When Your Special Needs Child Is Discriminated Against
S. L. Crum, B.S., M.S., Ph.D.

Nothing verbal counts

As much as we wish it were different, we live in a society where a person’s word is not there bond. Of course, there are notable exceptions, I was recently misquoted the price for a rehabilitation software from Brain Train, Inc. by several thousand dollars, but the owner, Virginia Sanford honored the price mistakenly quoted to me by her employee. This admirable behavior is, however, the exception rather than the rule.

Think about it, if you buy a new car and the salesman tells you that all parts and labor are covered for three years or 100,000 miles, you better have that in writing. If the landlord tells you that the rent is $895.00 per month and will remain constant for a year, you best have a lease that insures that. If you hire a contractor to add to build your new home, you better get blue prints stipulating everything to be included, as well as a contract that is carefully reviewed by your attorney. Moreover, when the contractor replaces the agreed upon instant water heater with a regular one, and omits the hurricane windows, you not only need to speak to him, you need to get your complaint in writing and do so immediately. Likewise, when the school says they are going to deal with the discrimination your child is facing, you better file your complaint both verbally and in writing and make certain that you do it in a fashion most likely to ensure your child’s rights.

The fact is most parents don’t want to confront school personnel. Most of us are sufficiently taxed by earning a living, maintaining a home and trying to cope with our child’s special needs when they are home with us. Yet, there is no one else besides us to protect our special needs children since they are usually unable to advocate effectively for themselves. When we do this, we can’t rely on verbal promises from school personnel anymore than we would rely upon verbal promises from the used car salesman. Just as it isn’t good enough to say to the car salesman, “I wish this car ran as well as you said it would”, you can’t simply say to the teacher, “I wish Joey didn’t have to be in time out”. You need to be clear and specific in both your complaint and your desired resolution. You need to tell the used car dealer: “This car overheats every time I get to 40 miles per hour, so I need you to replace the radiator. Likewise, you need to tell the teacher: “Time out in the seclusion room is not an acceptable discipline for Joey. You need to develop a behavior modification plan”. Then you need to repeat it in writing.

Met with the person who has authority to rectify the situation

To begin with, go in and sit down with the person at the school who has the authority to address the problem and let them know both your concern and what actions you would like them to take to address it. Be as specific as possible. For example:

While speaking be calm, courteous, and collected, but also focused and firm. End the conversation by saying:

If the person indicates: “I don’t know that we can get a homebound instructor.” calmly say:

In other words, don’t argue, but don’t let them off the hook. Make it clear that you hold this individual personally responsible. Of course, this person will be uncomfortable. But, that is good. It is only when people are prodded out of their comfort zone that they are motivated to solve difficult problems.

The follow up confirmation letter

The basics

Follow up this verbal notification with a written confirmation once again outlining when you met with them, the problem you raised, the reason you perceive this as a problem and the resolution you believe appropriate. Then thank them for their professionalism in accepting their responsibility to resolve this issue and protect your child from further discrimination.

Point out the discrimination

Indicate how the problem you are raising is a discriminatory activity against your child. For instance, if your child is being educated in a self-contained class and put in a seclusion room for misbehavior, your complaint may be that your child is being denied the right to be educated in the least restrictive environment, the right to participate in activities such as recess, lunch, music, art, physical education with non disabled peers, and being secluded as a form of punishment; all of which contributes to your child being socially isolated. Moreover, your child is repeatedly punished in a manner that non disabled children are not punished for behaviors that are a function of his disability; thereby being discriminated against for his disability AND being disciplined differently than non disabled peers. Be specific about whether or not this problem is still continuing and how frequently it occurs.

Show that there is a pattern of discrimination

Make it clear in your letter that you are not frivolously complaining about a single incident, but rather a pattern of discrimination that has been evidenced in repeated incidents. If at all possible cite the dates of occurrence that you are aware of and any documentation you have of these events occurring (i.e. another parent volunteering in the room gave you a signed affidavit of what they saw and heard, a classmate described the incident to you, the daily communication journal state that your child had to go to the “time out” room for misbehavior, your child came home crying on such and such a date claiming that the children teased him for being in “time out”). Summarize that because of these multiple incidents this discrimination is severe and pervasive.

Show the negative impact on your child

Explain how this severe and pervasive discrimination has and is negatively impacting your child. For instance, your child is being denied the right to interact with non disabled peers. Your child is not invited to play with non disabled peers after school because they don’t know who your child is. Your child is experiencing school avoidance due to anxiety about being locked in the seclusion room. Your child has been embarrassed by wetting his pants when the teacher did not respond to his calls from the seclusion room indicating that he needed to use the rest room. Be specific and clearly state that you expect the school to stop the discrimination immediately. Further indicate that you want an emergency IEP meeting scheduled within three (3) calendar days to develop an appropriate plan of intervention so that this harmful activity is replaced with positive behavioral supports and appropriate interventions.

Confirm the recipient’s professional responsibility

In this letter, remind the person with the authority to correct the problem that the school district is a recipient of federal financial assistance, and as such subject to federal regulations regarding the education of children with special needs under the IDEA, Section 504 and the American with Disabilities Act.

Get a copy of the individual’s job description and quote the relevant section proving that they actually have the authority necessary to address the problem you have brought to their attention. (I know this requires some leg work on your part, but obtaining a free and appropriate public education for your child requires a lot of leg work if you are to be successful.) This is important both so that the school cannot claim you failed to complain to the proper authority, and so that the recipient is aware that you know the responsibility lies with them personally.

In “loco parentis”, and the individuals personal responsibility

State that since you are required by law to send your child to school, and that while there this person is in “loco parentis” and as you are not present to protect your child, this individual is the one legally responsible to protect your child while they are on school grounds. You want to do this because when you complain to an agency it is very easy for the buck to be passed from one individual to another. But, when you have proven that a specific individual is responsible for your child’s care and that they have the authority to address the problem, their failure to do so becomes intentional neglect. This means they are now personally responsible to address the issues you have raised and cannot simply let your issues fall between the cracks without accepting the consequences of their actions.

Point out the school’s authority to resolve the problem

Then, indicate that the school district has control over both the location where this discrimination occurs and the personnel involved. Moreover, the school district and in particular the director of special education and the principal are in “loco parentis” while your child is on school grounds and have an obligation to protect your child from acts of discrimination.

Point out failure to provide copy of 504 grievance procedures

If, when you spoke to the person of authority they did not provide you with a copy of the required “grievance procedures” available under section 504 that would allow you a “prompt and equitable resolution of your complaint”, indicate that this was not made available to you. Therefore, you are doing your best to state your complaint and your desired resolution in this letter, but, if the district requires you to follow a specific procedure you request that they notify you in writing immediately of that procedure and provide any necessary forms; failure to do so on their part within ten calendar days will be understood by you to mean that this current letter of complaint meets their standard for filing a grievance under 504.

Failure to act is intentional indifference

Be certain to indicate that if the recipient of this letter does not investigate the situation and take corrective action within five calendar days, or if they take action which is ineffective in eliminating the discrimination and protecting your child, you will consider their lack of appropriate action to be a function of inadequate supervision and both “neglect” of the child with whom they hold a relationship of “in loco parentis” and deliberate indifference to harmful discrimination, and therefore, you will be left with no alternative but to hold that individual liable in suit for money damages for the harm caused your child.

Delivery

Make certain that you hand deliver this letter in order to avoid any delay. Be certain to have an exact copy date stamped and signed to confirm receipt; or if the person is unwilling to sign for confirmation, send a second copy via certified mail return receipt requested along with a cover letter stating when and where and to whom your delivered the original and the fact that they acted in bad faith by refusing to sign for receipt.

Protect your child and protect yourself

Finally, if you believe your child is in serious danger, indicate that unless the homebound instructor shows up at your home tomorrow, in order to protect your child and avoid educational neglect, you will need to make a unilateral placement in a private educational agency at public expense and to keep your child there until such time as the IEP has been amended to avoid a reoccurrence of the discrimination.

When phrasing your complaint, be careful to be direct and firm, but do not be negative or accusatory. Simple state the problem and desired resolution as clearly as possible and let the appropriate personnel know you are aware of their responsibility to address the problem and that you expect them to do so.

Finally as a precaution, send a blind copy of this letter to: your child’s physician, your physician and your local Protection and Advocacy and Child Protective Services. Include a cover letter indicating that you want them to be aware of the discrimination your child is experiencing in school and the steps you are taking to protect your child. This is proactive step so that these people will be on the alert if the someone suddenly files charges against you for Munchausen syndrome by Proxy (is a parenting disorder where parents, usually the mother, fabricate symptoms in their children, thus subjecting the child to unnecessary medical tests and/or surgical procedures, or alleged neglect of your child. In the cover letter to each of these recipients ask them to be kind enough to contact you if they have further suggestions as to how you might be protect your child. In other words, you want to illicit their guidance and their support as a hedge against future false claims.

Presented as a community service by,

Susan L. Crum, B.S., M.S., Ph.D.
Special Needs Coach
Able2Learn
Email: Able2learn@live.com
Voice and Fax: 863-471-0281
Website: specialeducationsupport.org