May 20, 2019

MOTHER WHO KEEPS WITHDRAWING HER AUTISTIC CHILD FROM SCHOOL GETS UPSET THAT THE CHILD ISN’T IN SCHOOL: If you want a window onto the complicated, over-lawyered world of special education, this article is worth a look. It’s not that the article really gets the story right. To the contrary, insofar as the article sheds light on the problems of special education, it does so by inspiring skepticism on the part of the reader.

We are introduced to 7-year-old Jazmiah, who has been diagnosed with autism and attention deficit/hyperactivity disorder.   In addition, she has a variety of other behavioral and motor skills problems. She lives in public housing with her mother and another disabled sibling. The key fact is that Jazmiah hasn’t attended school since 2017.

That’s an outrage, right? Why isn’t she at school? The article suggests it’s complicated, but it doesn’t really seem all that complicated. Jazmiah’s mother, who appears to have problems of her own, took her out of the award-winning Success Academy charter schools, despite assurances by the staff that Jazmiah was happy there and that her teachers loved her.

This was by no means the first time the mother had withdrawn her daughter from a school.

The article is vague about her motivation, but it appears she was upset that Success had held Jazmiah back a grade, which is hardly surprising given that the girl had been chronically absent from school during the period she was enrolled. The mother also believed that her daughter required a one-on-one teacher. After she withdraw Jazmiah from Success, she also wasn’t pleased with the schools the school district has suggested that her daughter attend instead.

At some point following the withdrawal from the Success Academy, Jazmiah’s mother evidently lawyered up with a 12-member law firm that specializes almost exclusively in representing parents against schools in connection with special education issues. I don’t know about you, but I didn’t realize there were whole law firms devoted to special education. The article is vague, but it seems that the law firm (or somebody) got some sort of “legal ruling” last October that somehow “faulted the [New York] education department for failing to find a school placement for Jazmiah.”

Whatever the nature of that ruling, it apparently did not result in any immediate action. Jazmiah is still at home playing with shaving cream and Elmer’s glue. Towards the end of the article, however, we learn for the first time that Jazmiah has been receiving individualized tutoring in reading and occupational and speech therapy at home at the school district’s expense. This was deemed insufficient by the mother, though we aren’t told much about why.

One thing that struck me is that a significant portion of the article is spent criticizing the Success Academy charter schools. The author of the article wrote to the head of the Success Academy asking for comment on Jazmiah’s mother’s various accusations against the school. Some of the accusations were provably false, and the Success Academy indeed was able to prove them false.

In a grand display of chutzpah, the author then criticized the school for disclosing the information. This was something I’d never seen before—a journalist attacking his own source for disclosing information to him. The article reads as if the author was angry at Success for messing up his preferred narrative. Without Success’s input, he could have characterized Success and charter schools generally as failing to educate students properly.

Under FERPA, schools do have a duty of confidentiality. On the other hand, under the doctrine of implied consent, most legal duties of confidentiality work the way the attorney-client privilege works: The duty doesn’t apply when the client is defaming the attorney in public. In general, the attorney is permitted set the record straight rather than have to sit back and be defamed.

I don’t claim to know whether FERPA has been held to contain such an exception, but if it hasn’t been it should. The alternative is to acquiesce to biased media coverage of this issue. Parents who are understandably upset that their children have problems tend lash out at schools. Sometimes they do so unfairly.  Schools, charter schools in particular, will be unable to defend themselves. The public will be left with the impression that it’s all the school’s fault. But it won’t be true.

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