The Dark Side of Special Education: Retaliation: A Primer

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retaliation, n. -Syn. vengeance, reprisal, punishment; see revenge

Retaliation against parents is a taboo topic in special education. No one knows how wide spread it is, or how often it occurs. Yet, where ever parents gather and when ever parents talk among themselves, the topic of retaliation receives lively attention. The focus of this essay is on parents; however, retaliation is not limited to parents alone. Anyone who advocates for children can become the target of retaliation (see The Shelia Hopper Story, Issue #9, Winter 1996/97, below).

Retaliation is the act of using official resources to "punish" parents. It can take many forms. It is not, technically, a crime and it can be difficult to detect. However, the underlying "causes" of retaliation are no mystery. There are two key ingredients: power and accountability - too much of the former and not enough of the later. The mechanism that seems to trigger retaliation is effective advocacy.

Retaliation occurs in an environment where school officials view IDEA as an unwanted imposition or as a way to develop a power base. In this setting the job is not to fully implement IDEA. Instead, school officials translate their responsibilities and duties to children and families into unquestioned decision making power over them. The profile of such officials can take two forms: openly hostile or smoothly deceptive, the latter preferring passive aggressive resistance. Hostile officials on the other hand use their position as an instrument of power to openly intimidate and even punish parents.

Many parents never encounter retaliation. Those that do however, are usually strong advocates for their children. Regardless, retaliation does occur and the fear of retaliation inhibits many parents. This affords school officials wide latitude to implement IDEA and the ADA as they see fit.

The Retaliation Triangle

Like the food triangle, patterns of retaliation can be classified into three levels. Level I, the most frequent, is low-level passive activity, with the goal of delaying the process. Level II is more overt; the goal is to scare parents. Level III is the form of open hostility and the goal is to punish parents. Level III retaliation is rare, but costly, dramatic, and damaging.

Level I - Delay. The goal at this level of retaliation is to reduce parent effectiveness by passive resistance, such as the introduction of delays and obstacles in the many processes involved in special education. There are numerous ways officials can achieve this result.

One is simply playing dumb. This allows officials to effectively ignore the law and parent rights under the law. Another is "forgetting" to do things. An official may repeatedly forget to follow-up on a commitment, such as getting back to parents with further information, or fail to schedule further meetings without several reminders. Being "away from the phone," so often that parents give up on some important issue is also effective.

Yet another technique is overly technical interpretations of laws and regulations. Level I does not appear hostile, but it can be extremely effective.

Level II - Fear. Level II retaliation is not hidden. At this stage officials may appear to be openly frustrated and hostile. They will state that they won't for example, allow parents to observe a class, or won't permit certain kinds of testing. The list of "can't do's" is quite long. Most of it however, is bluff. Level II retaliation is based on putting up a tough front in an effort to scare parents and reduce their advocacy. It is predicated on parental ignorance of the law. While it can be very effective, parents can break through this barrier by learning more about special education laws and regulations and simply insisting on compliance. Once past the obstacles, parents usually find that resistance is eliminated.

Level III - Punishment. At this level, retaliation can get quite ugly, with school officials openly threatening and actively trying to punish parents.

In this war-like state, school officials have a variety of weapons to choose from. One is the fair hearing process. Schools have vast financial resources to transform fair hearings into a major trial-like proceeding. Since there is no accountability to taxpayers for the large sums spent in such legal adventures, officials have free rein to spend hundreds of thousands of dollars.

Aiding and abetting this practice is a network of attorneys who specialize in fighting parents. These attorneys are organized into a professional group which holds national conferences (see Issue #4, Fall 1995). School officials are invited to attend these conferences where they are tutored in the finer points of "aggressive action," in the form of strategies to be used before an IEP meeting or at the pre-hearing conference of a fair hearing.

There have been recent reports of a menacing new form of retaliation involving the fabrication of child abuse charges against the target parent. Such allegations can trigger an investigation by the California Child Protective Services, which has police-like powers. Pending the outcome of their investigation, they may choose to remove children from the home. Level III is so serious that most parents need an attorney to protect themselves.


The Story of Sheila Hopper Retaliation:
The Dark Side of Special Education
How Education Officials Retaliated Against A Student Advocate

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When Congress passed the special education mandate in 1975, it had no idea what kind of organizations would evolve to implement it. Over the years some of these organizations have become powerful bureaucracies with needs that are frequently at odds with the people they serve. At their worst, such organizations can become dysfunctional. The story within the story of Sheila Hopper is about one such system.

Perhaps nothing more separates the officials who control the special education apparatus from the consumers they are supposed to serve than the ugly reality of retaliation. Many stories are known. This is one of the more horrific.

This is not a new story, but it has not been widely told, and it does not seem to have an end. It is the story of a highly professional, knowledgeable, and resourceful teacher who knew too much. She knew too much about federal law, she knew too much about her school district. And, she cared too much.

Shelia Hopper, a resource specialist in the Los Angeles Unified School District, could not ignore the fact that a 5th grade child could not read, write, or even spell her name. In 1988, the child was referred to Sheila for testing. It should have been an easy task to provide the student with needed services. But, when a large bureaucracy is involved, with its hierarchy of power and jealously guarded prerogatives, what should be easy is often impossible. In this case, the needs of the bureaucrats took precedence over the needs of the child.

The special educators that Sheila went to for help did not agree with her that the child needed special education services. Without consulting with Sheila or the child's parents, a school psychologist declared the student ineligible for special education services. Because she believed the child was being denied services illegally, Sheila filed a complaint against the district in May 1989.

This was not just any district, but the Los Angeles Unified School District (LAUSD). LAUSD is big and powerful--a $5 billion enterprise, with relatively unlimited resources. When she filed a complaint against them, Sheila gained a powerful and vindictive adversary. Then Sheila realized that the district routinely held IEP meetings without the classroom teacher present. She filed another complaint. The district was found to be "out of compliance." When by 1992 the district failed to implement needed changes, Sheila filed yet a third complaint.

The retaliation started long before Sheila's last complaint. Perhaps the most insidious was in the work environment, where according to Sheila, she experienced a myriad of subtle pressures. Her split duty between two schools continued beyond the point where a single assignment was warranted, her caseload was allowed to grow beyond the mandated limit, causing her waiting list of kids to be tested to stretch to 10 months. But the worst was yet to come.

In March of 1990, Sheila was charged with child abuse. The police could find no evidence of such a crime by a teacher with an impeccable record of performance that stretched for over 15 years of honorable duty.

Charges were immediately dropped. However, the district persevered with its own "investigation."

According to Sheila, over the next two months the school principal called three or four of her students into the office five, six, or seven times to "interview" them about Sheila. The students were given jelly beans to keep these discussions secret. For some it was a terrifying experience. One child started to cry as he asked Sheila if the principal was trying to get her fired. Another started having nightmares.

Finally the district made its move. Based on the charges that had been earlier dropped, Sheila was given a 15 day suspension, a transfer, and an unsatisfactory performance review. In response, Sheila filed a grievance and in June 1990 the case went into arbitration.

Not only did the arbitrator find in Sheila's favor, in a rare departure from normal practice, he wrote a scathing commentary citing "professional misconduct" on the part of the district.

As a result, Sheila filed charges against the principal with the California Teacher Credentialing Commission. The Commission recommended a 10 day suspension of the principal's credentials. The district appealed. The case went before an administrative law judge, with the California Attorney General's office prosecuting against the district.

A nine day hearing ensued, the outcome of which was a finding that the district did not retaliate against Sheila. Interestingly, the judge had been asked and refused to excuse himself from the case because of an unusual circumstance. He knew Sheila's husband, who is a medical doctor. An unusual request by the judge had been turned down by Dr. Hopper in his capacity as an HMO manager.

Most people would give up at this point. Fortunately for the rest of us, Sheila did not. She finally got an attorney. He succeeded in getting her a trial before a jury.

In November 1994, following a five day trial, a jury deliberated for an hour and a half and decided in favor of Sheila, finding that the school principal had indeed retaliated against her by falsely accusing her of child abuse. She was awarded $50,000 in general damages and $5,000 in punitive damages. But the district, fueled by a limitless supply of taxpayer money, refused to accept the jury's decision. They appealed. The jury decision was then overturned by a three judge federal panel.

Sheila is now petitioning the U.S. Supreme Court in an effort to restore the jury conviction and her good name. She will find out in 1997 if the Supreme Court will hear her case. The total spent by LAUSD to prevail over one lone resource room teacher? $565,000, and counting.


Epilogue
What, our readers may wonder, ever became of the child who inspired this incredible story of retaliation? She was of course, placed in a special education program. Sheila was right all along.

Follow-up story:

Retaliation Incident Spurs Action
State Launches Retaliation Investigation

The Special Education Observer Issue 11

The Joint Legislative Audit Committee last May voted overwhelmingly to launch an investigation into allegations of special education funding misappropriations and retaliation against whistle blowers in the Los Angeles Unified School District (see The Sheila Hopper Story, The Special Education Observer, Issue #9).

The move was initiated by State Assemblymen Steve Baldwin and Jan Goldsmith. According to an article that appeared in the Los Angeles Times (5/21/97), once underway Goldsmith intends to pressure District Attorney, Gil Garcetti to broaden the investigation to include other allegations, such as "fabrication of enrollment numbers to increase state funding."

Baldwin is quoted in the Daily News (5/21/97) stating "It's not about one person. It's about a system of fraud and abuse."

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©Special Education Observer

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David Krantz, Special Education Observer