Most people have read the quotation, “History is written by the victors.” In special education law, victory is often achieved by the best historians. Obtaining, keeping, and organizing your child’s educational records for an IEP might be the single most important variable for your chances of a positive outcome in the event of a disagreement with your child’s school district.
Almost any special education attorney will begin your intake interview by asking for your educational records, and, should you be forced to press your child’s claims through a due process hearing, the majority of evidence bound up in heavy volumes that are ultimately presented to the judge will be made up of those same educational records. In fact, that’s a good way to think about your educational records during any phase of a special education dispute: EVIDENCE. With this in mind, follow the few simple tips below to maximize the utility of these building blocks of special education law and organizing your student’s educational records for an IEP.
Do Not Rely on the School District to Keep Complete Special Education Records: School districts are required by federal laws such as FERPA (Family Education Rights and Privacy Act) and IDEA (Individuals with Disabilities Education Act) to keep educational records, and to make these records available to parents upon request. However, the increasing volume of records coupled with the growing ubiquity of digital or “cloud” storage has resulted in many Districts computerizing student’s educational files. While there are several obvious advantages to the digitalization of student records (conservation of storage space, environmental concerns, ease of transfer, etc.), one major drawback is that not every document which might be considered an “educational record” will find its way from the physical file to the hard drive.
Documents like IEPs, report cards, and District-provided evaluations tend to make the transition to digital format, while documents that are less easily scannable (e.g. student work samples) or documents which were not generated on a computer to begin with (e.g. teacher or service provider notes) can get lost in the shuffle. All of which is to say that documents containing valuable information about your student’s day-to-day performance and progress may not be among the records provided by a District subject to a FERPA or IDEA records request. This leads us to our next tip . . .
Cultivate Healthy Relationships With Your Student’s Teacher or Service Provider: Parents naturally consider issues surrounding their student’s education to be both important and personal, and when disagreements arise relationships can quickly turn contentious. That said, teachers, aides and service providers can be the most valuable sources of the sorts information and records missing from sanitized District educational files. Periodic progress reports (even monthly or bi-monthly) from those on the front line can go a long way toward filling the gaps between annual or triennial data collection like IEPs and formal assessments. Get these records yourself. Keep them. The contrast between your set of records and those maintained by the District can make all the difference.
Organizing Your Records Is Almost as Important as Having Them in the First Place: If you’ve followed the above two tips, you’ll almost certainly have a voluminous set of records for your student. When parents have thousands, or even tens of thousands of pages of documents, it will be difficult for anyone – even your lawyer, or, more importantly, a judge – to distill from this record all of the subtlety and detail that you, the parent, understand simply by being a first-hand observer. Anything that you can do to begin to isolate the issues and tell the story of your student will begin to define the trajectory of your case. In organizing your records, be attuned to a couple of focal points.
1.) Chronological organization works for everyone. There may be better and more intuitive ways to organize your educational records than chronological order, but we won’t know that until we’ve read them all. Organizing records chronologically makes their initial presentation more cohesive to advocates and attorneys. Like most things that appeal to people immediately, it’s just the simplest way.
2.) Think concretely. Dealing with educational issues on a daily basis can grind anyone down. It’s easy to get caught up in the day-to-day slights and mistakes that seem most offensive at the time they occur. However, these things in isolation often do not amount to legal claims. Keep in mind that addressing your student’s educational needs is the District’s obligation, and proving concrete and specific ways in which the District failed to address those needs over time is how parents prevail in due process matters. This is best shown by demonstrating lack of progress or a persistent area of weakness for your student, not by what happened in a classroom on any given day.
Summaries are an Invaluable Tool: Remember that history may be written by the victors, but victory goes to the best historians. No one knows the story of your student better than you, and educational records are your best tool to tell that story. Challenge yourself to summarize your student’s educational records at least annually with a one-to-two page document that outlines the concrete issues that have arisen over the year and the remedies you believe may address those issues. If you can master your evidence, your advocate or attorney will have a running start in mastering it too. Take a hand in writing your student’s history.
Valerie Vanaman graduated from the Ohio State University College of Law in 1967. After law school, Valerie worked in legal services for several years and received from the National Legal Aid and Defenders Association the Reginald Heber Smith Award for Dedicated Service. In 1980, Valerie founded with Joel S. Aaronson the Law Firm of Newman.Aaronson.Vanaman and through that Law Firm carried on her work begun at the Children’s Defense Fund in developing the practice of special education law. Since opening Newman.Aaronson.Vanaman, Valerie has been a tireless advocate for students and the parents of students with disabilities and educational needs, and a preeminent authority on the field of special education law. She can be reached at: 818-990-7722 or visit her website at: www.navlaw.net