Due Process and Parental RIghts

6 June 2016

Due Process and Parental Rights 2

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One court case that addressed parental rights and due process is Zachary Deal v. Hamilton Board of Education (6th Circuit 2004). This case involved a three year old little boy and his parents, Maureen and Phillip Deal. Zachary Deal began preschool comprehensive development class at Ooltewah Elementary School. In September of 1997 while he was attending preschool, his parents chose to begin teaching him at home using a program developed by the Center for Autism and Related Disorders or CARD (United States Court of Appeals, 2009).This program used one-on-one applied behavioral analysis or “ABA.” On May 11, 1998 the Deals met with an IEP team to determine ESY or extended school year.

The told the IEP team about Zachary’s progress using the CARD program at home and they wanted Zachary to receive a school system funded home based ABA program for forty hours per week, as well as, speech therapy. The IEP team agreed on speech for three days a weeks. The Deals had a few other IEP meetings over the following year. During the year of 1998-1999 Zachary attended public schools sixteen percent of the time. When they reconvened in May 1999 to discuss ESY for the summer, the school refused to grant the Deals their request of the school funded ABA program again. They stated that because of his infrequent attendance they could not document any regression without the ABA program.

Zachary attended a private preschool for the 1999-2000 school year and did not attend public school at all. For the 2000-2001 school year, Zachary did attend public school, but only part time. Throughout this time, the Deals continued to request at all IEP meetings that the school system provide Zachary with system funded private ABA. Each time this request was denied. In September of 1999 the Deals requested a due process hearing under the provisions of the IDEA. (United States Court of
Appeals, 2009). Zachary’s parents felt that he was not receiving a FAPE and they were not willing to give up without fighting for what they felt was the best education possible for their son. The main disagreement that the Deals had with the Hamilton County Board of Education Due Process and Parental Rights 3

was they wanted Zachary to attend school in the LRE and for him to receive school funded private ABA or another form of ABA therapy. The school board was accused of predetermining not to offer Zachary ABA on any level, regardless of how beneficial it was which violated IDEA (United States Court of Appeals, 2009). Additionally, Zachary’s parents were not fully involved in the IEP process which deprived Zachary a FAPE. At one IEP meeting Zachary’s parents were informed that they were not allowed to ask any question which goes completely against parental rights (County Schools, 2005). The IEP meetings also failed to have a general education teacher present.

The Deals began their administrative hearing in March of 2000. In October of 2001 they initiated a review of portions of the ALJ’s decision in district court. Finally in December of 2004 the courts decided a verdict. The decision had been made to reimburse the Deals’s with the money they had spent on private ABA and related services (United States Court of Appeals, 2009). Sadly, it took years in court and an estimated 2,2850,000 to defend a relatively small reimbursement claim (County Schools, 2005).

I find this court case to be pretty confusing. There are many different variables and angles which you can take. I agree with the ruling for a number of reasons, however, I also feel that the parents were not fully cooperating like they could have to achieve the best results possible. In the one article I read it actually addresses how many could “think” that the school district is the victim, but in all actuality if you read the full court transcripts you will see that is simply not the case. The article was written by the Deal’s attorney so it is biased, but it makes some very good points.

I am not quite sure how to draw the line in how much should be expected from the school system and at what point a family is demanding too much. Obviously I am not the only one who thinks this is confusing or there would be more concrete federal laws. On one hand I feel that the most important thing to keep in mind is parental rights. Who else is going to fight for a child like their own parents? If parents are denied proper notification, proper time to plan to attend the meeting, supply the materials in the native Due Process and Parental Rights 4

language and/or supply a translator, the school district is violating IDEA and there should be consequences. This I feel is more of a black and white issue so there is not as much room for confusion. I think it is when it comes down to issues such as LRE and additional programs/ services that it goes more in to a gray area. This is when parents have to turn to due process. I assumed that many school districts give in at this point to keep from incurring court cost and media attention. After reading this case, I am not sure that my logic is correct. Clearly in the case of the Deals the school showed no interest to hear their side of the story or take in to consideration Zachary’s progress with his at home ABA therapy.

A school cannot discredit a parents opinion and do as they please, but when a child is rarely attending the program, can the school be responsible for paying for private therapy for a child they know little about? It is a catch twenty two in my opinion. The parents do not want to send they child to a school where they will regress and the school does not feel responsible for giving out additional funding and services for a student they have little data on. Someone has to give somewhere. The bottom line is there are always going to be situations that are difficult to know who is right and what placement will be right for a student to be truly successful. I think that a family does not always have their own child’s best interest at heart and pushes to help them receive social security benefits, etc.

This is a truly sad situation and one that I hope is a rare occurrence. Some parents struggle with denial and push for services that the child cannot truly benefit from just so they feel more “normal.” My heart breaks in these instances, but we somehow must help a parent understand that their child’s future might look a little differently than planned. Lastly, we must all try to have the student’s best interest at heart and not think of what will be the easiest or the cheapest, etc. Working together with the parents of special needs children should be a team effort. No matter how demanding and difficult a family is, we as special education teachers must try to find a middle ground so that a case like this does not present itself again. Due Process and Parental Rights 5

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