Sunday, May 22, 2016

Trust Me... I'm A School Administrator!

I recently received an email from the Trial Tips Newsletter titled, "Trust Me... I'm a Lawyer!" The title of the article piqued my interest after dealing with school district attorneys and administrators who didn't always tell the truth over the years regarding Section 504 issues and other issues at Fox C-6.

I started writing this blog to document the lies and deception employed by lawyers, administrators and staff that were used to get around federal law for years as well as giving the public the impression that everything was being done above board. Now that the state audit report has been released, the Fox C-6 community finally gets a more factual picture of what can happen when board members fail to respond to citizen's concerns. 

When it takes the U.S. Department of Educations's Office for Civil Rights (ED OCR) who is in charge of enforcing Civil Rights law, including Section 504, doesn't actually enforce the law but turns a blind eye, it's very easy for the public to get the impression or illusion that school districts are properly following the law.
 
The question is, Why did the ED OCR Office in Kansas City turn a blind eye for years rather than enforce the law?

The current OCR Enforcement Director recently told me there were "scores of reasons" as to why Fox's District Wide Compliance Review hadn't been completed for more than 6+ years. She told me that she wasn't able to discuss personnel issues with me. I voiced my concern with the fact that the Director of the Kansas City ED OCR Office and former Chief Attorney was legal counsel for the Kansas City School District prior to working for ED OCR. The Chief Attorney is responsible for signing off on Non-compliant findings.

The Kansas City Office for Civil Rights has allowed a Resolution Agreement between Fox C-6 and the Office for Civil Rights to remain open for more than 7 years. The Resolution Agreement spelled out what the district was to do in order to meet federal law. Fox's former law firm argued with ED OCR over some of the items that the district originally agreed to do which was negotiated by Fox's former law firm in the first place.

And, the Kansas City Office for Civil Rights has not completed the District Wide Compliance Review which was initiated in March 2010 which was investigating the practices of the Fox School District as to whether it was writing Individualized Health Plans for students instead of Section 504 Plans where students were qualified for Section 504. For those reasons, it's very easy to get the impression that school districts have been following federal law for years when in fact they have not.

A good example is when your school district is required to reinstate a Section 504 Plan that had been taken away 6 years earlier by the district's former assistant superintendent and Section 504 Coordinator. Fox's former Section 504 Coordinator was demoted after derogatory comments were traced to his home and the home of Fox's former superintendent who "retired" and who's husband was fired in 2014.
 
Advocating for what is right can be a very tedious and time consuming effort.

Educating parents, school board members and educators along the way will hopefully make it easier for anyone who has to navigate the 504 or IEP process or is put into the same situation. I quickly discovered that some lawyers will improperly train or mislead educators and school board members in order to support their agenda. 

You can certainly learn a lot about how to keep a watchful eye on your school district, MO DESE and the Office for Civil Rights when it takes years to get things corrected. Hopefully you won't have to.

Moving Forward with New Administration
Fox has many new administrators since the "retirement" of Fox's former superintendent in 2014 and the retirement incentive program ended in 2015. I think the district is headed in the right direction but it's going to take some time to rebuild that trust with the community. Only time will tell and having more watchful and aware citizens should help keep the district moving in a positive direction.

The Trial Tips Newsletter is a free weekly e-zine for trial lawyers published by Elliott Wilcox. I stumbled upon the Trial Tips Newsletter while preparing for a Due Process Hearing related to Section 504 issues with the Fox C-6 School District back in 2010 since we couldn't afford to pay $35,000 to $70,000 to hire a lawyer to represent us during a Due Process Hearing.

After reading the recent Trial Tips article, "Trust Me... I'm a Lawyer!", the first thing that popped into my head was a comment made by a Fox C-6 administrator at the start of our Early Complaint Resolution (ECR) meeting with attorneys from the U.S. Department of Education's Office for Civil Rights (ED OCR) and a few Fox C-6 administrators and an attorney from the district's new law firm in August 2014.

ED OCR came to Fox to mediate the reinstatement of the Section 504 Plan that had been removed by Dan Baker, Fox's former Section 504 Coordinator, in September 2008. Yes, it really took 6 years to reinstate a Section 504 plan. It was helped by the fact that Fox had hired a new law firm and our former superintendent had "retired" and the fact that Fox's former Section 504 Coordinator had been demoted to a principal position in the district.

You may want to read the newsletter article prior to reading the next paragraph using the link below:


The comment made by the administrator in 2014 was, "And you all know, if anything, I'm honest to a fault." right before explaining why a document sent to us was different than the original document that was sent to the U.S. Department of Agriculture's Office for Civil Rights (USDA OCR) in 2013. The document sent to USDA OCR was used to close a complaint with USDA OCR that had been open since 2009. The comment made by the administrator above was what was explained in the article, "Trust Me... I'm A Lawyer!".

That comment really stood out as the administrator continued to explain how there were multiple drafts of the same document and that the wrong one had been sent, etc., etc. We had seen plenty of "mistakes" over the years of final copies of documents not matching the draft copies or not accurately reflecting what occurred during meetings. It was the same old stuff just a different day. It doesn't take too many of those occurrences for you to not believe what you are told by school district attorneys, administrators and even people in the Kansas City ED OCR office. KC ED OCR was always responding with nonsense as to why this or that was never done or how they were still working on things, etc., etc..

That little mistake in sending the wrong document to the USDA OCR was well noted by the National Director of USDA OCR. Just a couple of months after USDA OCR closed the complaint in 2013 based upon the letter that Dan Baker sent acknowledging a disability, Dan Baker convened a 504 Team meeting under ED OCR rules and denied 504 eligibility again. We called and spoke with the Director of the USDA OCR in Washington, D.C about what was done. He told me that, "they lied to my face" when they sent out the letter that closed the complaint. He explained how he had phone calls with Dan Baker and Ernie Trakas regarding their acknowledgement. The Director of USDA OCR informed the district in a letter that by acknowledging a disability to one federal agency meant that person would be eligible under a different agency such as ED OCR since it was the same law.
Trust
is a fragile thing.
Easy to break, Easy to lose
and one of the hardest things
to ever get back.

The newsletter article reminded me of another statement made by the same administrator who said, "And you all know, if anything, I'm honest to a fault.". During a 504 meeting in 2008 when the district was working to remove the Section 504 plan, that same administrator said, "Those were just my notes. Those weren't actionable items." when referencing "the plan" that was emailed to us documenting what the district planned to do earlier in the year.

We had taken "the plan" that was emailed to us to be actionable items since many of the things on "the plan" had been implemented as listed. However, some items on the list weren't implemented. Being told that the items on "the plan" were "just my notes" and "weren't actionable items" causes you distrust what you are told. It also makes you question other things you are being told by district officials.

The original "plan" that was emailed to us was not designated as a Section 504 Plan. That was sort of the crux of the matter since the list of accommodations looked like and smelled like a 504 plan.

It certainly seemed reasonable to think that the items on "the plan" were actionable items. But, when I asked during that 504 meeting in 2008 why some of the things listed on "the plan" weren't followed, the district attorney attending the meeting at the time, asked Dan Baker, if that was the "bulleted list" that I was referring to. It was easy to see that the attorney was already aware of that "bulleted list" aka "the plan".

Due Process Hearings are supposed to be "Fair and Impartial"
I had never been through a Due Process Hearing before so I started reading articles and books on the subject since we couldn't afford to spend $35,000 to $70,000 to hire a lawyer to represent us in a Due Process Hearing. That was the amounts quoted to us by several lawyers. So, it was a matter of getting up to speed quickly on Due Process Hearings and when I found several articles on the Trial Tips Newsletter that were very helpful.

Another reason for not hiring a lawyer and deciding to represent ourselves was the fact that the lawyers that we spoke with told us that the decision had already been made and that hiring them would be a waste of money. Well, that was after we told them who was representing the district and the name of the attorney who was chosen by the district as the Due Process Hearing Officer. A Google search quickly revealed that the Due Process Hearing Officer chosen by the district just happened to be a former law associate of the attorney representing the district. What are the chances of that ever happening?

People are very quick at pointing out that it didn't seem like we would be getting a "Fair and Impartial" Due Process Hearing after finding out that the district had chosen a former law associate of the attorney representing the district. That's why we decided to drop the Due Process Hearing. We knew there was no chance of winning. But, that's when Mr. Dan Baker stepped in and thought it would be good to go ahead and file a Due Process Hearing against us so the district could get some closure on the issue.

Why Fox Initiated Due Process Against Us
Below is a portion of the transcript of testimony given under oath by Dan Baker during our Due Process Hearing in May-June 2010.

Mr. Baker was questioned by the district's attorney as to why the school district decided to initiate Due Process against us.
Question (attorney): Now, recently did the district initiate its own due process against the Simpsons in relationship to the same issue that we're here for? 
Answer (Dan Baker): Yes, we did. 
Question (attorney): And can you explain to me why the district decided to initiate due process. 
Answer (Dan Baker): Yes. My thought was that there might be a chance that the parents, in my words, back out of the hearing that we're having now; and I just felt that getting some sort of resolution to this, some sort of legal vacuum to this other than going through the Office for Civil Rights, was definitely needed in this case. 
Question (attorney): And on what basis did you believe that the Simpsons might be canceling the hearing that was scheduled for this week? 
Answer (Dan Baker): Through correspondence that I had seen through the Office of Civil Rights asking about availability of dates.
You may be wondering why the district would want to spend tax payer dollars on legal fees to initiate Due Process against us since we were dropping our Due Process Hearing. We were too. But, after seeing our Due Process Hearing decision touted around the state by the former law firm as another case they had one in some of their seminars we knew why. 

Testifying in Jefferson City for SB 365
In May 2015, I was invited to testify in Jefferson City in front of the Elementary and Secondary Education Committee on a senate bill SB 365 sponsored by Missouri State Senator Eric Schmitt. The senate bill was proposed because lawmakers in our state were very aware of the amount of tax dollars being spent on legal fees to deny or remove IEP's and/or Section 504 plans from students in our state. I shared some of our story with the Senate Education Committee.

The Missouri School Boards Association and the School Administrators Coalition testified against SB 365.

It's well known that some attorneys are denying or removing IEP's or Section 504 plans from students on the front end and then litigating the matter on the back end when parents work to restore what was taken away. You only have the choice of filing for Due Process or filing a lawsuit in Civil Court after a Section 504 Plan has been removed and you disagree with the District's decision. It's a win-win for attorneys.

The District had no reason to initiate Due Process against us. However, it worked out well for the attorneys in legal fees. It should be noted that the same law firm initiated Due Process against a family in the Wentzville School District a few years ago even after the family had pulled their child from the school district and no longer attended school in the district. Wentzville wanted to get "closure" on the matter just like Fox wanted to in our case. That law firm no longer represents Fox C-6 or Wentzville.

Hopefully School Board Members Will Question More as Well
It's important to understand some of the tactics used by some administrators and attorneys representing school districts in our state so you know what you may be up against.

I spoke with several school board members over the years on the subject of honesty and integrity. One former school board member who was on the school board prior to 2008, told me that we would never get a Section 504 Plan after the school removed it. Another former board member told me that if the board didn't think they should have to do something (provide a Section 504 Plan), they were going to fight it. I guess that's why it was OK to keep approving all of those legal fees over the years.

Whose to blame? Attorneys from Fox's former law firm had been telling educators not to give students 504 Plans for food allergies even if they were eligible for one since at least 2005. That's when a video presentation was posted on a law firm's website stating that position. The video had been recorded at the 2005 Annual School Law Seminar. But, there were also many students in our district who had been denied Section 504 Accommodation Plans for other medical disabilities as well. That's why the District has been undergoing a District Wide Compliance Review since March 2010.

Great Book to Read
In 2010 while preparing for our Due Process Hearing, I also read a book that I found extremely helpful. It was titled, "Disability Deception: Lies Disability Educators Tell And How Parents Can Beat Them At Their Own Game".

The title of the book turned out to be very true after dealing with some of our district's administrators and attorneys representing the district back then. I spoke with the author for quite some time and shared some of our experiences with her. We also talked about the lack of enforcement by the U.S. Department of Education's Office for Civil Rights (ED OCR). She was very aware of that problem as well.

The book Disability Deception is intended for parents and advocates who have students who need or require an Individualized Education Plan (IEP). But, much of that information can be applied to dealing with educators/administrators related to Section 504 law.

If you have a child with special needs or a child who has an IEP and you are having troubles dealing with your school district, I highly recommend reading the book which was published back in 2007. I have loaned out my paperback copy to several parents over the past several years. You can find the Kindle edition of "Disability Deception" on Amazon using the link below:


JoAnn Collins published another book in 2014 which I have not read, titled: "Slaying Special Education Dragons".

Hopefully a few people will find this article educational about some of the tactics used to get around federal laws like Section 504. It's simply amazing the amount of time and money that was spent trying to get around the law over the years.

Reports to the President and Secretary of Education
ED OCR has a new policy in that they post Resolution Agreements and District Wide Compliance Reviews on their website now so the public and other school districts can learn from their findings. Hopefully, Fox's District Wide Compliance Review that has been open for the past 6+ years will be available on their website in the next several months.

You can read about the new policy at ED OCR in the recently released report by the Office for Civil Rights to the President and Secretary of Education using the link below: