June 9, 2009

Advocacy and Scripture- Who Knew!

It was a Sunday morning which meant I was in the choir loft. I don’t think about advocacy, cases, or the kids and parents I will see on Monday. It is the one day for my family, church and friends. Anybody who goes to church on a regular basis knows that there is a sequence and a ritual to the yearly calendar. As always, I sat there, listening, but also getting the music ready for the next anthem or hymn. I might sneak a peek at the congregation to see if a friend, who loves attending horse races, was wearing one of her Kentucky Derby hats, all feathers and flowers and ribbons. Our minister, Rich Hong, is an unusually bright and interesting young man, passionate about his ministry, adding an intellectual rigor to his sermons that brings color and shading to the well hewn shape of the service. I sit in my Sunday comfort zone, warm and relaxed, as the sermon begins. He begins. A word goes by my ear causing my body to react before my mind gets it- Advocate, advocacy. I’m sitting up straighter than usual and don’t know why. What does it mean to be an advocate, he asks? My central nervous system instantly swung into work mode, paying full attention to his oral argument, genuinely amazed to find the concepts that federal and state courts have debated for over three decades having roots in scripture. The rest of this blog is based on that sermon. You can access it through the church website at www.englewoodpres.org.

…the Greek word “paraclete” means “to call to one’s side.” The Latin translated this as advocatus. But there is a difference between a Roman advocatus and a Hellenic parakletos: in a Roman court, an advocatus pleaded one’s case, but in a Greek court one had to plead one’s own case, bringing along one’s friends as parakletoi to influence the court by their moral support and testimony to one’s value as a citizen. Various Bible translations have used terms such as comforter, helper, and counselor as translations of parakletos. (Exegetical observations, Lectionary designation: Pentecost B, May 31, 2009)

Isn’t that extraordinary? The entire issue of the unauthorized practice of law, of forcing parents to serve as their own advocate and representative in special education, actually has roots thousands of years old, dating back to differences between Roman and Greek justice. The Romans permitted someone else to speak for the person needing representation, the training of that person unknown. Did they have to have special preparation, a license to permit someone to call them to their side for help? It does not appear so. The Romans seemed to understand that there are times and circumstances when a person in trouble or in need required a comforter, a helper, a counselor- or all three. But when that concept was translated and implemented into another country, with different traditions and values, direct help was gone and the person had to defend the case alone. The Greek trade off for pro se representation versus use of an advocate was in the public relations aspect of a dispute. Pack the courtroom with friends to show the judge you had moral support and value as a citizen. In essence, scare the judge by making what he/she does public, and emphasizing that you’re not the homeless guy living under the bridge.

We live in a time when there is nobody to speak for special education. Parents are completely alone, their children fodder for the disability mill that chews them up and spits them out to provide food for the agencies and federally funded parent organizations. All live off the backs of fear and misery and hopelessness, afraid to speak up and do the work because to do so means loss of federal funding. There is no parent training that is meaningful. There is no representation that will take on the difficult cases and litigate them when the settlement offers are absurd. The court system is as broken as the local and state agencies whose cases they are to decide. But if we return to the beginning and learn from it, history suggests a plan. Litigate the case if there is no other way to solve the dispute. Present your case the best you can- but bring friends, bring lots of friends. Invite the press. Yes, emphasize your value as a citizen who is not afraid, a citizen with value.

If you read this blog regularly, you know that this is what I often did when litigating cases. Most due process cases are done with nobody in the room except people from the school district, the parents, the lawyers or nonlawyers, the witness and the judge. It is largely a secret process. Having a newspaper reporter attend will send the board attorney into orbit (always!) and the judge call for a recess to try and force the parent to make the reporter leave. Now we begin to understand the ancient concept- parakletos. Just imagine. The Latino parents are explaining in broken English to the Hearing officer or OAL judge why they don’t want their son classified as Emotionally Disturbed. The have packed the hearing room with friends and family and a Spanish newspaper reporter. The group may spontaneously burst into applause (I’ve had it happen.) or begin the slow, inflected “Oooo” that means the person testifying is lying. They catch things the rest don’t see, “Judge! Look! That man is mouthing the answers to her!” All of this tells the judge that in spite of the assertions of the school district, the parents have value to their community. They are not alone. There are fewer and fewer hearings when there should be more and more. Not because things are better. But because there is no one to represent parents who is both affordable and competent. If they must speak for themselves, then the room should be packed with supporters who attend each day of hearing until the record closes. Their presence bespeaks a kind of testimony that tells the judge not to toss the case and take the easy way out. Even if they don’t win, parents seek impartiality, courtesy, and fairness. Actually, I wouldn’t mind a little of that for myself, but I digress.

John 15:26-16:15 begins:

When the Advocate comes, whom I will send to you from the Father, the Spirit of truth who comes from the Father, he will testify on my behalf. You also are to testify because you have been with me from the beginning.

Amen.