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The Celebration and Pursuit of Potential

  • By:Ron Payne
Ed. Note: This article was authored by Kimberly J. Byrd, Esq., who is a former partner of Payne Law, PLLC and mother of four wonderful children. She can be reached at kbyrd.jdwfu2013@gmail.com

One of the many benefits of practicing law in a small firm is being able to arrange your schedule in such a way that important family events are not neglected. Earlier this week, that particular privilege of small-firm-lawyer-mom-life came in handy and allowed me the time to attend the Special Olympics in my county and watch my two youngest sons compete. The sunny, warm morning began with a parade of the athletes, a torch lighting, pictures with pageant queens and six-foot costumed cartoon characters, and the excited smiles of dozens of kids, each facing one or more disabilities in their daily lives.

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Events of the day progressed and equally excited teachers, volunteers, parents, and other loved ones clapped, shouted, and snapped photos. There was no friction. No inadequacy. No judgment. No trace of the difficulties these kids and their families typically face in their normal everyday lives. Throughout the crowd, the air was filled with encouragement, the joy of watching children freely play without the weight of the concerns which normally dominate their days, and celebration of these kids’ potential. Though the disabilities faced by the athletes differed, the families in attendance were united by their shared experience of raising a child (or children) with a disability and having become a part of the world of IEPs, therapies, and educational services commonly known as the IDEA.

As noted in a previous post, the IDEA provides a baseline or floor of educational opportunity that schools must provide to a disabled child. However, “there’s a lot of distance between a requirement to maximize a disabled child’s potential and a requirement simply to provide a disabled child some educational benefit.” School Districts and Families Under the IDEA Unfortunately, the distance between a disabled child’s potential and the educational benefits they are provided is often widened by other factors such as the educational level or income level of their parents. Researchers in this area note that “data is mounting to support the thesis that students from families without resources are systematically deprived of educational outcomes that would allow them to pursue gainful employment or further educational opportunities.” How IDEA Fails Families Without Means.

While the IDEA allows parents of a disabled child to proceed pro se in administrative proceedings and federal court when challenging the services, or lack thereof, that their child receives under an IEP, the established standards under the IDEA are deferential to school systems and parents bear the burden of proving a violation of the IDEA has occurred, even though the school systems have both the records and expertise required to make such a determination. When claiming a violation of the IDEA has occurred, those families who are represented by an attorney have a much higher rate of success in administrative and court proceedings than do those parents who proceed pro se. How IDEA Fails Families Without Means.

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In general, “[t]he inability of a large portion of American society to afford attorney assistance has been deemed one of the glaring failures of our system, straining the principle of equal justice under the law.” Pro Se Phenomenon Few attorneys practice education law, most of those choosing to represent school systems, and in rural areas there are often few or no attorneys nearby. While legal aid and pro bono programs attempt to fill the void of attorneys in this area, a majority of families whose children are entitled to benefit from the IDEA are unable to gain the assistance of an attorney to ensure their children receive those benefits.

The difficulties faced by these families are compounded by the “increasingly technical nature of the IDEA and the inability of these families to retain professionals to assist in navigating the intricacies of disability definitions, evaluation processes, the development of IEPs, the complex of procedural safeguards, among other provisions in the statute.” How IDEA Fails Families Without Means. Successfully navigating this system on their own requires that parents possess a high level of knowledge about the IDEA, the proceedings of IEP meetings, the particular child, and his or her disability, in addition to the ability to voice disagreement and seek further explanation from school officials.

As the NC State Bar has noted (here and here), unbundled legal services (or limited representation) can be provided to pro se litigants in a variety of contexts, resulting in greater efficiency for courts and administrative agencies dealing with pro se litigants and greater protections for citizens who would otherwise be unable to afford the assistance of an attorney. In the context of the IDEA, there are procedural safeguards designed “to ensure the full participation of the parents and proper resolution of substantive disagreements concerning the delivery of special education services. These safeguards are not simply “procedural” rights; they are the keys to guaranteeing a substantively appropriate education.” How IDEA Fails Families Without Means. Perhaps, as unbundled legal services become more widely available, parents of disabled children will be better able to gain access to those keys and help their child unlock their potential.

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On a personal note, in honor of teacher appreciation week, I would like to express my sincere gratitude to all of the KCS teachers, therapists, and administrators who see the able, not the label, and have worked tirelessly over the last four years to help my sons reach their potential.

Posted in: Education