District, and if the campus team broke the law, the whole District was in trouble. The District offices had a legal obligation to enforce the regulations at the school site.
The special education department from the District and I were both approaching the matter from the standpoint of fact and law, but the staffs at the high school were coming at it from the standpoint of indignation, offense, and vengeance. I and the special education department were trying to build a house with bricks in a place that only supplied smoke.
34 CFR Sec. 300.320(a)(4) requires the application of the peer-reviewed research to the design and implementation of special education on a per-pupil basis, to the degree that it's practicable to do so. I've gotten to where my strategy of choice to force the issue is to write a request letter on behalf of the client asking for interventions according to specific articles that I will cite, if not attach, and conclude by requesting that, should the school district decline the request, that it please be sure to include in its explanation in its PWN as to why the requested intervention/method is not practicable.
I've never gotten a PWN that explained why what we had requested was not practicable. Nobody knows what that means. I wrote a paper on it in grad school as part of my culminating comprehensive exams. There is no professional standard for what is or is not "practicable," nor is there any regulation or case law that further clarifies its meaning. Perry Zirkle has published on the topic, reaching the same conclusion. I actually cited his research in my grad school paper.
While many school districts have taken "not practicable" to mean, "whatever we don't want to do," I find it powerful to put them on the spot and explain why something isn't practicable, which they evidently can't do. By framing it within the context of a specific request for a specific student according to the peer-reviewed research, which is included to substantiate the request, then asking for an PWN that explains how the application of that science isn't practicable if they decline to honor the request, I find it far more often the case that the request is simply honored.
If I can frame a procedurally compliant request in a scientifically valid manner, there is no credible argument against it. I don't ask for anything that couldn't realistically be done in the first place. It might not be something that has been done before, but it's not impossible to do it. Sometimes, people just balk because you're asking them to change how they do things, not because what you're asking for doesn't make sense.
When you make the folks at the school district stop and think about why they really object, and they realize they can't put that into a PWN without looking like jerks, then they really look at what you're asking for, realize you're spoon-feeding them the solution, and they have no good reason to say, "No." They usually come around after that.
If you can bring yourself to ignore minor inappropriate behaviors on the part of school district personnel when their feathers get ruffled and reinforce them with verbal thanks and praise when they finally do the right thing, you can get your student served with the right services sooner than if you have to fight. This approach is non-emotional and fact-based. I stick to the evidence-based science and the legal framework for the special education process. It's facts and law. Building with bricks, not smoke.
A non-emotional request is more likely to produce a non-emotional response, though not necessarily. Sometimes, pointing to the facts that justify a request also results in putting damning information on the record that makes somebody at the publicly funded agency look bad. Sometimes that person is the one to whom you must submit your request. Sometimes requests built with bricks are met with response of nothing but smoke.
In cases like that, due process may become unavoidable, but at least you will have made the record in a sensible way that will lend itself to supporting your testimony in hearing. I had that happen recently, and it was quite unexpected.
From 2013 to 2017, I assisted a family of a little boy with autism who was non-verbal. He likely has some form of childhood apraxia in addition to his autism. When I first got involved, he was learning more from his in-home ABA program than he was at school. Turns out, his teacher just assumed that his cognition was commensurate with his expressive language and treated him like he was incapable of learning. He was receiving glorified day care, not special education.
The next three years were about new assessments and the development of a data-driven IEP. By the time this student and his family moved to another state in the summer of 2017, he'd had one full year under his belt of an appropriately designed and implemented IEP to inform the development of the IEP that followed him out of state. The 2016-17 IEP was the first real data-driven IEP he had that targeted all of his unique areas of special education and related service need. By the time we reconvened in June 2017 to review it and craft the next annual IEP, we had a rich body of valid data to inform the new IEP's development.
In December 2019, I got a phone call from his mom. They were going to due process against their local school district, which was claiming that the IEP that had followed him from California in 2017 was too aggressive and its present levels described our student as being more capable than he actually was. Not that anyone from the out-of-state school district had attended the June 2017 annual IEP meeting during which that IEP had been created and was in any position to contest its validity, or anything.
I gave the student's attorney access to the audio recording of that IEP meeting and all of the supporting documents. I testified as a percipient and expert witness, certified specifically as an expert in IEP design, as to how the June 2017 IEP came about. The documentation pretty much spoke for itself, but it helped to have me speak to its veracity.
There was no way to say that the present levels of performance in that IEP were made up to appease parents in denial about how impaired their child was, which is what the out-of-state district was basically arguing. There were hard numbers to back up every bit of it. By the time the family moved away, they had a rock solid IEP based on real facts, not opinions. I had advocated relentlessly for three years to get us to that point.
I'd say more about the case, but it's still being tried. All I can speak to is what I already know from the past. The point I want to make is that, if I had not successfully advocated for a technically tight and substantively appropriate IEP based on that child's individual needs, he wouldn't have an example of what has already proven to work for him on record in his due process case, right now.
None of us ever hope that one of our cases will go to hearing, but we do hope that our work product helps the student when it shows up in evidence and that our testimony doesn't undermine the student's chances of getting what they need. I felt very fortunate that this student moved after we had finally gotten his IEP on track and he had something worth implementing to take with him. His last IEP from California will make it a lot easier for the judge to figure out what the school district owes him, presuming he wins.
The marriage of science and law that special education is supposed to be can be traced back to litigation in the early 1970s, with two cases: PARC v. Pennsylvania and Mills v. Board of Education. The outcomes achieved by these two important pieces of litigation ultimately resulted in the requirements in the implementing regulations of the IDEA for measurable annual IEP goals, the application of the peer-reviewed research to the degree practicable to the design and implementation of IEPs, using standardized measures according to their instructions from the producers of the tests, using only properly qualified assessors, and a host of other requirements that are necessary in order for the IEP produced to be technically sound according to evidence-based practices.
The science is written into the law. The problem is that most attorneys are not also education researchers or educational psychologists, and most education researchers and educational psychologists do not also work in special education law. There are few people like me who are trained in both professions who can bridge that gap, and it's up to us to help experts and attorneys understand their respective roles in this nexus where science and law collide. That's what I hope I've done in this episode and will do in the future episodes to come.
Thank you for supporting our patron-only content and helping us benefit individuals with disabilities and their families throughout the United States. Please subscribe as a patron supporter to get automatic access to all the episodes of Advocate's Insider. If you have any questions about special education and disability resource advocacy, please email us at info@kps4parents.org or post a comment to this podcast.
All content is copyrighted by KPS4Parents, which reserves all rights.