Attwood’s legislative shopping list
I’ll add items as needed and delete them when we get
them.
None of this costs money, and it should save money by reducing injuries and disputes:
- Districts should be forbidden to spend more than a certain amount on litigation against parents in Special Ed disputes. I suggest the highest of:
1) no more than what the parent spends, or
2) the amount of monetary value at issue, or
3) some set value, say $30K.
This would put pressure on all to settle quickly and cheaply, prevent the district from consuming education money just to bully parents, and encourage all parties to do right in the first place.
- Failure or willful refusal to release records, destroying them without permission, or failing to keep them in the first place should subject any involved individuals to mandatory sanctions personally. Hidden records is not a mere procedural question. A lot of wrongdoing simply cannot happen if those contemplating it know that it will be documented and exposed. Keeping districts from hiding records will avoid much harm, just as keeping drunken drivers off the road reduces injuries and deaths, along with the expense of judicial proceedings and insurance claims. The whole world is like that: the carpet gets cleaned better just because I’m watching the guy work.
I’m not a lawyer and I’m sure this will need tweaking, but I suggest adding the following language to California EC 56504 as a separate subsection (b):
In the event that any records are withheld in violation of this section or of Federal law –
(1) In any administrative hearing or judicial action directly related to the missing records, it shall be found that the agency has stipulated the parent’s or student’s position. If the agency was required to create and keep the record, it shall be deemed to have done so.
(2) If it is shown to a preponderance of the evidence that the agency’s attorney has counseled the withholding of such records, he shall be deemed to have counseled his client to violate the law and shall be sanctioned in keeping with the Code of Professional Conduct.
(3) District officials and those that represent them in administrative proceedings or judicial actions who willfully withhold such records, destroy them without the parent’s informed consent, or falsely deny their existence shall be subject to civil liability of $500 for each violation, imposed by the hearing officer or the court as appropriate. However, there shall be no such liability if the official can show that the action was taken in good faith on the misleading advice of the agency’s attorney.
Certainly Congress could easily add language like this to FERPA and make it clear that it is enforceable under IDEA 2004 and Section 504.
- Compliance complaints must be properly investigated and the law enforced. When the California Department of Education (CDE) is asked to reconsider a compliance complaint, the reconsideration should have to be signed off on by the Supt of Public Instruction, and if the parents of the child wish it, CDE must be required to publish it on the CDE website. Moreover, aggrieved complainants should be able to have the decision reviewed by the State Attorney General. A meaningful CDE complaint procedure will make it unnecessary to pursue Due Process at all in many cases, saving everyone involved a lot of time and money.
Congress should add some such requirement to IDEA, so that all SEAs are made accountable to enforce the law. This will result in better outcomes and less expense in all 50 states, since many problems will not happen anymore, and fewer of those will need to go to hearings or Federal court.
- State Education Code should be made to conform to IDEA on Procedural Safeguards. For any child disabled under Section 1401, Section 1414 requires prior notice for ANY evaluation of that child, and that notice has to meet the IDEA standards for any educational assessment of that child, whether he has been qualified for Special Ed or not. But state law withholds that protection until the kid is actually qualified, creating an incentive to districts to keep him out of Special Ed and for CDE to muddy the waters by citing state law. Federal law holds, but it doesn’t get enforced, which also creates a motivation for parents to get their kids into Special Ed just to get unambiguously protected. Needless to say, this costs districts a lot of aggravation and money, which is in short supply these days.
Peter Attwood
909-464-1631
951-897-1721 cell