Effective Advocacy: Perspective is the Key!
G. Emerson Dickman, J.D.
Too often advocacy is seen as a contest — parents versus the system. The primary goal of an advocate should be to develop an atmosphere of collaboration and open communication between the family and the school district. The purpose of an advocate is to inform and educate rather than to intimidate and litigate.
Due process should be treated as a last resort. Once due process is initiated, additional issues are introduced, including the possibility of significant legal costs and the unfortunate battle of egos among the participants. The cause of the dispute, providing an appropriate education for the child, may become diluted when battle lines are drawn and the focus changes to winning as compared to doing what’s right. The initiation of due process concedes if not total, at least substantial failure of the efforts of the advocate to communicate effectively.
An effective advocate treats every educator as a lifetime learner whose profession was chosen because of his or her love of children and teaching. Such professionals should be given the courtesy and deference that this dedication deserves by providing a rationale for any request that is made.
In order to determine what constitutes an “appropriate” education, advocates must focus on the needs of the child rather than the limitations of the school district.
The Supreme Court of the State of New Jersey has held that “The adversary nature of [due process] should yield to obtaining the right result for the child.” This perspective makes special education advocacy unique. The party with the greatest understanding of what will help the child is going to prevail; in other words, knowing the child is more important than knowing the law.
PROFILE, PROGRAM, AND PLACEMENT
The best way to approach the development of an appropriate educational plan is to adhere to the three “P’s” of advocacy: Profile, Program, and Placement.
First, the learning profile of the child is developed through evaluations, interviews, and observations. Each child’s learning profile is unique. The program developed for the child, the Individualized Education Program (IEP), must conform to the strengths and weaknesses of this profile. Thereafter, an educational placement is determined based on the least restrictive environment capable of implementing the program determined by the profile. In a broad sense, the three “P’s” of advocacy is to provide a scaffold for the advocate to apply their knowledge and to formulate a strategy for obtaining proper educational services, support, and accommodations
THE INDIVIDUALS WITH DISABILITIES EDUCATION ACT (IDEA)
IDEA is based on a very basic premise: every child has the right to a free and appropriate public education (FAPE). The problem with this concept is that what is educationally “appropriate” for one child, may not be “appropriate” for another child. The courts have determined that “appropriate” means that the child must be able to benefit from the educational opportunities provided.
So now the debate centers on what is meant by the word “benefit.” Many believe that the “benefit” must be achieved within the area of the child’s deficit. For example, a child with dyslexia may not be receiving a “benefit” if he is provided access to content knowledge and not taught to read. Such a child could learn about social studies or science by listening to tapes, watching videos, and obtaining tutorial assistance, but he would not be achieving any help (and would therefore not benefit) in the area of his identified deficit.
It is reasonably well accepted that the “benefit” must not be trivial and must provide opportunities for more than minimal growth; educational benefit in the child’s area of deficit must be “meaningful.” Of course, by doing this, yet another subjective term has simply been added to the long chain of subjective terms (“appropriate,” “benefit,” “meaningful”). To avoid getting lost in these terms, advocates must provide a logical and cohesive rationale to support specific goals, and efforts must focus on gathering facts (understanding the child) and championing what is right for the child.
WHAT IS A LEARNING DISABILITY?
In order to understand a child with a learning disability, one must understand learning disabilities. One description of learning disability, crafted by Sally Shaywitz, M.D. of Yale University, is that “a learning disability is a weakness in a sea of strengths.” It is the unexpectedness of a relative weakness that often defines a learning disability. A learning disability should not be defined by a discrepancy between aptitude and achievement or any other measure comparing achievement to other children of equivalent IQ. Failure is not an inevitable result of learning disabilities. However, it should be understood that without knowledge about LD and appropriate intervention, these unexpected weaknesses can lead to unreasonable expectations that, in turn, result in a failure-oriented environment.
Although there are many combinations of unexpected weaknesses, there are certain subtypes of learning disabilities that are sufficiently common to have received broad recognition, for instance:
An individual with an Executive Function Deficit has difficulty: initiating, organizing, planning, self regulating, maintaining attention, inhibiting behavior, and exhibiting an ability not only to attend to the present, but also to the future as well as an ability even to prepare for action (intention).
Individuals with Attention/Deficit/Hyperactivity Disorder often have difficulty paying close attention to details, sustaining attention, listening effectively, following instructions, organizing, and sustaining focused mental effort. They may also be easily distracted, be forgetful, fidget and squirm, have difficulty staying in one place, run or climb excessively, have difficulty playing quietly, have difficulty waiting their turn in conversations or games, and blurt out responses impulsively.
Individuals with Nonverbal Learning Disabilities (NLD) are not, as the name may imply, “nonverbal.” In fact, they often have excellent expressive language skills — they talk easily and often. Their most obvious difficulties often lie in processing nonverbal cues, such as: body language, facial expression, gesture, tone of voice and figurative language (e.g., sarcasm, inference, innuendo, hyperbole). People with NLD may also display unusual problems with anticipating, problem solving, formulating concepts, following directions, and generalizing learning from past experiences.
Dyslexia accounts for about 80% of all learning disabilities and is the most easily recognized and best understood of all learning disabilities. Dyslexia involves difficulties processing oral and written language, as well as difficulties attending to auditory stimulation. An individual with dyslexia may have deficits in phonological processing, difficulties with word decoding, and problems in reading, writing, and spelling. Individuals with dyslexia often show relative strengths in perceptual abilities, visual-spatial skills, and math concepts (as opposed to arithmetic calculation and language-based problem solving).
Every child is unique; one-of-a-kind. Fortunately, however, children are not so unique that we cannot understand and meet their individual learning needs. It is the advocate’s job to educate and inform concerning the specific needs of a child.
Knowing the child is as important as knowing the law. The ability to describe a child’s profile and to be able to advocate for a particular program and placement based on that profile is the key to obtaining what is appropriate under the law.
Editor’s Note: Emerson Dickman, J.D. is a New Jersey-based attorney who specializes in advocacy for individuals with learning disabilities. He is also a member of the National Center for Learning Disabilities’ Professional Advisory Board.