Many clients come to me with vindication on their minds. They feel they have been wronged and want to inflict pain on whomever did the wrong. They want revenge. This is especially true in the field of special education law. They want to "get back" at the school district that they felt is interfering with their child's education; or, the school district wants to show the parents their place, which is not to interfere with how they are handling the disabled children in their programs and that, somehow inherently, they know better than the parents.
However, that is not what the law is about. The following is a longer version of what I tell any client that comes to me with a revengeful goal.
The law, especially the civil law of which special education law is a subpart, is not about revenge or vindication. If that is the sole goal of pursuing legal assistance, two things are true for me: (a) I won't take the case; and (b) the client will never feel satisfied. More on these two results in a minute.
But, first, the response I get to this principle is "Well, what's the point then?"
The answer to this is very simple: The purpose of civil law (and especially special education law) is to put the wronged person back into the same position they would have been had there been no wrong.
Let's examine this with a simple hypothetical: Imagine a neighbor was trimming her hedges and she accidentally cut off a limb on a tree in your yard. You had grown that tree from a sapling. The tree doesn't die, but does suffer a bit in growth. You have to spend a lot of time and effort to protect the tree and make sure it lives. You are really mad at your neighbor (probably, there is some other cause of that anger and this merely exacerbated it). You want your neighbor to go to jail. You come into my office seeking legal help.
Aside from me giving you a shorter version lecture on this topic, what will the law do?
First, the law will NOT put your neighbor in jail. Jail is only for criminal actions and this is not a crime. It was an accident, for which the civil law is designed. We will discuss the nature of the civil wrong - it is trespass (unlawful encroachment onto your property without permission causing a harm).
Second, I will try to ascertain why you are so angry (if it is caused by something other than the tree) and what the true costs (we lawyers call this "damages") the harm to your tree incurred. For example, you spent money to protect the tree; the tree survives; and there may be some sentimental value to the tree to you.
Third, I will discuss what is the goal of the case. What would put you back in the position you were had your neighbor not accidentally cut off your tree limb? This might be an apology; it might be some money to reimburse you for the costs incurred; or it might be for the neighbor to pay to have a new tree planted in your yard.
But you want to sue and get them back for what they did.
At this point, I will politely thank you for coming to my office and advise you that I don't take cases for revenge. Maybe you will say, OK, I don't want revenge, I just want some repayment here. Then we have a conversation on how to go about achieving the goal.
Now, this is the most important part of this post. Achieving the goal is RARELY if EVER reached by litigation, by suing someone. Adopting a "bully" attitude NEVER achieves the goal. Remember that old saying your mom used to say, "You catch more flies with honey than with vinegar?" (We won't discuss why you want to catch flies in the first instance, but you get the point).
There are many ways to achieve the goal without a big fight.
These principles ARE and SHOULD BE applied in the special education arena. If your disabled child is not receiving services that provide them with an equal opportunity at a "free appropriate public education" (FAPE), then we need to have a discussion on how to achieve that goal. Resolution may be as simple as explaining to you your rights as a parent and your child's rights and how the process works. It may also be as simple as being an active, yet collaborative, participant in an IEP meeting or an eligibility meeting or in the evaluation process.
Occasionally, clients come to me after working with an advocate. Some advocates (certainly not all or even most, but some) either provoke the revenge mentality or make it worse with the clients. While I understand the reasons behind this (often advocates are parents of disabled students who have had to fight their way through the system on behalf of their own child with little knowledge of special education law and with some resistance from the school districts), it does not justify it. Some advocates misdirect their anger from their own experience towards the client's school district. This causes a lot of misperception and sometimes legal inaccuracy about the client's situation, and consequentially creates a negative atmosphere in which to create a solution.
Representing parents in a special education matter must be handled in a calm, objective atmosphere with the goal of a collaborative solution that truly helps the child. Bitter fights over minor procedural mistakes do not necessarily help the child. Certainly, a battle purely on "principle" is not a reasonable strategy because it ignores the needs of the child.
Part of this calm, objective atmosphere is the realization of two key facts: (1) the parents are often panicked or in grave fear for their child's future; and (2) most school district special education personnel really want to do the best thing for the child. [Thank you to my colleague Katie Kelly www.katiekellylaw.com for expertly enunciating these two salient issues to me.]
Most people, including those on the school district side, do not go into education (or special education, for that matter) without the bests interests of children in mind. Extremely few school district personnel are vindictive about a special education situation. Thus, parents should likewise not be vindictive. It makes resolution that much harder (and expensive, if you are paying a professional, such as an advocate or attorney).
So, if you arrive in my office or contact me with a special education issue, I will represent your rights zealously and with passion. I will try to reach the best possible solution to your disabled child's educational problem. I will NOT seek revenge or a bitter fight with the school district, but I will fight with fervor if I encounter the rare obstinate administration.
If you keep these thoughts fresh, in the end, you will be much more satisfied with the result and with the legal process.
Now I will sit and wait for the anticipated onslaught of hate mail . . . LOL
Great piece - and I have to agree with you. I find revenge is truly most of what I have to deal with when a parent finds me for help.
ReplyDeleteI try to explain things just about like you do here but it is very difficult for parents to see this as they have been blinded by bullying of the school to the parents (in many cases) and when that bullying continues for a long time - it only adds fuel to their fires.
I explain that I advocate for the child to receive FAPE and then after we get the an appropriate IEP in writing - then if they want to go on their tire raid they can do it after I am finished - not during or while we are working towards the goal of FAPE.
While I agree with most of the substance of your article, I also feel there is a hint of what I call the pathologizing of parents - a very common element of what professionals of all kinds do to parents - some without even realizing they are doing it.
ReplyDeleteI like to deal in facts. In the blog article, you say, "...most school district special education personnel really want to do the best thing for the child." Where is your data on this? On what do you base that statement? I am a bit amazed anyone working in the special education industry could be naive enough to really believe this myth.
I do think it's more important for parents to realize they need to remove the emotion as much as possible in order to work to get what their child needs - an appropriate education. I think to try and sell the myth (to parents) that school districts echo over and over (only wanting the best for their child) when in reality they may be retaliatory in their actions and words - is doing a huge disservice to those parents and isn't the reality.
While I understand the analogy of the tree I remain amazed you relate this to the close personal and intimate relationship of parent to child; a child who may have been recently "destroyed" by the actions of supposedly "well-meaning" staff of a school system.
I agree, however, that parents need to channel that emotional energy into a productive venture to get the services their child needs. That can take some time and work - not something in my experience most attorneys I've met are willing to take the time to do with their clients.
Parents need to be taught how to advocate for their children in a productive non-emotional way - agreed. But professionals also need to take a hard look at their role of pathologizing parents and they need a lot of empathy (not sympathy) in order to walk a mile in the shoes of some parents.
I appreciate your comments, however, I think you are confused about my point. First, my "data" on people in special education is from (a) personal experience with my own child, who has Autism; and (b) my professional experience in many cases with many school districts. Beyond that, I ask you to consider why else would someone go into special education? It certainly isn't for the money or fame. And what data do you have to counter that assertion? Do you have statistics on "bad school districts?" There are, indeed, school districts that are obstinate and try to obfuscate the process. I am not naive about that. But my response to you would be, "OK, fine. Bad school district. So how do you handle that?" It is one thing to talk tough, it is another to deal with the practical realities of trying to help a disabled child (and it isn't substantially different from trying to help a disabled adult in a discrimination claim (of which I have also done plenty). Finally, I wasn't analogizing the tree to the parent-child relationship. This is where I think you fell off the track. I was analogizing the legal process in a civil claim to the special education process and how you approach it from a legal perspective. If a child is truly "destroyed" by the actions of a school district staff, then, again, you try to figure out a solution to get that child back to the position he/she would have been had the school not destroyed him/her. Whether that means a different placement, a different staff, a different curriculum, related services, etc., it all depends on the case. But still you won't achieve that result going in with a lot of negative emotion and mindless anger. I believe as both an attorney in this area and a parent of a special needs child, I have a healthy dose of empathy for both the disabled child and the parents.
ReplyDelete"Some advocates (certainly not all or even most, but some) either provoke the revenge mentality or make it worse with the clients"...as an advocate I find this comment condescending. The "revenge" philosophy is not unique to - as you say - advocates. I've seen some attorneys, school staff, parents, and others at IEP meetings sabotage their efforts with the wrong attitudes and strategies. Since you have shared this blog with members of COPAA (many of whom are seasoned advocates as well as parents)I suggest you keep your demeaning observations to yourself.
ReplyDeleteI thoroughly agree with you... I am an advocate and agree that there are "some" who make the situation worse with the parents because of their own experiences or lack of knowledge of the law. But I have a similar lecture that I give my vengeful clients. We are in the business of assuring that the children receive FAPE... Not making another person suffer. So thank you for your big post that was so eloquently put.
ReplyDeleteI’ve been through 2 due process hearings and one lawsuit. Revenge can never be the motive. Personally, I don't take offense at statement regarding advocates who provoke. He did say SOME. That doesn't mean most, and probably doesn't mean most of the ones who belong to COPAA. Yet, there are SOME advocates who really don't do a good job. Just as there are SOME school districts who really ARE horrible, and SOME teachers who lost heart for the kids after their 3rd year and should have quit long ago. Yes, there are SOME attorneys, SOME parents, etc... who are out for revenge. I don't think omitting them from the article was a mistake. He wasn't trying to write a book. He was trying to make a few points. Take the article for what it IS, and not what it left out.
ReplyDeleteAnd speaking of leaving out... I think what you said is very true in that "most" school sped folks really do want to do the child right. However, I think you left out a critical ingredient of the formula: Unfortunately, most sped folks are very inadequately trained TO DO what the child needs. AND they are inadequately trained in special ed law. This means that often they are acting out of ignorance rather than obstinance. They limit the services to what they know how to do and/or what the administration has told them to do, versus what the child needs, and they get frustrated when parents ask for XX and they don't know what it is or how to respond.
Another critical piece of the puzzle is that, while most educators who work with children want to help the child, unfortunately the educators have bosses who often will get in the way. AND, many bosses really don't know special ed law, so they get frustrated when parents want XX because they think they only have to offer XYZ. And the classroom teachers have even less knowledge in how they should help children with the most common type of disability: reading/dyslexia. And of course, it goes downhill from there. Many love working with sped kids, yet many of those same staff are of the mindset that sped kids are not capable of being like their same-aged peers, so they think parents who have high hopes and dreams for their children are over-zealous and need a reality check.
I approach this theologically. Vengeance is not mine; it's the Lord's, and giving place to God's wrath makes more sense than blocking it by my own. My job is to defend the kid, and others beyond this case of course, and retribution beyond this is far outside my jurisdiction.
ReplyDeleteMany no doubt want to do right by the kid, but they also want to serve the district. And they can't serve two masters - they will love one and hate the other, serve one and despise the other. Once they've decided they're going to love and serve the district, they have to hate and despise the kids. It's how the universe is constructed. This is acknowledged by anyone that ever drafted or voted for a conflict of interest statute. We need to get over being mad about it - mosquitos are biting me just now, and a scorpion will sting.
Often they will see no conflict between serving the kid and serving the district, and if that happens, we can work together. We just have to remember how it is, not kidding ourselves it's otherwise.
Something else crossed my mind today about this point. It ties in with the fact that often the diagnosis of a disability causes friction between the parents and a disruption or disturbance in the marriage. Unfortunately, sometimes one of the spouses leaves the marriage and the child behind. In these situations, the emotions are even more raw. The remaining caretaker parent is angry, not only at the school for failing to provide adequate services, but also from the stress of being a single parent of a disabled child. There is anger and resentment at the departed spouse and this anger may be misdirected at the school district. As Pat Howey wrote in her excellent article "How to Help Parents Move Beyond their Emotions - to Advocacy" (http://www.wrightslaw.com/howey/help.parents.advo.htm), "If you are like many parents, when you learn that your child has a disability, you turn to school personnel and medical specialists for help. If your school district does not provide your child with appropriate services, you get frustrated and angry. If you believe your child was damaged, you are likely to feel rage and betrayal. Once broken, trust is hard to mend." Compound that anger with that caused by a spouse that leaves, the trust issue may be nearly impossible to mend and that is where an objective, calm third party (advocate or attorney) who knows the law can assist the parent and take those emotions out of the equation.
ReplyDeleteI think you're confusing the parents desperation to get appropriate services for their kids as "wanting revenge". This sounds like more school district psycho-babble to undermine parents and make them feel bad for advocating for their kids.
ReplyDeleteI'm going to assume that your comment reflects your inexperience in handling multiple cases in special education law.
ReplyDeleteAnd your comment above reflects your obvious smugness and animosity for parents.
ReplyDeleteIt's not smugness or animosity for parents. I'm a parents-side only attorney. You are missing the entire point: what positive things for the child do you believe are accomplished by taking your anger out on the school district? Don't you think your child might now be a target because of your attitude? After all, if the purpose is to help the child, you want to make sure that after you get the appropriate services in place, the people who administer those services will actually do what is necessary and in a caring manner. Ticking off the school district won't accomplish that goal in the current school year or in future school years. And then what happens? You're in litigation year after year, while your child suffers. Is that a good outcome?
ReplyDeleteI am not missing the point. ALMOST EVERYONE who hires a lawyer starts off wanting "revenge", but what they really want is justice, and in special ed cases, they want school districts to adhere to the laws and help their kids learn. The parents are angry and part of your job is to calm them down and help them keep their "eyes on the prize" which is an appropriate, effective education for their kids.
ReplyDeleteI always find it odd when lawyers blog disparagingly about their clients, it's unseemly at best. I agree with cjo, your observations are demeaning and not helpful, you could have approached this subject without the ridiculing tone, the way FROM EMOTIONS TO ADVOCACY does.
First, I did not disparage any client.
ReplyDeleteSecond, the "client" is NOT the parent(s). The client is also not the advocate. For parent-side lawyers in special education cases, the "client" is the child.
Third, it is not the role of a lawyer to "calm them down and help them keep their 'eyes on the prize'. Lawyers are not therapists and, again, the parents are not the client. The role of the lawyer is to zealously represent and enforce the rights of the child within the boundaries of the law or a reasonable extension or modification of the law. True, lawyers need to manage the expectations of the parents by informing them what the law can or cannot provide and assure that the school is providing appropriate services.
Fourth, you may not like the tone, but the point is made in a blunt manner because there are parents who have unrealistic expectations (like getting a teacher fired) which are completely out of the control of the parent-side lawyer (and I use that term merely as a point of reference). The point of the entire blog is that a parent must come to the table willing to listen to the lawyer as to what and what cannot be accomplished. Parents and advocates (or both) who come to the lawyer seeking revenge, rather than an open mind, are setting themselves up for failure.
Emotions to Advocacy is an excellent resource, but it is directed towards parents (and advocates) who take on this task without the role of a lawyer. It teaches things that we as lawyers already know - how to approach a special education case objectively and within the spirit of the law.
Sometimes the truth needs to be told in a more direct manner.
And this discussion might be more productive if your profile was public. Without that, I have no idea what your agenda is.
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