Home | What's New | Email

504, Idea, Advocacy and Problem Solving

Copyright 1999 © Roger N. Meyer

DIFFERENCES BETWEEN IDEA AND SECTION 504

Section 504 tended to be in use in the late 1970's through the 1980's, when the first weak version of the present IDEA was in force. As more and more court decisions and interpretations of the regulations for special education for disabled children began to be made, the 504, or non-discrimination protections of the Vocational Rehabilitation Act of 1973 (which protect anyone from discrimination by any program receiving federal funds) found less and less favor. A law that merely forbids discrimination but says nothing other than that a child is entitled to a Free Appropriate Public Education (FAPE) really provides no guidance to the parent or to the schools.

That's why IDEA was passed, because instead of prohibiting conduct, it mandates and prescribes conduct. It also clothes the student and the parent with due process rights not available under Section 504, and very specific and detailed rights at that. Fair Hearing officers, hearing cases under section 504, are guided by what has been applied to that law primarily, but they also use IDEA decisions regarding a particular issue raised in the 504 complaint. The more enlightened ones will order the schools to determine the child eligible for special education under the terms of IDEA. These hearing officers are rare, because Section 504 hearing officers are employees of that very school district they are ordering to do something. Do you see more than a little conflict of interest built into this arrangement?

Well, so did Congress, and that's why it has crafted a law with identified rights of due process, requirements for neutrality by mediators and IDEA hearing officers and staff training in special education law. Following the passage of IDEA 1997, the Department of Education issued a huge training manual with slides, overheads, and the whole shootin' match for educational administrators and teachers involving the IDEA, its regulations, the state laws and state regulations all dealing with the same topic, timelines, schedules, and required actions to be performed by specific persons.

IDEA establishes and enumerates a vast number of civil rights for students and parents, and affirmative responsibilities of the schools.

IDEA 1997 mandates certain kinds of evaluation procedures. It includes the parent at every stage of the eligibility (evaluation) and planning stages (IEP Team meetings) and outlines the student's right to participate in matters affecting his IEP as well as discipline and other related special education issues. IDEA specifies who is responsible for what, and establishes an order of authority as a guide for state educational laws. It outlines specific local education agency and state eligibility criteria to be met before they receive and/or continue to receive federal funding. Finally, the IDEA outlines a very specific protocol as to how IEP's are to be completed, as well as very tight language regarding disabled student discipline (of all kinds). If a school skips or reverses a step in the IEP process, judges and hearing officers have found this "minor administrative error" (as the schools want to call it) sufficiently significant enough to nullify the IEP in its entirety.

Section 504 has none of that.

504 can be swifter in the hearing process, but there is less guarantee of a fair and impartial hearing with a resultant outcome which respects the civil rights of the student and the parent. Lawyers use Section 504 in combination with IDEA to hold the punitive sword of monetary damages against a school district that blatantly and deliberately violates the due process rights of its students and parents, or otherwise interferes with student and parent rights to exercise their rights under IDEA or have unhindered access to the due process protections of IDEA.

Since the Americans for Disabilities Act came along in 1990, parent/student rights attorneys have been given additional leverage, since it, too, identifies specific rights of a disabled person, with the burden of proof rests on the school to show that it did NOT discriminate against a disabled person or did NOT violate his civil rights. Schools realize the danger of being caught in an ADA suit, because they rarely, if ever win. If the child can demonstrate discrimination (not too hard to do) or denial of civil rights (again, not hard to do), the school has to go a very long way uphill to justify or defend such a practice. Schools usually fold or settle these complaints, and an ADA settlement, if violated or not honored by the consenting party, is subject potentially heavy court punishment including imprisonment and hefty daily fines until a situation has been rectified.

504 is fuzzy about all of this, but it lends weight to the credibility of the student or parents' complaint if violations under the general --but not enumerated-- civil rights educational provision under 504 are found. Even if the judge finds some minor technical violations or non-compliance, the very pattern of consistent non-compliance or the character of the violations can again result in a severe reprimand to the district, and orders to immediately correct the discriminatory condition, and provide compensation in money for lost service or lost education. In particularly egregious cases, the due process hearing officer, the state review (appellate) agency or a state or federal court CAN order the district to place the child in an appropriate environment out of district, out of state, and to pick up the entire cost for that placement.

As of the date of this writing (February 15, 1999) the US Department of Education has yet to issue the regulations interpreting IDEA 1997. Much of the confusion regarding the benefit or limitations of using Section 504 can be seen in the conflicting rulings of Federal Circuit Courts of Appeal, regarding the degree to which 504 has been "absorbed" by the later IDEA 1997, and whether standards for provision of FAPE mean the same under both laws and under the unreleased federal regulations.

Under both laws, it is virtually impossible to collect "punitive" damages against a particular person or school district. All the decisions in most of these cases do is provide the student with mandated services refused by the district, and either compensatory hours of education or amounts of money to the parent designated for such "make up." The prevailing parent is to be awarded "reasonable attorneys fees," but many attorneys have been burned when the district or losing party withholds those monies. This leaves it up to the attorney to chase the district down in a separate due process or civil court proceeding for those moneys alone. Young attorneys, finding such realities early in their special education practice, refuse to take these kinds of cases knowing of the delay involved in being compensated. In a few cases, the attorneys have been awarded NO professional fees at all, and although eventually corrected, the amount of money and time they spend to do so sours them on the entire special education experience.

It is no wonder that the ratio of school-paid lawyers to private-market plaintiff attorneys is about fifty to one. There's little money in it. The irony of this situation is that school attorneys often don't even have to know much about special education law. They can use "lawyer tactics" to obfuscate, delay, and confuse the parent in such ways that parents often back down when first encountering this wall of lawyers. Much of their approach to parents is bluff, and some tactics used by such attorneys are unethical and illegal. Parents, desperate to see to their children's' education, rarely have time to tilt against such windmills.

THE REALIITY OF THE PRACTICE OF SPECIAL EDUCATION LAW BY ATTORNEYS

There is another built-in barrier against fairness in this whole circus of lawyers and due process. Parents are free at any time to settle with the school authorities, as they should be. The reality of this, however, is that the parent, utterly exhausted by the process so far, is often willing to settle with a district finally offering what the parent wanted in the first place, or even a little less, just to get on with their lives. This means that the lawyer, who by this time has spent eighty to a hundred and fifty hours on the case (getting it ready for due process) gets little or nothing for his time and expenses. Most parents don't realize that if and when they settle BEFORE a legal hearing, that the attorney cannot petition the court or hearing officer to pay for attorney' s fees, because as far as the hearing officer or judge is concerned, the parties have settled privately outside of the formal judicial or administrative law process.

This means that IF the school district offers to pay parents their attorney's fees as a part of the settlement, it can do so. But it isn't required to either make the offer or make good on its promise, because the district is promising to pay a third party with which it has no direct contractual obligation to compensate for services rendered.

Many school districts routinely renege on this part of the settlement, so unless the parents feel duty bound to pay the attorney (and they should), the lawyers get nothing, or very little for all that time. Can you imagine what any special education attorney feels like when he or she is approached by a parent whose previous settlement with the school has completely fallen apart, AND the parent had either dismissed their previous lawyer or not paid him or her? A naive attorney may take the case on not realizing what has happened in the past, but many experienced special education attorneys (remember, there are just a few of them in any one area) blacklist such parents because (1) they didn't follow their counsel's advice about a settlement offer; (2) may be bad risks for payment of fees; and (3) are known as "bargain-hunters" or "tire-kickers" in the "used lawyer market." Only this time THEY have used the lawyers and are looking at "another chance."

That's the reason why most special education lawyers refuse to accept a case on a contingency fee basis. Unless they have a large practice where they can allow all of these expenses to be "carried" by their other accounts, they end up with ZIP. Only a few of them will practice out of state, and many refuse to do "phone" work for the same reason. This entire scheme is brutally unfair to parents without the resources to foot the cost of a lawyer on their own.

THE CHALLENGE OF ADVOCACY

I'm no lawyer, but believe me, as an advocate, I want a client's assurance that they will stick with the case or at least pay me for my time and my expense.

It is funny how many parents are incensed at realizing they have to pay someone to protect their child's rights, and surprised that the public advocacy and representation services which are tax supported will not or cannot take their case. The fact is that all of those Protection and Advocacy centers (known as P&A's)) are overworked, and often have a single attorney to cover matters for the entire state. Volunteers and student lawyers staff many of the centers, but when it comes to crunch time, the centers have to pay their own staff attorney or community contract attorneys for representing a client. They often end up being very selective in their choice of cases to be handled, so the overflow of cases they cannot manage reverts to the private legal and advocacy market. This has become especially true with cases involving autistic children. Autism, especially high functioning autism and Asperger Syndrome is the fastest growing category of complaints filed against school districts and state educational agencies. For special education attorneys, autism presents an unusually difficult disability to represent, since many attorneys have none of the specialized knowledge about autism that their parent clients possess.

Lawyers and advocates often have to urge their clients not to go for the whole banana at the first IEP meeting, or even the second or the third. Just having an attorney present at an IEP meeting charges the entire atmosphere with an element of formality and adversarial argumentation often causing a hardening of positions by all parties. " Winning" is a progressive process, and it shouldn't involve a knockdown drag-out fight at every IEP meeting. The whole idea of the process and the involvement of an advocate is for parents AND the school folks to learn how to work together. In this regard, I am as much an educator as an advocate. In every meeting I've had so far involving parents and school folks, I bring the same educational material for both parties. To a great extent, my "job" is to work myself out of the job so that the parent knows how to handle things on his or her own and not remain dependent on others in asserting their rights and reminding the school of its duties.

On the last weekend of January, 1999, there was a three-day conference in San Diego involving professional attorneys and parent advocates discussing precisely this dilemma and the other issues I have raised above. I wasn't able to attend; my choice was between going or getting a laser printer for handouts and reprinted articles for parents, educators, and counselors. I chose the latter, because dissemination of information may, in the long run, be a better way of approaching these challenges than training individuals who are already experts and seasoned in the field of advocacy.

Yes, parent education takes time, but the one thing I personally don't have either the time or money for is to take on a client whose learned dependency and sense of "victimhood" is so profound that the client will ALWAYS look to others for help. This is especially so when they've been shown the ropes and have actually climbed them a couple of times under tutelage.

One of the great tragedies of this kind of work lies in the realization that many parent clients are themselves on the spectrum, sometimes more profoundly impaired than their children. You can easily see how parent advocacy spills over into personal counseling and "therapeutic" work with the on-spectrum parent. That's the reason I am especially interested in having marital and couple counselors, as well as professional therapists educated about HFA/AS, because as crippling as it may be for a child, to have a parent not knowing how to handle things for himself or herself, let alone work with the kid makes the parent interface with the special education system especially challenging.

There is an additional challenge to parents and advocates in their dealings with the special education system. This issue concerns judgment, use of time, and exhaustion of resources halfway to a destination. The challenge centers on what can be accomplished every time an advocate or a lawyer is called upon to defend a parent and student's rights. Many parents want all the past wrongs righted at once. They want the whole banana. I am in sympathy with them, believe me. Readers here have often noted that I have poor boundaries when it comes to compartmentalizing issues or topics. This very post is an example of that.

Most folks, including myself, don't recognize the "gag factor." They have their hearts set on settling the whole score all at once. When we deal with institutions, such as the schools, or a business, or any other entity involving more than a single person, many of us want to take the whole thing down. In one stroke. Organizations, just like individuals, take time to learn. They are resilient. They also have institutional pride and a sense of mission. They will resist efforts to change everything all at once. If you think about it for a second, most of us do, too.

Some of what is due our kids and ourselves as parents can't and won't be available all at once, or as a whole package. Not right away. One can't expect a puppy to be housetrained with one firm "no" and leave it at that. As an advocate, I am duty-bound to represent the parent(s) in any way they feel comfortable, and to take on only those duties and responsibilities they assign me. I also feel a moral obligation to look out for their child's long-term interests and for the family or parent(s) capacity to survive future skirmishes with the system.

The following three paragraphs refer to mediation, which is actually what most IEP meetings "need." I see my role as much a mediator as an advocate, because I want a good process, once set in place, to be the basis of future conflict resolution between the parents and the school authorities.

Most conflict arises because the parties see things different ways. In order to arrive at a meeting of minds, I encourage them to demonstrate their problem solving techniques before one another so the other appreciates what it "takes" for the other person to understand that there is even a problem there in the first place. Once both of them "see" the problem, it is possible for them to consider how to solve the problem. Doing so involves each of them being on the same page at each step of the problem-solving process. Rushing ahead to a conclusion by one while the other is left behind in the dust doesn't work. They needn't agree on everything. That isn't the point.

The point is that each party has "learned" how to resolve a problem with another party who approaches problem solving in a different way. If this realization can be embodied in the IEP itself (and it can), future IEP Team experiences could involve the same approach of keeping the parties on track, addressing a single issue at a time, no "backtracking" or rumination on things already reviewed and resolved, and active listening. Bottom lines can be clearly identified, actions and consequences can be discussed, and "fall-back positions" can be constructed into an agreement allowing parties headed for escalation of a disagreement to each retire to a neutral corner, or decide to proceed with other issues first.

Blindness to this very process of how each person or institution solves problems differently is why most issues remain "stuck" in special education disputes.

The end product in a successful IEP meeting and advocate involvement in the process for parents as well as the educators is that the advocate can then begin to back away from the process in succeeding meetings.

One caveat, though.

One "victory" does not end a "war." No general retires her troops following a victory, because she knows that right around the bend is another opposing army mustering for battle. Vigilance and awareness of future challenge is what parent understanding of the law and their parental rights are all about.

The exhilaration a parent feels at having won one round of a special education fight often dissipates in the face of each succeeding round. That not need be the case, especially when different ways of resolving problems exist. It is rare that a school district or "the system" rolls over and plays dead for the rest of the time the child is enrolled. As we've all seen on the ASPERGER list, many parents have a chest full of medals, of purple hearts as well as "victory" medals. Our learning from one another here puts us in the best school of all.

And, it is a school for life.

With all of the above said, I'd like to return to the original purpose of this posting. There are laws and then there are laws. There are good ways to get things done, and then there are muddle-through ways. Before 1997, the parent and child had a fair chance at doing well under either law, but coming out with a bigger prize bag under IDEA. Now, there is no comparison, and the use of 504 has been more recently used for the filing of complaints for discrimination and attorney compensation, both of which are critical to keep the system running. This is an imperfect system that is running, but it may be wiser to change it rather than scrap it, especially in light of what is currently going on in Congress and many state legislatures. These laws were crafted at a time when differences between contending interests could be resolved with a modicum of civility and respect.

There is nothing other than pride that prevents contending parties from shaking hands. Arrogance and pride in public places, whether it be legislatures, or found in the behavior of public school authorities towards their students and parents spells danger for the social contract that legitimizes both institutions. It appears as though it may be up to parents to remind their childrens' educators of the basic rules of civics which the schools teach but often fail to practice themselves.

© Copyright 1999 Oregon Parents United Unless Otherwise Noted
All Rights Reserved

22980 Donna Lane Bend, OR 97701 1-541-389-0004  opu@peak.org