December 31, 2008

Throwing Down the Gauntlet for 2009

The picture shows an empty auditorium with white gloves on the floor. They were taken off by graduating policemen and thrown in the air in celebration. After the hoopla, everybody left, but the gloves remained, strewing the floor like so many gauntlets challenging the status quo. It is an empty challenge because it is merely symbolic. Nothing happened. No changes took place when they took off their gloves. That is not my goal in creating this website or in writing these blogs for the last two years. I want the auditorium so full we have to move to a bigger one and bring in food because nobody will leave. I want us to commit to bare knuckled labor and disciplined action in creating a special education that works for the present and future children who need it. I don’t want promises or speeches or symbolism. I want change, honesty and competence. In short, I want revolution in this tiny country of special education with its big IDEA.

A gauntlet was a medieval glove made of mail to protect the hand. It had a cuff-like extension for the wrist. When a challenge to a duel was made, the glove was thrown on the ground to the person being challenged, exposing the bare wrist. That exposure meant the knight was prepared to be hurt, but was so sure of himself and his skills that he would show his vulnerability in battle and expect to win- alone, 1-1, in a fight to the death. That is precisely where each of us is as we face the New Year.

Where is the focus of the fight in 2009? Nonlawyer representation. Why do I believe this?

1. The December 1, 2008 regulations on IDEA proved that nonlawyer representation is now the primary national focus of special education. What is a bit unnerving is that I know of no other nonlawyer, besides myself, who is/was actually litigating cases for parents during 2008. If it turns out that, unlikely though it seems, I am the only one still out there after all these years, then all of the activity surrounding this issue becomes even more inexplicable. The federal government has admitted never gathering any data on the number of nonlawyers or lawyers litigating special education cases. The only case, sited again and again on this subject, is mine. The fear factor of the nonlawyer issue on politicians and on the bar associations is evident. In a recent article for LRP Publications, reporter, Mark Sherman, interviewed a number of lawyers across the country about nonlawyer representation. Most were ambivalent or against it, always preferring lawyer representation for the benefit of the parent. As long as lawyers control who represents parents and what constitutes the unauthorized practice of law they will also control all of the special education agenda. There is no enforcement without the ability to have a due process hearing with competent representation. 2009 must be the year that the lies about equity and fairness in special education stop, and we get real about figuring out solutions to having both sides of the dispute represented with comparable vigor and skill. Only when that happens will schools begin to follow the legal requirements of IDEA and due process hearings decrease without sacrificing the needs of children and families.
2. The current crew of highly visible and well-known attorneys for parents are utterly and completely gutless. Worse, the work I have seen them turn out this year is abysmal. I’ve met with several of them on a variety of different issues and cases. I’ve consoled the parents they abandoned because they forgot to adequately prepare for oral argument before the Clerk told them to be in federal court that day. Or when they refused to include a legal argument the parent requested, and then lost the case on the very point they refused to include. This list could go on forever. I’ve known many of these attorneys for years, and even helped train a few. The present climate in which they work makes them settle nearly every case. They won’t take on corrupt, biased, or incompetent judges, and there are many of each. As one lawyer said to me this year, “We don’t shit where we eat.” Lawyers are in a closed club that will not or cannot monitor themselves, nor improve their skills when it comes to special education. They have become just another big business whose primary goal is to protect the business. As a result, there is no competition because they have created a monopoly. The only way to force the lawyers of this country to clean up their act is to provide an alternate source of services for parents. That alternative is nonlawyer representation.
3. Nonlawyer representation has never been differentiated from the notion of parent advocacy. That was and remains a fatal flaw in training programs, and in arguments about this issue. Training a nonlawyer to litigate a case is a very different training than teaching “advocacy” skills about participation in IEP meetings and assisting parents in mediation. I believe I know this better than anyone else because of developing and implementing the first parent training programs in the country in the late 1970s, and the only nonlawyer training programs in the country starting in the 1980s. They were very different programs, building very different skills. An advocate learns the law in a way that supports and guides the parents through a series of potential problems with the school district. It is not surgical and often highly subjective. Nonlawyers, however, lead the parent and make all legal decisions relative to case acceptance, preparation, and delivery. They are responsible for all arguments of law, development of material facts and preparation of witnesses. They must be objective and in command of both the facts and the controlling law at all times. They are the authorities on the case, not the parents. To my knowledge, I am the only person in the entire country who has ever taught these skills and observed my students work in a courtroom. Therefore, there is no end of amazement about lawyers and Congressmen discussing this without ever contacting me or asking me a single question! Such avoidance reflects the revolutionary and singular importance of the issue.

The Throw Down

So here we are. Gloves are on the floor. The room is empty. There is nobody to hear us. I’m going to be 70 this month, just a little old lady- nothing to worry about. I ease down the velvet glove with the high cuffs to the end of my fingertips. My wrist is bare, as the glove floats into the Internet haze and settles on the computer screen in front of you. Are you a lawyer who wants to prove that nonlawyers are really not competent and should not be permitted to represent parents in due process hearings? Are you a judge who wants to lay bare the foolishness of contemplating that a nonlawyer can be as good or better than a member of the bar? The timing is perfect. Name your spot and I’m there. For this is the issue of 2009.