March 3, 2009

Justice for All - Are They Kidding?

Today’s newspapers had two pieces that interested me. First, the U.S. Supreme Court heard arguments yesterday about why Alaska refuses to permit the use of DNA evidence for a man who contends that it may prove him to be innocent. Alaska argues that it would set a dangerous precedent for all criminals who might use DNA for fishing expeditions to exonerate themselves. Oh, I forgot! That’s Sarah Palin country. The DNA is there, ready to be used, and the convicted man is willing to pay for the testing, his request upheld by the appellate court. The state and federal government argue- Nope! We gotcha and we’re gonna keep ya, even if you’re innocent. This sounds familiar. We know there are no competent and affordable lawyers out there for special education parents who disagree with the school district. If you could just get one of those Darn Nice Attorneys (Yeah, the DNAs…) But too bad. We gotcha! And we’re gonna keep ya! We don’t care if your kid has the right services. We’re gonna push ‘em through the system as cheaply as possible and leave them for you to worry about after they drop out or get a worthless diploma.

The second newspaper article today had to do with the corrupt judicial system of state judges in New York. They run for political office in New York and get huge contributions to their campaign from a variety of law firms. This issue is really a doozy and underappreciated unless you’ve experienced it. My experience was in the Duchess County court system and lasted three years in one of the most brazen and corrupt examples of judicial misconduct I’ve ever seen. A federal case I’d filed had been remanded to State court in that the federal judge deemed it to be a state matter. Duchess County is an area where everybody knows everybody else, has slept with them, or been involved in some fairly intimate way. My case there started during an election of local judges. I’d been told by those who will be nameless of the financial contributions from opposing counsel and her friends and colleagues to the election of the judge sitting on my case. I moved to recuse that judge based upon a conflict of interest. While doing research for the motion, I discovered that she also sat on a nonprofit Board for the Arlington Board of Education. Yes, the same Arlington as in Murphy vs. Arlington! And my case before her directly involved that board of education. So not only was the judge bought and sold by the defendants, she publicly endorsed the board of education at the heart of the dispute. When it came time for oral argument on the recusal motion, my case was the last one called. It was in open court. The judge abruptly granted my motion, based upon the computer print out of her name on the Arlington Board, but vehemently denied any financial improprieties. As it turned out, the judge who replaced her was even worse- but that is a story for another day. Justice is a difficult thing to achieve, no matter who you are. For those in special education, it has become virtually impossible.

I was curious to see what some federally funded parent training and information centers are offering before writing this blog, particularly in light of the stimulus money. Wimpy stuff, none of it designed to balance the power of school districts- parents helping parents here, some parent empowerment conferences there, some advocacy classes on Inclusion. The same old crap that leads nowhere. And what are schools doing now? Buying a new book for school administrators and attorneys called IDEA Due Process Survival Guide, A Step- by-Step Companion for Administrators and Attorneys. They are given guidance on early resolution, the Resolution Meeting (Most school attorneys I know skip those and parents can’t make them come.), Child’s status During Pendency, Case Strategy, Mediation, Pre-Hearing Motions, Hearing Preparation, Discovery and Five Day Disclosures, Arrangements for Hearings, Hearing Decision, Attorney’s Fees, and Civil Action. All the right stuff, yet only one side is learning it. And I can tell you that because of what I see here every day. Many of the problems parents now come in with would never have happened 20 years ago. But the schools think they are immune- usually because they are, and stall and delay and refuse in cases that break your heart.

Nicholas Kristoff recently wrote that our greatest shame as a country is our public school system (The New York Times, 2/15/09). He quotes the research confirming that teachers are more important than anything else, and that there is no correlation between teacher certification and teacher effectiveness. Kristoff talks about injustice, too, with America’s best teachers teaching the most privileged students, while the disadvantaged get the least effective teachers. The new Education Secretary is Arne Duncan. Among his many duties is to oversee the “Race to the Top Fund’ of $5 billion dollar grant money to encourage innovation. Who is going to innovate teacher training programs in special education? Whoever that is must recognize that justice begins in the classroom where each special needs child is dually defined as needing equity- first because they are in a public school, and second, because they have the right to special education in order to level the playing field with opportunities to learn the skills they need for independence and self-sufficiency. In addition to the innovation money, IDEA state grants of $11.3 billion are allocated, with $400 million in IDEA preschool grants, $500 million in IDEA grants for infants ad toddlers, and $600 million for vocational rehabilitation. One forgets that special education is big business, and everybody has their hands out. Let’s hope that the sanctimonious preaching about Inclusion becomes a thing of the past, that the harm of Applied Behavior Analysis for many children with autism will be acknowledged, and that somebody will finally teach American children how to read. And somewhere in that mix might be a dollar or two to train nonlawyers to represent parents who cannot function in the system alone.

Finally, a thought about autism and justice. Obama seeks full funding for the Combating Autism Act, as well as life-long services for people with autism. It is obvious to those of us who work with autistic children that many are not autistic and have been mislabled, and that others who have certain behaviors or tendencies are very different than those considered to have autism. For the time being, many schools and clinicians are satisfied to call autism a spectrum disorder because its manifestations are so wide-ranging. The first order of business in combating autism is to better define it. ABA is the method most used to teach autistic kids. I am personally convinced that for some kids, ABA creates the very behaviors it is supposed to extinguish. It is as important to know when a child does not have autism as when he/she does. It is important not to use ABA in place of speech or language therapy, or O.T., or sensory integration therapy. To do so is unjust.