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.

[Vic Spencer]

YT/UP or whoever you are, I think I was very clear with you about what I need. If you have the kind of proof for which I have to come to your home to view it privately, you must think that I am a moron. I could not use such info because it is hearsay at best.

If you have facts, send them to me, and I will ask you some questions if I do not understand something. Can you do what I asked for since you are the expert in Sped and I am not?

I believe that 9.9% of KCS students are Sped. I have difficulty believing that KCS is out to be purposefully unlawful or nasty in handling Sped kids, until I see proof. End of story. Sorry. I have not met a single KCS person like that.

And please do not use my words misquoted or out of context. Look at your language to me. And you want me to help you? I will be happy to work with anyone who can present the Sped issues as I suggested, because I do not have expertise in that area, without any abusive language toward me.

Have a good day YT/UP. You can have the last word on this or anything else to me.

[Mark Nylander]

Vic,

I would just state for the record that my experiences dealing with KCS in the matters concerning special needs children have been overwhelmingly positive. I don't know if it's because I'm assertive (hah!) and educated about IDEA but (with the exception of transportation) I've always been dealt with fairly and by the book. There are some extraordinary spec ed programs in KAEC satellite classrooms with some exceptional spec ed teachers. YMMV, of course.

[Debi]

According to TCI they are not only supposed to document but provide that documentation to parents. There are lots of undocumented restraint cases that have happened. Sometimes the student tells parents, a lot of times other staff people tell parents, and sometimes the restrainer mentions it casually but without documentation of it.

Vic, you should see the pictures from Jeremiah Evans' restraint allegedly by Anderson County Schools at the Learn Center. If that case were not in federal court at the moment I would gladly post the pictures of bruising on his face, arms, forearms, back, chest, stomach, thighs, knees, and legs. Yet the police or DCS would not open a case calling it "related to restraint." Yet all the while Anderson County DA encouraged the mom to file civil suit. Why in the HELL would no one calling themselves a law enforcement official press charges? If a parent had done what these school people had allegedly done to that boy, the parent would be in jail for a long time.

It's not even about court cases and suits, it's about what's right and what's evil.

[Vic Spencer]

Debi, is there an active group of Sped parents who became aware say a day after the fact that their Sped child came home with bruises, took dated pictures, went to a doctor to get a formal diagnosis and got that report, went to school to find out what happened, found out about restraint use of which the parent was not notified, and questioned the school in writing why she was not notified according to the law? Then documented the case with the school's response, or if no response, did a second and 3rd try to get an answer. Do we have cases like that with evidence written up? Including copies of police reports if the police was called when a child came home from school with bruises. All put together with photos, diagnosis, the letters, the answers and an overall summary of the event? Preferably recent? I would like to have total packages like that covering a handful of cases that are Knox County cases and as recent as possible.

It would be useful if we had a separate list of URLs that describe other cases out of the county or within the county to see what actions other parents have taken and the outcome.

In addition, could you recommend a brief write up on what Sped covers: diseases, conditions, some of which are academically disabling but there are some that are not and even cover superior intelligence.

Finally I would like to get a brief write up on TN and Federal law reference with specific ref numbers so that anyone can go to it, covering what school district responsibilities are. I like to have or provide references via URL.


Even if you have one of these topics, but complete, I would welcome any info package from you or anyone who did not use any abusive language with me in the past. Is that fair? Since I am not well informed on Sped.

[Debi]

I would be happy to do some of that but probably cannot until June when my quarter in school is over.

[Mark Nylander]

Covington v. Knox Co is virtually identical to this rape case, thanks for finding it! The way I read it (and again, I'm not a lawyer) is that 6th Circuit Court decided that if "the condition creating the damage has ceased" and there is no equitable relief that would make the victim whole by administrative means, the administrative process does not need to be exhausted.

In this case, the condition that created the damage was a single event (sexual assault), there is nothing that KCS would administratively do to "undo" the assault, and the only issue to be tried would be the monetary damages. I would be really surprised if KCS attorneys would be unaware of Covington, so I've got no clue why they'd raise that defense to begin with. Interesting.

[Debi]

If you have a sped student who is being physically and verbally harassed by other students & the school does not provide safety, I have two questions. First, can parents or friends/family of student attend as a non-paid educational aid to ensure safety to student? Second, if mom has to quit nursing school to do this, can mom receive reimbursement for the student loans mom would have to pay back because of having to quit school to ensure child's safety was met?