Sign an IEP, sign away your constitutional rights

[Mark Nylander]

I could not believe what I read on the Sunday KNS:

A 14-year old girl was allegedly sexually assaulted in a special education transportation bus, and Knox County School Board lawyers want the subsequent suit against KCS dismissed on account that parents did not follow IDEA grievance procedure before filing the lawsuit. Let's ponder this for a moment: If a regular education student was injured or died on while in school due to the school system's negligence, would the school system insist that the student's parent go through a mandatory arbitration process with the school system first?

I don't think so.

I'm not a lawyer, and the KCS article did not include the memorandum that clarifies KCS position. However, it seems that KCS is taking the IDEA Procedural Safeguards and turning them upside down: Instead of shielding the parents from abuse by the school system, KCS reads that the IDEA safeguards pre-empt any legal rights a special education student might have under the common law.

Under the legal theory KCS is apparently advancing, by signing an IEP the parents of a disabled student are implicitly giving away their constitutional rights for equal protection under law. In other words, in order to gain Fair Adequate Public Education (FAPE) for their child, the parent must sign an IEP, and by signing the IEP, KCS asserts that the parents are relinquishing their right to sue the School System for gross negligence unless they undergo mandatory arbitration through an IDEA 2004 grievance process. If that doesn't fly against the face of the 14th Amendment, I don't know what does.

Seriously though, I'd be astonished if Knox County Deputy Law Directors Susan Crabtree and Martha McCampbell were this ignorant of IDEA 2004. Maybe they're hoping that the presiding judge is. However, if the judge doesn't nip this in the bud, this is going to be a whole can of Constitutional and Civil Rights worms opened by the KCS response.

[Cathy McCaughan]

Did you mean to link to this article?

[Vic Spencer]

Some Board members may feel that they represent the school system, but they actually represent the various districts of this community -- THE PEOPLE'S INTERESTS. Under the umbrella of the Knox County education system, that SHOULD keep all children safe, YET something very bad happened. I don't have to tell you how bad it looks for every one of the Board members and KCS to defend themselves with a complex procedural argument, and leave ethics, and the pain caused to this raped girl on a school bus and her parents, by the road side, for a few pieces of silver. I know that this expression makes some angry perhaps, but I just hope that it makes them think.

Something very bad happened that should not have happened. Imagine this happening to your own child. For whatever reason, a lawyer picked it up and ran with it, suing KCS for $3 million. KCS could have settled the case for a lot less PERHAPS if they acted fast, but ignoring the ethics issue, the lawyer's advice prompted legal defense ON A TECHNICALITY of greater importance in KCS minds, than KCS ethical responsibility in my opinion. That made the "few pieces of silver" more important to Board members, and I feel totally ashamed for each of them who did not stand up for this 14 year old little girl who was raped on the school bus by a prior sexual offender, an 18 year old bully, and THEY along with KCS seek to be absolved of all responsibility because the parent did not use proper reporting procedure to KCS, first, according to a complex document that all special education parents have to sign - if I may remind KCS - without proper legal representation being present for the signing.

It is always the ethical issues vs a "few pieces of silver", that test us all during life to see if we have a back bone, a strong character, or not, TO DO THE RIGHT THING. Preaching about the ethical issues against one of your group is easy. But the Board failed as a group this time to stand up for a poor little 14 year old girl because of a technicality, for the few pieces of silver that KCS is paying them as Board members, and the few pieces of silver that it would take KCS to at least acknowledge its inescapable moral responsibility and settle this case with honor.Can any of this Board STAND UP TO DO THE RIGHT THING THIS TIME? That is the question.

I don't think they have a chance, but the appeal to dismiss simply shows bad ethics in my opinion.

When you go into surgery, you sign a release for the surgeon. But guess what? If the surgeon screws up, he will lose, regardless of that release.

In my opinion this was not only an immoral move, but a foolish move. I think that the Board should have stopped it, have a settlement negotiated ASAP and apologize profusely to the parents, without regard to whether or not that implied guilt.

Sometimes, we have to do THE RIGHT THING.

[Mark Nylander]

Vic, I agree with you on the immoral and shameful conduct of the school system.

I've got several copies of the KCS IDEA Procedural Safeguards documentation. Section 9 of the document titled "Civil Actions" states "before you file action under one of these federal laws you must have .... exhausted administrative remedies". However, this is deliberately taken out of context. When read in context of the previous paragraphs in the document, it is abundantly clear that the "exhaustion of administrative remedies" clause applies explicitly to the child's special education placement and services under IDEA. Unless being raped in a school bus was part of the victim's IEP curriculum, the Procedural Safeguards grievance process has nothing to do with this case except for the fact that the victim was in the bus because of her IEP. The best I can tell, the lawsuit is not against implementation or execution of the victim's IEP but negligence on behalf of the school system.

Like I said, depending on which view the court takes, there can be major implications on determining the legal scope of IEPs. But then again, Greg Isaacs is pretty good at what he does, and I don't see this case going too far before a settlement.

[Vic Spencer]

Mark, I don't think KCS has a chance with this. They have already lost the moral high ground with pursuing this on a procedural bases, that will be very hard to defend at best, since you are dealing with ordinary people under pressure. Based on what has been happening the moral high ground is vital to their image saving, which is the Achilles heal of this organization, reflecting poor judgment. The poor judgment used in this case just boggles the mind. With upper management decision about going legal or not you always way your odds not only to winning your case, which I would guess at not very good, but also with a consideration of what is the right thing to do with respect to your customers, which is the student population and their parents. For their target audience this is deadly for KCS, and the upper management and Board decision to go this way I find incredibly poor in judgment.

I wish they sobered up. It is bad for the entire community that such poor judgments exist in the management body and Board of an almost 8,000 large organization which we are financing at $370 million with our tax dollars. First the Robert B case a Board member. Then another after having dropped the ball on Robert B and having paid most of his sexual harassment settlement. The reasons given do not really matter. Now this, And it is a doozie. Incredibly damaging for their image. I don't think these people understand. They need some seasoned corporate execs on the Board and in top management, who understand what service to the public involves. Folks don't be concerned, I would not run for that Board if they paid me ten times what they pay, because it is a "do not accomplish anything significant" Board, and have no clue how damaging a bad image can be. And on top of it they all believe that they are safe and the system will not change. Not a good assumption.

[Mark Nylander]

The case is already in the open. All court filings are of public record, unless one party convinces the judge to seal the case. If there's a settlement, it may be confidential, but all the paperwork up to that point will be available for anyone. My gut feeling is that the reason for KCS to try to get the case dismissed on procedural grounds is to be able to offer a lower settlement to the family. If I was KCS I definitely would not want this to end up in front of a jury.

[Vic Spencer]

Mark I passed my comments through my representative on the Board, Thomas Deakins who I find very good. They are restricted from saying anything about this case until its conclusion. This is the usual procedure in organizations, although taking this position can be very damaging to the organization's reputation, because they cannot defend their reputation.
It is possible that there were/are mitigating circumstances that make KCS not guilty in this case. I would love to get both sides of the story, but cannot. I don't know if KCS is guilty or not in THIS case, so despite my eagerness to jump on this case, I think that we must be fair and wait until the court decides. For THIS case, and I do think in general, that our courts are the best avenue to the truth.
Unfortunately the stain remains on KCS until such time that a decision is rendered favoring KCS. Not a settlement. They would retain the stain of guilt with a settlement. A settlement is merely an instrument to end a case by mutual agreement without a guilty or innocent verdict. So we will see how it will turn out. We must be fair, and seek the truth the best way we and the system know how. There really isn't room for anything else, like bias. Some may find this comment disappointing but we must be fair in each and every case. I am referring to this case only, and not how well KCS handles Sped incidents. I do not feel confident that they do that well, based on what I read here, and without KCS commenting on these comments. So I have become a bit biased by what I read here.

[Debi]

This is also not uncommon as to how KCS deals with children being sexually assaulted. There is in KCS a student right now who was allegedly sexually assaulted by the same student twice, KCS refused to do anything except accuse the parents of abuse.

[Debi]

This is not the first time KCS has used this tactic. There was a child Brooke Mallory who was restrained several years ago in which bruises were left on her arm that her mother alleges was by KCS. KCS argued that her suit against the system was an IEP issue. So let me get this straight. If KCS allegedly abuses a special ed student it's a special ed grievance procedure but a general ed student has civil rights to go to civil court? Does this seem appropriate to any of you?

Perhaps we should all revoke our signatures of all IEPs until this issue is settled?

[Vic Spencer]

Debi, unless such a child damages himself or herself causing bruising. Is that possible? That is the exception that I can think of but the accusing individual, the plaintiff, would have to prove it.

[Debi]

Vic, it is possible to cause bruising from self or from someone restraining. KCS uses Cornell Therapeutic Crisis intervention & supposedly a staffperson doing the restraining is to be aware of child's medical condition, child is to be medically monitored before, during, and after restraint. How can KCS do this when they have no medical staff?

I could go more into what happened with Brooke when she was 40lbs & was doing nothing harmful to self or others until staff provoked her multiple times and then punished her by using restraint, tried to assert authority by using restraint, by failing to notify parents after using restraint, etc. My point is that KCS continually asserts acts of alleged abuse on the disabled isn't abuse, that it's special education. I say that's bull----.

[Vic Spencer]

The challenge is, Debi, that one would need proof. Does KCS document the details when they use restraint in each and every case, and are such documents signed and dated by someone at KCS and copy sent to the parent?If not, does the law require such a procedure by KCS?Are there undocumented cases of restraint by KCS and how do you or any parent know that there are?YT there can be no effective law suit unless one can prove "damages". In other words, there has to be proof of something harmful that has taken place, and also proof of how damage such action resulted in. You need hard incontrovertible evidence and/or expert testimony that a judge can cross examine to his/her liking to make sure that all is truthful and in accordance with the law..

[Vic Spencer]

YT, I did not mean to make you mad at me. I have my hands full with the educational issues and other projects. I don't have first hand knowledge of the sped issues and the various different conditions that kids have under the Sped classification, nor about the laws. but they must be very painful for all of you.

I could do something for you all, but I need someone else do some work on who IS a Sped parent. Did a small group of you ever write up a story about the situation? I mean in less than 800 word sections, with one section on what Sped is and what conditions it covers. A second on what the law is in TN about the services they must be provided by the schools, then several case histories, with proof. If I had a story like that, I would understand it much better and I would run with it. As to whether or not I have balls to do something, I would let others decide that. I want you to understand very clearly that regardless of how much I would like to help, I cannot do it in a matter that I do not understand and do not have clear proof in my hands for. In education, its impact on society I understand somewhat. But even in that case I cited a good number of test results and created my own graphs based on published sources that would be very difficult to challenge if at all. I simply do not have such info on Sped. I WISH I HAD THE TIME TO LEARN ALL THAT I NEED AND INVESTIGATE ALL THAT IS OUT THERE, BUT I AM JUST ONE PERSON AND I WORK LONG HOURS AS IT IS. I want you to understand me and not be frustrated with me because I could not say yes.