Advocacy: Parental Participation
By Brice Palmer
Is it a right?
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Parental participation has trickled up to near the top of the list of what irritates many parents. I don’t know how widespread that irritation is. What I can say is many parents who get in touch with me are furious about getting shut out of being able to take a worthwhile role during IEP meetings. Specifically, parents tell me that they resent facilitators or compliance officers who dominate the IEP meeting conversation.
That word “meaningful” is what school districts seem to quibble over.
We say the IDEA gives parents a right to take part in IEP meetings and develop the IEP.
What is a right?
And what gives parents the right to participate in a meaningfully way?
According to W.W. Buckland, the word right is “one of the most ambiguous words in the English language”. When we use the word right in special education we mean that we have an interest or expectation guaranteed by law.
The IDEA guarantees a parent’s right to participate, right. Oh yeah, you say? And you know Mr. Garner’s description of a right isn’t the way it works in your school district, right? You have the law on your side, right?
Mark your calendar for August 24, 2015. That day is the 1,605th anniversary of the first sacking of Rome by the Visigoths. As the story goes, the barbaric Visigoths led by Alaric banged on the gate of Rome demanding entry to the city. The Romans replied saying, you cannot come into Rome – we have laws.
To which the Visigoths replied – we have weapons and a nasty temperament.
It was the nature of the Visigoths to break things. Rome relied on its laws thinking the Visigoths would appreciate that a law is a law.
Warning: I am neither an attorney nor a legal scholar. What follows is the result of a little poking around to see what some heavyweight decision makers have said about a parent’s right to “meaningfully” participate.
The trail begins in 1988 when the US Supreme Court said Congress provided the team that develops the IEP must include the parents, 20 U.S.C. § 1414(d)(1)(B)(i), and must consider “the concerns of the parents for enhancing the education of their child,” citing 20 USC § 1414(d)(3)(A)(ii). In addition, the Court said, ([t]he IEP team must “revise the IEP as appropriate” to address information about the child provided by the parents. Honig v. Doe, 484 U.S. 305, 311 (1988).
These principles are also a part of the US Supreme Court’s opinion in a case called Board of Education. v. Rowley, 458 U.S. 176, 179 (1982)
The IDEA preserves those principles by “ensur[ing] that all children with disabilities have available to them a free appropriate public education” and by “ensure[ng] that the rights of children with disabilities and parents of such children are protected.” 20 U.S.C. § 1400(d)(1)(A) & (B). You can read the rule at https://www.law.cornell.edu/uscode/text/20/1400
In 2005 the US Supreme Court issued its opinion in Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 53 (2005) (“Parents and guardians play a significant role in the IEP process.”).
The school district must provide a free (and) appropriate public education “in conformity with” the child’s IEP. 20 U.S.C. § 1401(9). In particular, the child’s educational placement must be “based on the child’s IEP.” 34 C.F.R. § 300.116(b)(2) (formerly § 300.552(b)(2)). Finally, parents must be members of “any group that makes decisions on the educational placement of their child.” 20 U.S.C. § 1414(e).
The US Supreme Court has not swayed from those principles. In 2007, the US Supreme Court wrote in a case called Winkelman ex rel. Winkelman v. Parma City Sch. Dist., 127 S. Ct. 1994, 2000 (2007):
“This Court consistently has recognized the critical importance of the IDEA’s procedural protections. Rowley, 458 U.S. at 205 (“the importance Congress attached to these procedural safeguards cannot be gainsaid”).
And, the Court said,
“(parents enjoy “enforceable rights” at the administrative stage and in federal court). The Court concluded that “[t]he IEP proceedings entitle parents to participate not only in the implementation of IDEA’s procedures but also in the substantive formulation of their child’s educational program.”
“It seems to us no exaggeration to say that Congress placed every bit as much emphasis upon compliance with procedures giving parents and guardians a large measure of participation at every stage of the administrative process, see, e.g., §§ 1415(a)-(d), as it did upon the measurement of the resulting IEP against a substantive standard.”
Active participation on the part of parents is an important principle in the procedural safeguards the Court was talking about. An important part of the mandatory procedural safeguards is to secure the rights of parents to have an active role in educational decisions concerning their disabled child. That is set into the law at 20 U.S.C. § 1415(b)(1) (parents must be given the opportunity to examine all records relating to their child and “to participate in meetings with respect to the identification, evaluation, and educational placement of the child, and the provision of a free appropriate public education to such child”. You can read it here https://www.law.cornell.edu/uscode/text/20/1415
Yet, it seems many parents are marginalized by the school district during meetings and follow-up correspondence. And, we often argue that there are laws that give us the right to actively and substantially participate (meaningfully).
Aren’t we a little like the Romans when we say to the school, you can’t cut us out of the decision loop because there are laws that give us the right to participate? And doesn’t the school reply with something similar to what the Visigoths said – we have weapons and a nasty temperament?
What is more important; that we understand the nature of the laws or to understand the nature of people?
What good is a right if we aren’t able to enforce that right?
The history of parental participation goes back a long time – and – that history is an eye opener.
Letter to Gramm, Office of Special Education and Rehabilitative Services
June 12, 1990. 17 IDELR 216, 17 LRP 1294
‘Under EHA-B, the special education and related services required by a child with handicaps must be contained in the child’s individualized education program (IEP). 34 CFR Part 300. Placement decisions must be based on the child’s IEP. School districts must afford the parent every opportunity of participating in the IEP meeting. [EHA-B, requires that each child’s IEP be developed, reviewed, or revised at a meeting between parents and school officials, which must occur at least annually. 34 CFR §§ 300.343-300.344.] Under EHA-B, parents “are expected to be equal participants along with school personnel” at all IEP meetings. Appendix C to 34 CFR Part 300 (Ques. 26). The IEP meeting serves as a communication vehicle between parents and school personnel, and enables them, as equal participants, to jointly decide upon the child’s needs, the services to be provided, and the anticipated outcomes. If, during the IEP meeting, parents and school staff are unable to reach agreement, the agency should remind the parents that they may seek to resolve their differences through due process procedures. Appendix C to 34 CFR Part 300 (Ques. 33). Every effort should be made to resolve differences between parents and school staff without resort to a due process hearing (i.e., through voluntary mediation or some other informal step). However, mediation or other informal procedures may not be used to deny or delay a parent’s right to a due process hearing. Ibid. I am enclosing for Mr. Donaldson’s information a copy of questions and answers about IEPs that appear at Appendix C, 34 CFR Part 300 (Ques. 26-35).
Notice that the history of OSEP and the courts discussing parental participation is about the law, but they are also speaking between the lines to human nature.
Question: As we advocate for a child, is it more important for us to concentrate on the nature of the law or to concentrate on the nature of people?
About the author:
Brice is a special education advocate who works with parents across the country. He has practiced, taught and written about special education advocacy since 1995. His articles have appeared in The Beacon Journal, published by Harbor House Law Press, Autism Asperger’s Digest, published by Future Horizons, Inc., Family Focus, the quarterly newsletter published by Families for Russian and Ukrainian Adoption (FRUA), and various articles appearing at www.wrightslaw.com. Some of the Wrightslaw articles are: Do the Documents Speak for Themselves?How to Prepare Your Case, Learning To Negotiate Is Part of the Advocacy Process, and How and Why to Tape Record Meetings.
Brice lives out in the woods near Benson, Vermont. Your can reach him by phone at (802) 537-3022.
Brice also answers questions on the Educational Advocate Forum so all can benefit from the answers. or you can Email him.
 W.W. Buckland, Reflections on Jurisprudence 32, 1945,
 Garner’s Dictionary of Legal Usage, Bryan A. Garner
 Congress passed the Education for All Handicapped Children Act (“EAHCA”) in 1975. In 1990, Congress changed the name of EAHCA to the Individuals with Disabilities Education Act (“IDEA”).