I visited an attorney yesterday. I wanted to try to understand what Grace’s rights are. If I’ve read the state’s statutes correctly as well as IDEA, then her school district is in violation. I don’t understand how a school district can break the law–both state and federal–and not be held accountable in some way. I tend to be naive. It’s my nature. I will unfailingly believe that people are good. I will usually look for the best in others. I actively shun cynicism. My conclusion has been that Grace’s school district has been operating under extreme ignorance. I have pitied them because I thought them stupid. I have felt angry because they have violated the Law of the Land and deprived a fragile child her education because of what appears to be an almost willful maintenance of their own obliqueness.
I have been educated. The school district is no more stupid than I am short.
Let me acquaint you with Thompson vs. Board of Special School District No. 1, 144F.3d 574, 579 (8th circuit, 1998). The Thompson ruling, as it’s known, states that “if a student changes school districts and does not request a due process hearing, his or her right to challenge prior educational services is not preserved.” What does this mean because it sounds reasonable, right?
It means that School District A could deny little Billy an IEP evaluation which is a violation of a federal law (IDEA) which they would know. They would say that they want to observe Billy for a few weeks to see if he even qualifies for an IEP evaluation, but how can a child qualify to be observed to be observed for a disability? It makes no sense. Nonetheless, this is what School District A will tell little Billy’s parents. Little Billy’s parents will then say that he is a fragile child. He needs accommodations. He can’t complete his homework. He isn’t able to complete a full school day. He isn’t able to ride the bus. School District A will ignore all communications from Little Billy’s parents. Little Billy will deteriorate quickly. Little Billy will not be able to go to school. Little Billy will miss more than 15 days of school, and little Billy’s parents will inform the school that they are legally bound to provide him with education under IDEA as well as the state’s statutes. School District A will acknowledge nothing. Finally, School District A will propose a meeting to discuss an IEP evaluation, but little Billy’s health condition is not taken under advisement. The proposed IEP evaluations are not appropriate for little Billy, and the IEP evaluations need to be amended in order to proceed all the while little Billy is not in school. He is getting sicker and sicker almost by the second. Finally, little Billy’s doctor admits Billy into a hospital for treatment. As luck would have it, there is a school at the hospital, too, and little Billy is thrilled to be learning something during his time at the hospital.
When Billy’s parents ask the school about continuing the IEP evaluation, the school informs his parents that little Billy is no longer their problem since he was moved out of district.
And this is where the Thompson ruling comes in. Because little Billy was moved out of district for medical treatment, little Billy’s parents can no longer take action against School District A for their flagrant violation of federal and state laws. And, School District A knows that. What’s more, they knew it all along. They knew that little Billy was a fragile child who would eventually crack and need either 1) inpatient care or 2) partial hospitalization, which would absolve them of all illegal wrongdoing. This is exactly what is happening to Grace.
Now, you might be saying: States CANNOT violate federal laws! They CANNOT pass legislation or engage in jurisprudence that violates federal regulation. You’re right. They can’t. In the 8th circuit, however, they are doing that very thing with the Thompson ruling, and disabled children are being denied equal protection under the law. Not to mention that this is completely unconstitutional. It’s interesting to note that the 8th circuit is the only circuit in the nation that has confirmed this ruling. Every other circuit has rejected it by not confirming it through jurisprudence. In my state, however, judges have used this ruling to allow school districts to deny profoundly disabled children services. Not only that, they have allowed districts to repeatedly violate IDEA without accountability, thus, robbing IDEA of its purpose.
So, what now? Well, let’s go back to little Billy. What will happen to little Billy after he gets out of the hospital? What if little Billy even gets an IEP evaluation AND the much coveted IEP while he’s in the hospital? Well, little Billy will go back to his district carrying his shiny, new IEP, and School Distract A can say whatever they want to say. They could say, “Nope. We think we want to do our own evaluation. We disagree with that one. We don’t like it.” They could even just say, “Screw you! We won’t give you any services at all!” They could say, “We’ll give you partial services.” They can do whatever they want to do in the 8th circuit particularly if they have a fragile child because they know that if they stall, balk, and drag things out long enough, then that child will end up in some kind of facility out of the the district. Due to the Thompson ruling, they will then be untouchable. If School District A is really horrible, and a parent moves them to a private school for help WITHOUT seeking legal help in the form of a due process hearing before leaving, then School District A is in the clear for their lawlessness. One can lodge a complaint with the Department of Education. What will they do? Investigate? Find that School District A was, in fact, in violation of IDEA. Tell them not to do it again? What is going to motivate School District A to stop depriving disabled students like little Billy of services and a FAPE when there is no accountability?
In the midst of all these stall tactics, it’s little Billy who didn’t get an education. There is a school district in my state who behaved just like School District A for four years. A little girl did not receive her education for four years because of one school district’s arrogance combined with the Thompson ruling.
You might ask the question that I’m asking: Why? Why on earth would a school district behave like this? Money. According to IDEA, a child with a disability must be provided with a fair and appropriate education (FAPE) in the least restricted environment. If the least restricted environment for little Billy is a hospital setting, then who do you think has to pay for it? The insurance company, Billy’s parents, or School District A? School District A has to pay for Billy’s education. This is what it comes down to. If Billy’s parents, however, move him to the hospital on their own accord, then the parents pay for it. This is why School District A refused little Billy any sort of services or accommodations out of the gate. They knew that they were in violation of a federal law, but they also knew that they would be untouchable once Billy was out of district. And, they wouldn’t be out of a cent. Are you getting it?
They also wouldn’t be out of another special education for another “retarded child”. Who cares about retarded kids anyway?
I am not okay with this. I am really not okay with this. It will take a few years, but I fully intend to do something about this. A few of us are going to do something about this. I’m not just talking about my daughter. I’m talking about the 8th circuit and this ridiculous ruling that has allowed administrations to deceive taxpayers into thinking that money is being saved. No Child Left Behind?
Not if I have anything to say about it.