Parents have the Right to be informed as to the Qualifications of a Teacher Assigned to deliver Special Education Instruction to their Child

Parents have the Right to be informed as to the Qualifications of a Teacher Assigned to deliver Special Education Instruction to their Child

The Right to Qualified Instructors: An Argument supporting a parents’ right to be informed as to the qualifications of a teacher to deliver individualized instruction

G. Emerson Dickman, J.D.
2001

The need and the right to be informed as to a teacher’s qualifications and training, beyond certification, is situation specific. In other words “staff training in resuscitation techniques and seizure protocol” has been found necessary to permit a pupil to benefit from special education instructions. Silsbee Indys. Sch. Dist., 25 IDELR 1023, 1026 (SEA, Texas, 1997). A child with a specific learning disability is also uniquely in need. In Essex Junction Sch. Dist., 22 IDELR 315 (SEA, Vermont, 1995) the Hearing Officer evaluated the training of the school district personnel in reaching his decision.

“The Hearing Officer listened to Dr. Moates at the hearing and read some of her past manuals on proper teaching for Dyslexics. The Hearing Officer was very impressed with the qualifications of teachers at Essex Junction. They did have the training in linguistics, language basis of reading and writing difficulties, theories of reading-writing instruction, etc.”

Essex Junction Sch. Dist, 22 IDELR at p. 327.

Dr. Moats provided information regarding instruction for Dyslexic students, to wit:

“The first essential component of an appropriate program listed in this handout is teacher qualifications. Dr. Moats states in this handout:

There are many published programs that can be used successfully, each with its strength and weaknesses, but these are only tools in the hands of a skilled teacher who must be able to depart from the program format when necessary.”

Essex Junction Sch. Dist., 22 IDELR at 324.

The New Jersey Administrative Code at NJAC 6A:14-1.3 defines the following terms:

“Individualized educational program’ (IEP) . . . describes . . . individually designed instructional activities . . .”

“Special education’ means specially designed instruction. . . .”

The issue before this court is whether parents are entitled to information regarding the teacher’s ability to deliver and implement the “individually” and “specially” designed instruction called for in the IEP. No allegation is being made that parents have the absolute right to explore every nook and cranny of the background of every teacher assigned to their child. History, English, Math, Science, etc. — state certification to teach would be presumptive evidence of ability. However, when “individually designed instructional activities” are identified in the IEP, parents are entitled to information concerning the teachers qualifications to implement or deliver such program.

The Hearing Officer in Gwinnett County Sch. Sys., 4 ECLPR ¶ 98, 419 (SEA GEORGIA, 1999) related the parents right to know to the need for informed parental consent:

“in more than a few instances, that GCSD failed to provide Reece B.s parents with answers to the questions that they asked.

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The parents were not able to access the information that they needed to make an informed decision and could not, therefore, give their “informed consent.”

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IDEA places emphasis on the need for informed parental consent.” 34 C.F.R. § 300.500(a)(1-3).

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Parents of a child with disabilities are at a disadvantage when they first enter into the IEP process. They are not supposed to possess the expertise of educational professionals. See: S-1 v. Turlington, 635 F.2d 346. IDEA considers parental participation to be of paramount importance, and 34 C.F.R. § 300.345(e) states: “The public agency shall take whatever action is necessary to ensure that the parent understands the proceedings at a meeting. . . ”

Gwinnett County Sch Sys. 4 ECLPR at 429.

Providing information to parents is not equivalent to giving parents the right to choose a particular method or a particular teacher. If the method provided by the school district is appropriate and the training of the instructor is appropriate the parents have no right to insist on an alternate method or teacher, even if the alternate method or teacher may be considered better. However, if the method or teacher appears to be inappropriate to the parent, the school district has the burden to support its recommendations.

Furthermore, both the parents and the district have an interest in assuring that a handicapped child receives an appropriate education. In that setting, the adversary nature of the proceedings should yield to obtaining the right result for the handicapped child. Thus, the distinction between the burden of proof and the burden of production may be less critical than it would be in another context. To conclude, we believe the obligation of parents at the due-process hearing should be merely to place in issue the appropriateness of the IEP. The school board should then bear the burden of proving that the IEP was appropriate.

Lascari v. Ramapo Indian Hills Sch. Dist., 116 N.J. 30, 46 (1989).

If the school district does not have to disclose the training of the instructor, it is never faced with the burden of supporting the appropriateness of its choice.

Is state certification, once given to a teacher, irrefutable proof of a teacher’s ability to implement “specially designed instruction”? NJAC 6A:14-1.3. According to Congress, the answer is “no.” According to research, the answer is “no.” According to teachers (organizations and unions), the answer is “no.” The respondent, Kearney Board of Education, and the Administrative Law Judge below maintain that the parents have no “right to know whether the teacher is capable of implementing the program recommended in the IEP” (Decision below at p. 7). If, as the school district contends, parents do not have the “right to know whether the teacher is capable of implementing the program recommended in the IEP” then:

  • the parental involvement upon which IDEA relies (Heldmaninfra, 962 F.2d at 155) is a fiction,
  • the mandate of the Lascari Court that the IEP be capable of “being evaluated for appropriateness” (Lascari, 116 N.J. at 48) is overturned, and
  • the will of Congress to promote “proven methods of teaching and learning” (20 USC §1400(c)(4)) is thwarted.

In Hendrick Hudson District Bd of Ed. v. Rowley, 458 U.S. 176 (1982) the Supreme Court directed that “courts must be careful to avoid imposing their view of preferable education methods upon the states.” Rowley, 458 U.S. at 207.

In Evans v. The Bd. of Educ. of the Rhinebeck Central School Dist., 24 IDELR 338 (S.D.N.Y. 1996) U.S. Dist. Court Southern Dist. of NY, 1996) the court distinguished its finding from the Rowley directive by holding that the facts demonstrated “that an integrated, multi-sensory, sequential method is a necessity rather than an optimum situation.” Evans at 348.

The Evans Court in 1996 anticipated the findings of Congress contained in the most recent reauthorization of the Individuals with Disabilities Education Act (IDEA) 20 U.S.C. §1400 et seq., to wit: “the implementation of this Act has been impeded by low expectations and an insufficient focus on applying replicable research on proven methods of teaching and learning for children with disabilities.” 20 U.S.C. 1400(C)(4).

Clearly, if parents are not aware of the methods the school district intends to employ to address a specific weakness, such as learning to read, and the ability of the instructor to employ such methods, the parents lack the ability to participate in the planning process and to evaluate the results of such process for appropriateness.

PARENTS ROLE ON THE INDIVIDUALIZED EDUCATION PROGRAM TEAM.

The law clearly recognizes the right and the need of parents to participate, consult, be a part of, cooperate, and collaborate in the process of determining an appropriate education for their child.

“(B) Individualized education program team

The term ‘individualized education program team’ or ‘IEP Team’ means a group of individuals composed of

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(i) the parents of a child with a disability;” (IDEA § 614(d)(l)).

Under IDEA (20 U.S.C. S1400 et seq.) the opportunity for parents to provide input into the process of developing an appropriate education for their child is deemed of utmost importance.

“A local education agency . . . shall –

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(c) establish a goal of providing full educational opportunities to all handicapped children, including –

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(iii) the participation and consultation of the parents or guardian of such children; . . . ”

20 USC § 1414 (a).

The Federal Regulations require that the “public agency ensure” that parents are participants (34 CFR §300.344) and that parents participate (34 CFR §300.345).

“IDEA created an arena in which a committee composed of special education experts, teachers, and parents could cooperatively determine what constitutes an appropriate education for each disabled child.

Congress in lieu of uniform substantive standards sought to protect the interests of the child by providing for parental participation in the process of charting an appropriate education for their child. §§ 1400(c), 1401(a)(19), 1412(7), 1415; see also Honig v. Doe, 484 U.S. 305, 310-12 (1988); Board of Educ. v. Rowley, 458 U.S. 176, 205-06, 208-09 (1982).”

Heldman v. Sobol 18 IDELR 915, 916 (2nd Cir. 1992).

“The need to promote cooperative efforts between parents and the public schools serving their handicapped children is recognized throughout the statutory scheme of IDEA.”

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“New Jersey regulations . . . further promote disclosure and cooperation between parent and school district.”

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“Congress addressed the problem of how to guarantee substantive rights to a diverse group by relying on a process-based solution.’ Helman, 962 F.2d at 155.‘The Act relies on parental involvement to contribute to the determination of what constitutes an appropriate education for a child.’ Id.”

D.B. Ocean Twp. Bd of Educ. 27 IDELR 151 at 191, 192 (D.N.J. 1997) emphasis added.

The American Heritage Dictionary (College Edition, 1991) defines cooperate, collaborate, participate, and consult as follows:

Cooperate: 1. to work together toward a common end or purpose.

Collaborate: 1. to work together, esp. in a joint intellectual effort.

Participate: 1. to take part; join or share with others.

Consult: 1. to seek advice or information of – to exchange views.

It is impossible to collaborate, cooperate, participate, or consult in an environment where others involved in the process refuse to share the information upon which their decisions are based. Such collaboration is, as the saying goes, like the “sound of one hand clapping.” No matter how hard that hand thrashes about (and it trashes more and more as its efforts prove repeatedly futile) there is no sound, there is no conclusion, and there is no closure.

FEDERAL AND STATE REQUIREMENTS FOR STAFF DEVELOPMENT.

“The Congress finds the following: (20 USC § 1400(c)):

. . . the implementation of this Act has been impeded by . . . an insufficient focus on applying replicable research on proven methods of teaching and learning… [(20 USC §1400(c)(4))] Over 20 years of research and experience has demonstrated that the education of children can be made more effective by–… [(20 USC §1400(c)(5)](E))supporting high-quality, intensive professional development for all personnel who work with such children in order to ensure that they have the skills and knowledge necessary to enable them — [(20 USC §1400(c)(5)(E)] (I) to meet developmental goals … [(20 USC §1412(a)(E)(I))]”

In order to be eligible for IDEA Part B funding, a State must demonstrate that it has

“a comprehensive system of personnel development that is designed to ensure an adequate supply of qualified special education . . . personnel that meets the requirements . . . relating to personnel development in subsection (b)(2)(B) and (c)(3)(D) of Sec. 1453.” [20 USC §1412(a)(14)].

Sec. 1453(c)(3)(D), in turn, requires that a:

“State improvement plan shall — … (3) describe the strategies the State will use . . . including — . . . (D) how the State will address the identified needs for in-service and pre-service preparation to ensure that all personnel who work with children with disabilities . . . have the skills and knowledge necessary to meet the needs of children with disabilities, including a description of how — . . . (vii) the state will acquire and disseminate, to teachers … significant knowledge derived from educational research . . . and how the State will, when appropriate, adopt promising practices . . .” [20 USC §1453(c)(3)(D)(vii)].

The National Joint Committee on Learning Disabilities (NJCLD) in its 1999 position paper on Professional Development for Teachers has stated that:

“Today professional development must include high-quality, ongoing training that reflects a variety of approaches, with intensive follow-up and support. NJCLD strongly believes that professional development is an ongoing process of continuous improvement, not an event.

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The very culture of the school must support continuous inquiry and reflection on the implementation and development of best practices.

The New Jersey Administrative Code (NJAC) codifies the spirit, intent, and mandates of the Act.

“Each district board of education shall have policies, procedures and programs in effect to insure the following: . . . 13. The in-service training needs for professional . . . staff who provide special education . . . are identified and that appropriate in-service training is provided. . . .” NJAC 6A:14-1.2(b)13.

The comprehensive system of personnel development (CSPD) is a federal and state mandate that recognizes the need for special education personnel that are qualified to meet the needs of children with disabilities. The law specifically addresses in-service (post certification) as well as pre-service preparation. In other words, the CSPD requirement in both federal and state law recognizes that certification is not enough to protect the needs of children with disabilities.

If parents are not permitted access to information relating to mandated personnel development, it would be like posting speed limits on roads with no police presence.

THE IEP IS REQUIRED TO INCLUDE “A STATEMENT OF PROGRAM MODIFICATIONS OR SUPPORTS FOR SCHOOL PERSONNEL THAT WILL BE PROVIDED FOR THE CHILD. . . “

The practical implication of Congress’ focus on replicable research and promising practices is reflected in changes to the IEP process contained in the reauthorized version of IDEA effective July 1, 1998. (1) The IEP Team must include “an individual who can interpret the instructional implications of evaluation results. . . .” [20 USC § 1414(d)1(B)(v)]. (2) The IEP must include “a statement of the program modifications or supports for school personnel that will be provided for the child — (1) to advance appropriately toward attaining annual goals; . . .” [20 USC §1414(d)(1)(A)(iii), emphasis added].

The NJAC tracts the federal requirements:

“Meetings to develop or review the IEP . . . shall include the following participants: . . . iv. At least one child study team member who can interpret the instructional implications of evaluation results; . . .” NJAC 6A:14-2.3(I)2.iv.

“… the IEP shall include, . . . 3. A statement… of the program modifications or supports that shall be provided for school personnel on behalf of the student…” NJAC 6A:14-3.7(d)3.

A parent cannot help to determine (as part of the IEP team) what supports should be provided “for school personnel on behalf of the child, if they are not permitted information as to the qualifications of the personnel involved. Without such information parents cannot evaluate the efficacy of the supports identified or, therefore, the “appropriateness” of the IEP (Lascari, 116 N.J. at 48).

A PARENT HAS THE RIGHT TO INSIST THAT THE DISTRICT USE “PROVEN METHODS OF TEACHING AND LEARNING,” BUT MAY NOT CHOOSE AMONG SUCH METHODS WHICH ONE THE DISTRICT MUST EMPLOY.

A poor analogy might be that parents would naturally rely on their child’s physician to choose what antibiotic to employ to fight a severe bacterial infection, but would question the physician’s decision to subject their child to bloodletting. In a similar fashion a school district may identify a particular method not only in response to the needs of the child, but also considering the availability of resources and the training of personnel. The decision of the district, if the method employed confers an educational benefit, is not subject to being overruled or successfully challenged by the parent. The parent, however, is entitled to sufficient information to judge whether the program offered is “reasonably calculated to enable the child to receive educational benefits” (Rowley, 458 U.S. at 206). In other words, are they being offered antibiotics or bloodletting.

FEDERALLY FUNDED RESEARCH AS WELL AS MANY NATIONAL READING AND EDUCATIONAL ORGANIZATIONS ARE IN AGREEMENT AS TO THE NEED FOR TEACHER’S TO HAVE CURRENT KNOWLEDGE IN ORDER FOR THE CHILDREN THEY TEACH TO RECEIVE A MEANINGFUL EDUCATIONAL BENEFIT.

“One factor that impedes effective instruction with children at risk for reading failure is current teacher preparation practices. Many teachers have not had the opportunity to develop basic knowledge about the structure of the English language, reading development, and the nature of reading difficulties.”

“The amount of course work in the structure of spoken and written language required by teacher preparation programs and state certification standards are woefully inadequate for the demands of classroom life, particularly classrooms with low-readiness children and diverse range of learners. In the final article in the series that follows, Louisa Cook Moats reports on a survey she conducted of experienced teachers to assess their knowledge of the structure of spoken and written language. Moats found “pervasive conceptual weaknesses in the very skills that are needed for direct, language-focused reading instruction.”

“It is thus easy to see why teachers may obtain certification without acquiring knowledge of the language content and processes critical to reading and spelling acquisition.”

“Teachers need to be knowledgeable about the research foundations of reading.”

“Every teacher who currently teaches reading would benefit from high quality education about reading development, language structure, and recent research findings. Validated instructional programs should be accessible to every teacher, along with consultation and demonstration of their effective use. Teachers need ongoing professional development that has topical continuity, practical application, and opportunities for collaboration with peers.”

“[M]ost teachers are not being given the content and depth of training needed to enable them to provide appropriate instruction.”

CONCLUSION

Do parents have the right to inquire as to the qualifications and training of a teacher assigned to deliver special education services to their child? Do parents have the right to inquire as to whether such teacher has the “skills and knowledge necessary to enable [him/her] . . . to meet [their child’s] developmental goals”? (20 USC § 1400(c)(5)(E)(I)).

* The New Jersey Supreme Court in Lascari v. Ramapo Indian Hills, 116 N.J. 30, 49 (1989) indicated that “[A]n IEP that is incapable of review denies parents the opportunity to help shape their child’s education and hinders their ability to assure that their child will receive the education to which he or she is entitled.”
* Federal and State law requires that the IEP include “a statement of the program modifications or supports for school personnel. . . to advance appropriately toward attaining annual goals” (20 USC § 1414(d)(I)(A)(iii); NJAC 6A:14-3.7(d)3).
* Congress, researchers, teacher’s associations, and a multitude of educational and learning disabilities organizations all agree that continuing professional development is essential to ensure that teachers have the skills and knowledge necessary to meet the needs of children with disabilities.

Unless parents have knowledge as to the teacher’s qualifications and training they cannot form an opinion as to the ability of the teacher to meet the needs of their child, they cannot participate in the determination of what program modifications or supports the teacher may need to “advance appropriately toward attaining annual goals”, and the IEP is, thereby, incapable of being evaluated for appropriateness.” (Lascarisupra at 48). Parents have the right to be informed as to the qualifications of a teacher assigned to deliver special education instruction to their child.

Note: Since this article was written OSEP has provided clarification on the issue of a parent’s right to know the qualifications of the chosen instructor.