Episodes
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.
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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.
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