Too often, “deference to educators” is a trigger phrase among parents of students with special education needs.
While there are educators who are of great worth, parents too often have sat in IEP meeting after IEP meeting, opposing educators whose lack of training, lack of experience, lack of empathy—and sometimes all three—are negatively impacting students. Add to this, educators who make a parent’s opposition personal, to the point they oppose everything a parent states, just to oppose it, with all focus on their egos rather than the needs of the child.
In the case of Virginia, this is supported in the December 14, 2020, report issued by the Joint Legislative and Audit Review Commission (JLARC), which focuses on special education in Virginia. Among the problems in Virginia is the reliance on provisionally-trained and/or substitute teachers who fill the special education positions for which the school divisions failed to hire highly-qualified educators,
“[I]n response to JLARC’s survey of special education directors, 57 percent of division-level directors estimated that half or fewer of all provisionally licensed special education teachers in their division have the necessary knowledge and skills to effectively serve students with disabilities (Figure 7-3). The research literature supports stakeholder concerns and shows that well-prepared teachers are more likely to be effective and less likely to leave their positions than their less prepared peers. . . .
Respondents to JLARC’s survey of local special education directors stated that long-term substitutes lack the “ability to complete certain essential functions such as IEP writing and case management” and that
hiring them “places an unqualified person in the position.”
In a recent due process hearing, Fairfax County Public School Teachers (FCPS) struggled to define FAPE. One provisionally-licensed teacher seemed confused when he was asked about FAPE. It was as if he’d never heard of it.
So, what happens when the school division counsel argues for deference to educators as part of his due process hearing final brief? Does deference have to be given to the very educators who have so often been the root of all the problems?
Decision Against Deference to the Educators
The following two quotes are from a decision made against giving deference to educators, which appears in Virginia Administrative Hearing Officer Ternon Galloway Lee’s decision for case 19-032.
Quote 1 (pages 26-27):
IDEA requires great deference to the views of the school system. However, the hearing officer as the fact-finder is not required to determine that an IEP is appropriate simply because the teacher or other educational professional testify that the plan is appropriate. Cnty. Sch. Bd. Of Henrico Cnty. v. Z.P., 399 F.3d 298, 307 (4th Cir. 2005). The Hearing Officer is required to determine as a factual mater whether the IEP is appropriate. Id.
In the case at bar, the educators have opined that the child’s IEP is appropriate. The Hearing Officer declines to give deference to this view. Clearly the educators’ opinion is contrary to controlling law which requires the IEP to address the unique circumstance of a child. Endrew F. v. Douglas County School District RE-1, 69 IDELR 174 (2017), 8 VAC 20-81-100(A)(1)(b).
As previously discussed in detail the IEP fails. The evidence shows that the IEP contains only one goal pertaining to Child’s speech. In addition, there are no services, accommodations or supports for any of Child’s circumstances, except his speech. Yet the facts show that Child has high risk medical factors. The evidence shows that Child was a candidate for retention in both the first and second grades. He is chronically absent from school which has resulted in loss of educational instruction. His academic success has been adversely impacted by the absences. Moreover, he is reading substantially below grade level. In addition, interventions employed to assist Child in accessing the general educational curriculum during the second grade were one-on-one instructions, read aloud, extended time on assignments, small group instruction in core areas, small group reading with the reading specialists. With implementation of these interventions, the evidence shows that Child is making progress, thereby assessing the general educational curriculum. None the less, none of these services, supports or accommodations are specified in the Child’s IEP. Accordingly, the Hearing Officer finds that the facts of this case fail to support the testimonies of school witnesses that the IEP is appropriate.
Quote 2 (page 28):
In the case at bar, the educators have opined that the child’s IEP is appropriate. The Hearing Officer declines to give deference to this view. Unequivocally, the educators’ opinion is contrary to controlling law which requires the IEP to address the unique circumstance of a child. Endrew F. v. Douglas County School District RE-1, 69 IDELR 174 (2017), 8 VAC 20-81-100(A)(1)(b).
As previously discussed in detail the IEP fails miserably. The evidence shows that the IEP contains only one goal pertaining to Child’s speech. In addition, there are no services, accommodations or supports for any of Child’s circumstances, except his speech. Yet the facts show that Child has high risk medical factors. The evidence shows that Child was a candidate for retention in both the first and second grades. He is chronically absent from school which has resulted in loss of educational instruction. He is impacted by having been a transient student. His academic success has been adversely impacted by the absences. Moreover, he is a third grader who is reading on first grade level. In addition, interventions employed to assist Child in accessing the general educational curriculum during the 2018-19 school year are one on one reading instruction from the Title 1 reading specialist for 4 days a week and 30 minutes each session. As of February 2019, he is receiving that service in a small group of two (2) students. In addition, his third grade classroom teacher provides him with one on one reading for 15 minutes 4 days a week. In math, Child receives small group instruction daily. Moreover, the class is taught by a Title 1 math specialist and the students have access to a tutor in the class. He is also receives small group instruction in math. With implementation of these interventions, the evidence shows that Child is making progress. However, more progress is noted when he attends school consistently. That said, the January 10, 2018 IEP does not contain the accommodations/supports mentioned immediately above. Nor does it address Child’s attendance issue. Accordingly, the Hearing Officer finds that the facts of this case fail to support the school’s claim that the IEP is appropriate.
The following two quotes are from a decision made against giving deference to educators, which appears in Virginia Administrative Hearing Officer Ternon Galloway Lee’s decision for case 20-064/20-069.
The hearing officer’s isn’t a straight cut and paste from her previous decision. Indeed, in this decision she discusses the weight she placed on witnesses and why she decided not to defer to the school division expert whom she opined to have “extensive experience”.
Quote 1 (pages 33-34):
To this point, the Hearing Officer gives great weight to the testimony of Eligibility, Special Education, Child Find and MDR Expert. The evidence shows she has extensive experience in participating in MDR meetings and eligibility meeting. Further, she has referred students to be evaluated for giftedness. She testified that the team warranted the psychologist and a gifted specialist at the meeting to discuss (i) intellectual testing results of student and (ii) the possible giftedness of Child, and (iii) how xxx giftedness may affect xxx behavior, and (iv) the unique needs of the gifted student. (Tr. 213-14).
In contrast, the Hearing Officer does not give deference to the school’s witnesses or experts. For example, Special Education Coordinator testified that Principal 2 was “not comfortable conducting an MDR meeting” and he called on her for guidance and direction. Yet, under her direction proper individuals were not at the meeting. The cumulative file was not there. Further, Special Education Coordinator and for that matter the other school witnesses lacked the extensive training of the parent’s expert whom I have found credible. That is, extensive training and experience in MDR meetings, special education, child find, and eligibility. That said, the Hearing Officer recognizes precedent in this federal judicial circuit, requiring that due deference be given to the opinion of the professional educators. See, e.g., County School Bd. Of Henrico County, Virginia v. Z.P. ex rel. R.P., I 399 f.3d 298, 313 (4th Cir. 2005). That deference is not absolute. The Hearing officer finds, the evidence of record provides sufficient reason for her to give little weight to the educators’ assessment for the reasons noted here regarding the wide-ranging problems with the MDR meeting. Without a doubt, the district violated 34 CFR §300.530 (e) and the violation was substantive in nature.
Quote 2 (pages 36-37):
The Hearing Office finds Eligibility Expert’s testimony credible and consistent with VDOE
guidance to LEAs. The Hearing Officer assigns great weight to her testimony. Hence, the Hearing Officer finds the eligibility team should have suspected Child as one with a disability and as a gifted student. Furthermore, in its deliberations the team should have considered whether the unique needs of this suspected twice-exceptional child warranted a referral for xxx to be evaluated for giftedness. This degree of deliberation was necessary because of xxx high cognition and to assist in meeting the needs the child may require such as a more rigorous or advanced curriculum due to xxx superior intellect.
That said, the Hearing Officer recognizes precedent in this federal judicial circuit, requiring that due deference be given to the opinion of the professional educators. See, e.g., County School Bd. Of Henrico County, Virginia v. Z.P. ex rel. R.P., I 399 f.3d 298, 313 (4th Cir. 2005). The Hearing officer finds, the evidence of record provides sufficient reason for her to give little weight to the educators’ opinion regarding this matter.
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