I have always been fascinated with advocates. People who are so dedicated to supporting a cause or correcting an injustice that they work tirelessly for it. While there are many ways to make positive change, advocacy seems like a surefire one.
In high school, I started working with Project HEAL (Health, Education, Advocacy, and Law), a medical-legal partnership in Baltimore serving children with disabilities. Project HEAL is staffed by a small, yet powerful group of talented women, who advocate for appropriate educational programs and placements for the hundreds of families they serve each year. The Project HEAL attorneys took me under their wings and encouraged me to pursue my passion for advocacy into college. As I learned more about the program, I was surprised to discover that this team of lawyers never goes to hearings.
Confused, I asked one of the staff attorneys, who explained to me that in many special education disputes, parents and school systems prefer to resolve their issues outside of due process hearing proceedings. Without hearings and decisions, the process can be more collaborative, cost less money, and foster a better relationship between the school system and family going forward. But there’s another more discouraging reason why parents and attorneys don’t want to pursue due process hearings: if they do, they’ll probably lose.
In the last fiscal year, only 20 special education cases in Maryland made it to a due process hearing. Parents lost 19 of them. This is not, by any means, a recent trend. In fiscal years 2016, 2017, and 2018, parents lost 86%, 95%, and 81% of cases respectively. Time and time again, Maryland administrative law judges (ALJs) decided against parents and in favor of local educational agencies.
The numbers are even more foreboding for pro se cases, or cases in which the parents advocate for themselves in court, without the assistance of an attorney. In the last six years, there have been 44 pro se cases heard in Maryland’s Office of Administrative Hearings. And the number of victories? Zero. Not once has an ALJ ruled in favor of a parent who proceeded without an attorney.
Parents, advocates, and attorneys, like the Project HEAL attorneys, know that their work is an uphill battle. But the data indicate that they don’t even stand a chance. Through my work at Project HEAL, I have learned how a child’s educational program and placement is directly contingent on their entitlements under federal law. Special education laws about individualized education programs, placements, accommodations, and discipline all dictate children’s day-to-day experiences and whether they are able to progress academically. During the coronavirus pandemic, educational shortfalls for children with disabilities have only been exacerbated. As school districts adjust to distance learning and hybrid models, many students with disabilities have been left without the resources they need, including basic access to Internet and special education and related services during remote learning. When the laws fail children, parents have a basic right to advocate on their behalf. ALJs have a responsibility to listen.
Project HEAL has undertaken several initiatives to correct the overwhelming disparity in due process outcomes. For more than six years, Project HEAL attorneys and trainees have analyzed due process hearing decisions in special education matters and shared those data with parents, advocates, attorneys, and the community. They have also advocated for and led training for ALJs about the needs and perspectives of children with disabilities and their families. Because special education cases are relatively infrequent, ALJs may not be fully informed about the clinical diagnoses, assessments, or recommendations by healthcare professionals. Helping ALJs understand how children with disabilities require unique services and supports will hopefully give families a fighting chance in these proceedings. In March, Project HEAL helped secure three neuropsychologists for a training on neurological assessments, and also helped facilitate a training in cultural and linguistic competency from the Georgetown UCEDD, Dr. Tawara Goode and her colleagues.
On the legislative front, Project HEAL has actively supported HB 184, a bill that was pending in the Maryland General Assembly. HB184 would have allowed parents who prevail in a special education matter to recoup attorney and expert witness fees. Given the impossibility of winning a case pro se, many parents raising children with disabilities incur enormous costs to hire an attorney. These fees are in addition to the obtrusive costs of expert witnesses, transportation to and from hearings, missed work, and childcare costs. HB 184 would have had a significant impact in breaking down financial barriers that prevent parents from advocating for their children’s needs. Due to the shortened legislative session as a result of the coronavirus, the bill did not pass this year. However, Project HEAL attorneys and other special education advocates will continue to pursue this equitable change in the law.
As we approach the 45th anniversary of the landmark Education for All Handicapped Children Act, we must remember all of the fearless advocates, many of them parents, who have spearheaded change in the past. Project HEAL attorneys champion the qualities of effective advocates: they are relentless in their mission to speak up for the rights of children with disabilities. But even the most persuasive advocates rely on the open-mindedness of society for change. I hope that as time passes, ALJs will deepen their perspectives and do their part in affecting that change.