Taking on the education system

Q. My son is a bright articulate, eleven year old who was retained in the second grade after the newly out of college school psychologist deemed he had no learning disabilities, four years later, he is going to flunk again, despite him recently being diagnosed with ADD [Attention Deficit Disorder], (April of this year), and our family going through a terrible trauma that has been ongoing since January, and not to mention the effects his asthma medication has on his attention span. I was told pretty much, that if I didn't like it too bad, he's being held back, period. End of story. In all of this time, never once was a multifactor evaluation offered, nor was I told of an IEP [Independent Education Program] program, or the fact that he has asthma entitles him to both an IEP, but a tutor paid for at the expense of the school. None of these things were offered or explained to me the past four years, my basic question is this, can I fight his retention and win? If so, what are the best measures for me to take? Can a school legally retain a child more than once in their grade school years? If it helps, I live in the state of Ohio. Thank you.

A. Your question takes us to the somewhat shadowy realm of administrative bureaucracies, of which the state Department of Education may be the most difficult to navigate. First, let me give you a little background to set the stage.

The education of our children is usually in the hands of local school Boards of Education. The members of these boards are the citizens in your community and are usually elected by the town in which they live. They work in conjunction with the Superintendent of your school system, who is roughly analogous to the “president” of the schools. The Board is somewhat similar to the “congress” of your schools. Between them, they set policy, make and enforce rules, and determine such things as curriculum, teachers benefits, budgets, after school programs and, of course, retention policies. If, for instance, the Board determines that it is fitting, in appropriate circumstances, to hold-back a child twice, three times, or even ten times, in his or her academic carreer, it is within its power to do so.

You appear to be aware (even though you state that no one at the school told you about it) that there are programs available for kids with special needs, such as independent education programs and counseling and evaluations for special needs kids. Each school board has its own policies and procedures on how and when to offer these various programs to parents, which are often based on or directed by state statutes and regulations.

You, as a parent, do have a responsibility to investigate these programs, request them from the school if you believe that they are appropriate for your child, and follow-up on your investigations to make sure that what you want for your child is made available to the child.

Local school boards have a great deal of power in administering their schools because the theory is that local boards are more familiar with, and thus better suited to address, the particular needs of their respective communities. This power is not unbridled, nor is it absolute. You can appeal decisions of local school boards. However, those decisions are often difficult to overturn.

Each state has its own appeals process for decisions made by local boards, so I cannot give you a definitive answer on precisely what to do. However, generally, your first step is to raise your concerns directly with the school. Start with the teacher, then go to the principal. Make certain that you document everything that happens by writing a self-serving letter to follow-up, something like, “Dear so-and-so, This will confirm our conversation on such-and-such a date about thus-and-so, after which you refused to do what I asked.” Don’t get personal in your letters; you should avoid using phrases like “you mealy-mouthed little worm,” even though the phrase may be accurate. Just stick to the facts. Keep a copy of your letters for your files, because you will need them later on in your appeals process to show what’s been done (or not been done).

If the principal doesn’t give you satisfaction, you would then bring your issue to the school board (usually at a school board meeting). From their, you would appeal to the state’s Department of Labor and, if you still don’t get satisfaction, most states provide for an appeal either to an administrative law judge or to the law courts (depending on your State’s rules for such things). Ordinarily, you have to take each step in the process to pursue an appeal before you can raise an issue in a court of law. It’s a concept in the law called “exhaustion of remedies,” which simply means that you have to take all of the steps available to you before you can assert a claim in court.

Sounds like a hassle, right? It is. Having raised a few issues with my own local school board, I can tell you that the wheels of justice in this area grind eternally slow, and satisfaction is often very long in coming. There are, in fact, law firms that concentrate on education law because it can be a very specialized and time-consuming field.

To win this kind of case, you need to have documentation from your doctors of your son’s condition. A written report with specific recommendations by the doctor is extremely helpful (and essentially a requirement) to have any hope of getting the school to help you out.

You should be able to take the first few steps yourself. Take your reports, diagnoses and concerns to the teacher, then the principal, then the school board. Be calm, be cool, and most importantly, be persistent. The adage “the squeky wheel gets the grease” is particularly apt when it comes to school boards. They tend to address the problems that are immediately before them and of which they are made constantly aware.

If the school board doesn’t see things your way, you should then seriously consider consulting with a lawyer familiar with the educational laws of your state. That attorney can better evaluate your case and your chance of success on the merits. Good luck.