I have never been involved in a lawsuit before. The process was eye opening, and my experience was life-changing. I want to share the hard lessons I learned and the perspective I gained along the way to help families understand what this path is really about.
In 2018, my son and I sued Charlotte Mecklenberg School District and Board of Education.
To introduce myself, I am a mother of two children, I have a master’s degree in Social Work, and I have worked as a Certified Substance Abuse Counselor. I have also held positions in psychiatric hospitals, have been an outpatient therapist, and worked for the juvenile court system. My husband and I live near Charlotte, North Carolina. My daughter has dyslexia and dysgraphia and is a successful college graduate, with a degree in microbiology, immunology and molecular genetics. My son, now age 20, was diagnosed with high functioning autism, and has made remarkable progress year by year. He was reevaluated before we moved to Charlotte, in 2016, and because he was making such good progress, the psychologist did not give him a diagnosis of ASD any longer. This also had to do with the recent changes to the DSM-V, which eliminated the diagnoses of Pervasive Developmental Disorder, Not Otherwise Specified, and the diagnosis of Asperger’s Syndrome. His report designated some ongoing characteristics of autism and some learning disabilities, including dyslexia and dysgraphia. Along with that, the current diagnosis for my son was unspecified ADHD, anxiety and depression.
I brought his four psychoeductaional evaluations to Providence High School. These evaluations explained, in detail, my son’s strengths, weaknesses, and how he gradually worked himself out of the diagnosis of Autism.
Providence High School, backed by CMS, refused to consider offering my son use of the Learning Lab, specialized instruction, a separate test setting, or any sort of an IEP. They also refused to conduct their own testing for autism or the need for specialized instruction, despite my repeated requests. I continued to push for the support I knew my son needed, and they offered him a 504 learning plan, with the accommodation of extra time on tests. Testing in a separate setting was not available, I was told. He had to choose between finishing a test while the next class was going on, or not finishing it. He was not allowed by many teachers to finish a test on another day, because he might study that evening and change his answers or learn the answers to the test questions, which would be “an unfair advantage.”
By September, my son was struggling and by Christmas he was failing 5 classes. He stated that he wanted to die. He picked big, open sores in his arms out of anxiety and an autistic behavior called stimming. He begged to start the school year over, or to repeat 10th grade. I made a verbal contract with him that he would not harm himself. I made necessary adjustments in our home environment. We discussed pulling him out of school, but he loved the music program, and wanted to try to catch up, academically. I admired his perseverance and strength. He had the support of a therapist and a psychiatrist, as well. We agreed that if he felt like harming himself, we would not stay in the stressful environment at Providence High. I consulted an education advocate, and told myself I could advocate for my child on my own. I was wrong. I couldn’t make progress with the school IEP team. Tensions were growing within the communication needed to resolve our situation.
Providence High refused to evaluate my son for an IEP after my third request, despite his academic and emotional breakdown. I told the school staff that my son was struggling with suicidal ideation, and they openly blamed me for his mental state and failure in school. I was criticized for both helping him too much and not enough. I was judged for being too easy on him and too hard on him. I had never felt so misunderstood or experienced such intense resistance toward positive collaboration in a student’s best interest. At this point, I hired an attorney, who filed a complaint with the North Carolina State Department of Public Instrtuction, NCDPI, detailing the violations of the federal IDEA—the Individuals with Disabilities in Education Act, committed by Providence High School and Charlotte Mecklenburg School District.
The school staff at Providence High were unwilling to consider the stress of their school environment as a contribution to our concerns. They held strong in their position that more testing was not needed. They indicated that even if I sought private testing, and even if it put my son back on the autism spectrum, it would likely not qualify him for an IEP. They insisted that he was lazy and defiant, and capable of doing their 11th grade work. I strongly disagreed, and told the school and district that my son, while trying his hardest, was unable to complete his school work independently, either in class or at home. I was either not heard or not believed.
In my limited experience with the principal, Tracey Harrell, PhD, I got the distinct impression that Providence High School had no interest in helping kids with learning disabilities, and actively encouraged “those kids,” to leave the school and go somewhere else. Providence High, I was told, was a school for academically high performing students. When I pointed out that PHS is a public school, obliged to educate all students in their geographic area, I was asked to leave the premises. This treatment did little to change my impression that PHS wants to “weed out” kids with learning differences, which, by the way, is illegal for them to do. Providence High school, and schools like it in other districts across the country, is acting as if it its a private school or a magnate school, when it is a public school. School Boards seem to be looking the other way when the top performing high school in their district takes this stance, because they want that great high school with the super test scores. Parents of the college bound, high performing academic kids often support the stance that the top high school in the district doesn’t want, and shouldn’t have to deal with learning disabled children, who would pull down those test scores.
Our lawsuit was motivated by one question, “If this is how CMS treated us, how are they treating other people?”
I felt concern for others without financial resources, time or support needed to effectively advocate for their children. I wanted to make a difference for other children who need an IEP or a 504 and aren’t getting fair treatment or their legal right to a Free Appropriate Public Education, or FAPE. Ultimately, going through this lawsuit only strengthened my resolve to help other families.
I am committed to taking the lessons I learned and turning them into positive opportunities to be of service to others. Even though I absolutely made many mistakes throughout my own legal process, I am grateful it has been my “wake up call” to help others who are on similar paths with their children’s education.
Five things I would have done differently:
1. I would have voice recorded every IEP and 504 meeting, even, and especially, telephone calls with the school. It was amazing to me, and disheartening, how the school officials lied during the hearing, but I had no proof that they were lying about what was said.
2. I would have hired an experienced, trained advocate to attend meetings with me, on behalf of my son. You cannot be “Momma Bear” and an effective advocate at the same time.
3. I should have, in hindsight, payed the $4,000-$6000 out of pocket costs for neuro psychological testing and psycho educational testing when the school refused to evaluate my son. Even though they aren’t legally obligated to act on the contents of private evaluations, ignoring them completely puts them on the wrong side of the issue if a lawsuit is filed.
4. I should have attended my son’s last IEP meeting even though I had requested it to be rescheduled. I was incorrectly told by the EC director that I would be arriving “too late.” I thought the school had be responsive to my request for a schedule change. They were not, and they used my absence to find my son ineligible for an IEP.
5. I should have paid for an attorney to attend every IEP and 504 meeting, after the State Complaint was filed,even though it would have cost money—as it might have saved the cost of a lawsuit, and would have been cheaper in the long run.
Our Lawsuit: Summary of Results
The State Department of Public Instruction (DPI) found that Providence High School and CMS were in Violation of Federal Law (the IDEA) for not having evaluated my son for an IEP in September.
Two things have to be true to trigger psycho educational testing, according to federal law: First, the reasonable suspicion of a disability and second, a request from a parent, staff or teacher. Providence High Staff and CMS District officials were completely out of line in their position that my son was not eligible for specialized instruction without testing him.
The State DPI ordered “corrective action,” in the form of an IEP assessment by Providence High and CMS.
CMS conducted an IEP that looked away from Ben’s issues. I was asked, verbally, at a meeting, if I “stood by” the psycho educational testing that had been conducted before we moved to North Carolina. I replied that I did stand by it. I did not realize CMS would take this comment as my consent NOT to have Ben retested for autism, but CMS interpreted my answer as an exact “NO” for the testing. I had been requesting testing for autism all along. My “yes,” answer gave the District a loophole, an out, an excuse, to NOT assess Ben for Autism. This despite an email to the IEP team from his English teacher stating that she believe that my son was, in fact, a child with autism.
The sad result? CMS (the school district) found Ben ineligible for an (IEP) Individual Education Program, despite his dyslexia, dysgraphia, depression and anxiety. My second issue was feeling clearly that that Providence High Staff tricked me out of attending the eligibility meeting. I requested to reschedule the meeting date. They claimed not to have understood my request. I was told that the meeting was starting at 9:00 AM, and if I arrived at 9:45, I would be too late. After the meeting was held, without me, and expressly against my wishes, the paperwork indicated that the meeting had taken over 5 hours. I should have gone to the school no matter what, to make sure I was in attendance regardless of the confusing communication around the scheduling.
After 8 days of hearing, including the costs for 2 expert witnesses for our side, the judge at the Office of Administrative Hearings, Selena Malherbe, ruled against us on all eight counts of our lawsuit. It was as though none of the testimony from our side had been heard or given any weight. Particularly disturbing was that the judge copied and pasted her ruling directly from the “proposed ruling” created by CMS’s attorneys, and gave no legal analysis of her own. It felt to me as though there was no way that a parent could win in her court.
Top 12 Lessons Learned, and Cautions for Other Parents:
1. It takes a TON of time. I thought I could give my attorney the records of the IEP meetings and that she would take it from there. I spent hours figuring out the costs of tutoring, how many hours my son spent in extracurricular activities (which counted against him, according to the final court decision), how many miles we traveled to tutors and to therapy. How many therapy sessions were attended, and fees incurred. More time was spent searching for emails to and from the school and the district. I eventually had a mini break down on the phone with my attorney. I explained that I could not drop everything at a moment’s notice to complete a project for her that would take me hours. I needed a list of what was needed, and a time frame in which to get her information.
2. It will hurt everyone in the family in some way. I was already emotionally hurting due to CMS dismissing the needs of my son, rejecting my concerns, and not considering the input of the psychologist who had tested him four times. They demonstrated a callous disregard for the well-being of my child, and I was categorized as a hysterical, crazy, lying, demanding, not-to-be-taken-seriously person. That was hurtful enough. Later, I read the internal emails between the Principal, Tracey Harrell, and others, which revealedlies to my son’s teachers about the State Complaint by denying that any violation had been found. There were sections stating that nothing I said was to be believed, that I was the cause of my son’s emotional and academic difficulties, and that the school and district staff felt sorry for my son for having a mother like me. This was all very painful. The fact that the law, in writing, gives more weight to the school district than any parent seems insurmountable. Even though I knew that, going in, my attorney and I believed that the way Ben was treated would cross this legal threshold.
3. The process will take a toll on your relationships.
My husband was not totally in favor of the lawsuit and resisted spending the money that it cost. He could appreciate my intention to change the system for other kids, and eventually he supported my belief that a lawsuit was the first, best step toward this. The entire process and our eventual loss has been an ongoing conversation, and not without stresses of its own.
4. CMS does not settle cases out of court.
Their staff of full-time attorneys are employed to fight off any allegations made by parents. There is no financial incentive for the District to settle any case out of court, and a lot of incentive to drag out the process in hopes that parents will run out of time, patience, or money and eventually drop a lawsuit. Districts without several full-time attorneys have more reasons to settle with parents, because they have to pay for extra lawyers.
5. It’s more expensive than you can anticipate, in time and money.
My attorney worked with me to try to minimize my costs, and I did a lot of work myself in order to avoid further fees for the lawyer or paralegal to do the required research. We had an 8-day hearing, with two expert witnesses on our side. Our out of pocket costs for losing this case were around $50,000. Ouch!
6. The judges at the level of the Office of Administrative Hearings do not have to be impartial, fair, informed about learning disabilities, or listen to your side of the case.
There is an inherent bias in the law that favors the school district over parents. The judge on our case seemed to ignore substantial evidence presented by our attorney and witnesses. She stated in her judgement that she put more weight on witnesses from CMS and PHS than on testimony by our experts, my son’s private school administrators, my son, or myself. She listened for over an hour as my attorney proved that Ben unable to work at the level expected at CMS, and the judge seemed to refuse to believe the facts in front of her. In the end, she didn’t even provide any legal analysis of her own but copied her ruling from the proposed decision written by CMS attorneys. Her final decision essentially blamed my son for his failure, implying that he was lazy and unmotivated to succeed, which was what CMS had argued. Ben’s subsequent success at Trinity Prep, a private school that provides specialized instruction to all of its students, seemed similarly ignored, since that school wasn’t believed to have the same “academic rigor” as Providence High School.
Ben’s mental health, suicidal state of mind at PHS, self-injury, and even his return to the diagnosis of Autism Spectrum Disorder seemed to me to be completely ignored by the judge, along with a submitted statement by an English teacher that she believed Ben had autism. It felt very much to me like Judge Selena Malherbe, at the Office of Administrative Hearings, was in the pocket of CMS, or was at least colluding with them to rule against parents. It felt like we never had a chance. At the beginning of the hearing, she started to recuse herself, but changed her mind at the urging of the attorneys for the district.
7. No matter how airtight your case seems, you have a great chance of losing.
Our case was very strong, but eligibility issues are rarely, if ever, ruled in favor of the child and parents in the state of North Carolina. The State Department of Public Instruction, which is supposed to make all of the law suits and complaints against school districts visible to the public on its website, is not doing that currently. In many ways, the NCDPI is complicit with the school districts in North Carolina, especially where Child Find and questions of eligibility are concerned. There was no guidance or oversight to make sure that CMS tested my child properly, for the right conditions, (like Autism), and no consequence for their failure to do so. Even if you win, you’d better keep an advocate on speed dial, because the State will not ensure that the school is following the child’s IEP correctly or in good faith.
8. The appeals process is precarious.
I thought that if we lost at the first level, we could simply appeal and move up, and keep doing so. The appeal system also contains judges that are biased against parents. An unsuccessful appeal can be very harmful to others in similar situations, because losing can result in legal precedents that allow school districts like CMS to keep harming special needs kids, in the same way that they hurt you and your child. It was very hard for me to hear that the best thing I could do to help other kids like my son, and other families like ours, was to stop fighting in court.
9. I am stronger than I think, and our children are even stronger.
Even when the behavior of CMS is so egregious that parents win a lawsuit, their financial reimbursement comes with a nondisclosure agreement, so that the greatest crimes against special needs children are never known to the public.
Even though we lost the law suit, I taught my son to stand up to bullies, ask for what he needs and to speak his truth by doing so. If any retaliation had happened to my son, it could have been made public and/or part of the lawsuit. Bullies like to operate in secret, in the dark, and some CMS district and school administrators, and even teachers, are known to operate in a bullying fashion.
10. I choose to be empowered, despite a legal loss in court. There is a silver lining in this experience too. I can share my story. I can blog, contact the media (carefully), write a book, and help as many other families as possible through sharing my experience. I can turn my experience and education into a business. The silver lining for my son was our opportunity to take him out of a toxic situation and place him a much better school. He received Specialized Instruction by every teacher, in every class. He repeated 11th grade, by his own choice. He continued with music through the Jazz Arts Charlotte Jazz Academy. UNCC professors Will Campbell, Hannah Harrell, and Ben Still have been more than kind and helpful to Ben. Central Piedmont Community College is providing him with accommodations that Providence High refused him, and he is thriving. He is also working 20 hours per week at a local supermarket.
11. I can continue advocating for positive change by helping others. I established my business as an education consultant and advocate, drawing from my social work background and advocating for my own children. I have joined a professional organization called COPAA (The Council for Parent and Attorney Advocates.) I have successfully complete the advanced Special Education Advocate Training (SEAT 2.0) Class. I have joined the non-profit, “VOICES for Learning” in Union County. I have spoken at some of their meetings and at Union County School Board meetings. I look forward to being of great service in these roles.
12. Our community is strong. I see great value for parents of Special Needs Children to connect with each other. As a community, we can unite and promote positive change. When parents form as a group, Districts and Schools have no choice but to take notice. A group of “Parents of Exceptional Children” could not only offer help for families by sharing resources, support and information, they could speak and write to the School Board, the Media, the State DPI, the Office of Civil Rights. They could protest, effectively. A large group of Parents of Exceptional Children, from any single school district, might have a class action lawsuit to file. They might gain local, or even national media attention. They might start pressuring law makers for legal changes to special ed law, or at least adherence to the laws that already exist. They could demand transparency regarding schools and districts that violate special education law. They could start a movement, and other states might start movements of their own. Parents of Exceptional Children, united, might change the world for children with learning differences.
If we can be the people who care enough to move this cause forward, I have hope for a positive future.
Tracey Lyons Tozier, Education Advocate and Consultant in private practice lives in North Carolina with her family. Permission to reproduce any portion of this article must be granted in writing from the author, Tracey Tozier. For further information or to contact Tracey, visit her website: www.traceylyonstozier.com