March 14, 2008

Winkelman Revisited

During 2007 I devoted several blogs to the Parma v. Winkelman case before the U.S. Supreme Court. Ultimately, through a chain of unexpected events after that decision, I was asked to be an expert witness for the Winkelmans in the remand of their case with the Parma Board of Education. For the purpose of this blog, I’m not going to elaborate on that involvement but ask you to look at The Winkelman Saga at Parent Stories on this website. I learned Jacob’s case, wrote his proposed IEP for 07-08, participated in an IEP meeting with the Parma IEP team, visited Monarch School where he is placed, and observed Jacob in class and at play. I stayed at his house, met his siblings, and felt the environment that has been created as the result of unending litigation and the stress of fighting for your child’s life and his future. I met the Parma attorneys and their special education personnel. And I testified for an entire day of the hearing. So it is not an exaggeration to say that I have revisited this case.

As happens with certain parents who become national celebrities in special education, they become targets for a variety of attorney and school board affiliated groups, the bullseye in the bureaucratic target practice of destroying anyone who gets in the way of the status quo and the lawyer lobby. Even when they win, they lose. And the effort to annihilate such a parent at any price is what the Winkelman family is now experiencing. They are now the target.

Their most recent hearing addressed Jacob’s program and placement for 2007-2008. The district wanted Jacob in a self-contained classroom with far more impaired children than he is. The parents wanted him in regular education in his neighborhood school with appropriate supports, and a phased-in transition to his neighborhood school from the school where he has been the last three years. Parma simply wanted him moved with no transition. Their IEP was grossly deficient and staff remarkably untrained to meet Jacob’s needs. Somehow, the Winkelmans found a young New York attorney, Andrew Cuddy, who represented them pro bono in the administrative hearing, commuting by car from New York to Ohio. This past week, the most recent IHO decision was finally issued. The hearing officer ordered reimbursement for the unilateral placement at Monarch because Parma’s IEP was not appropriate. The order could not have come at a more appropriate time because Monarch School had permitted Jacob to remain without tuition payment, pending the results of the hearing, and had no choice but to terminate his placement there for fiscal reasons. Finally, it was over, Monarch would be paid, and the family tasted the flavor of justice in the face of overwhelming odds and past defeats.

Alas. That is not the way it works. Winkelmans are the last visible parent hope for today’s thousands of families, and even that glimmer of light must be extinguished. They are one candle in the darkness, beckoning to others to keep warm by their fire. That single light, however, is one light too many. The law firm representing Parma indicated they would appeal to the State Review Officer within 24 hours of the decision. Think about that and all of the money that has gone into this case. And think of Parma- not a well to do town, with houses in foreclosure, including the Winkelman’s. Where is all of the money to litigate this case coming from? Certainly not that single school district! There have been two prior hearings- 2005-2006, 2006-2007, and the current one, 2007-2008. For the first hearing, two bills alone, the IHO and the court reporter, totaled $118, 346.95. To date, this case must have easily cost a million dollars. What is astonishing is that nobody in the hearing room except myself and his parents had seen Jacob in an instructional setting in at least a year. He was a phantom, the Winkelman’s “autistic kid”. That was his only identity. The school district did not know or care who this million-dollar boy was, what their money was buying, whether he was smart, what made him laugh, what had him angry. But they sure knew who his family was. Their one worry- parents who will not quit because they believe that what they were doing is necessary in order for their son to survive. Parma is obviously getting ready to return to the U.S. Supreme Court. Money is no object against this ghost of a boy. But destroying his family is.

The day of the decision a week ago, Parma sent the Winkelmans a Notice for Jacob’s Annual Review. Now remember, Parma has not paid a penny toward the current placement and there is now a judgment against them. Also remember that they have not yet appealed the IHO Order to pay for Monarch School. In the Notice they say they want to have the IEP done by the end of April to allow May and June to transition Jacob from Monarch School. Hello? Earth to Parma! Are you there? What they propose is the remedy to the case they’d just lost! The overt harassment of such a letter to a family without money, whose son is about to lose his placement, and whose home is in foreclosure is unspeakable. And the letter was sent with no appeal having been filed. What makes this district think it can act with such impunity, such malice, when it did not appeal the IHO decision? Being a veteran of such things I think I know the answer. Ohio State Ed and the national network of school boards and board attorneys are complicit. That can be the only answer because it is the State who is to enforce IDEA compliance at the local level. That is not happening. This is a drama with a scenario already written, Ohio’s own version of the theater of the absurd. Does Parma have the right to appeal? Certainly. But they do not have the right to break the law by refusing to pay for an ordered placement and not appeal. So why this Notice now for Jacob’s Annual review? Why not an immediate appeal? Parma will say it is because of the anniversary date of the first meeting of last year’s IEP meeting. But, there are many dates from which one could determine the anniversary date for this IEP. And there is a changed status. The district is demanding an IEP meeting when they have not paid one penny for Jacob’s current placement. No recent public money has been spent on Monarch, only litigation fees that could have paid for all of the years of Jacob’s tuition there plus a good vacation for his entire exhausted family. I can only conclude that this delay is because they know that Jacob will lose this placement if this year’s tuition is not paid, forcing his parents to either teach Jacob at home or put him in Parma with a destructive and inappropriate program, staff untrained to meet his needs. Time is on the side of the powerful. It is the ultimate management tool for the strong against the weak.

I’ve seen this happen many times before. It was precisely the scenario used in the Arlington v. Murphy case. I wouldn’t be surprised if those players are advising Parma at this very minute. The bitter irony of the U.S. Supreme Court decision in Winkelman is that it solved nothing and changed nothing. Imagine if Jeff and Sandee Winkelman try and appeal their case at some point pro se because they’ve worn out lawyers and firms representing them? And imagine the district court telling them that Winkelman does not apply because they cannot represent Jacob, but only their own interests? Get ready. The handwriting is on the wall. And that may be the goal. The phrase over Dante’s Inferno read TAKE AWAY HOPE ALL YE WHO ENTER HERE. We are in special education Hell. The Winkelmans are on the precipice of Hell’s door, clinging to hope that they will be saved. Jacob is a dear and deserving boy. What he needs Parma refuses to provide. I believe in the power of prayer. I also believe that a good kick in the pants and a political demonstration around the Parma Board of Education building is a good idea. Join me?