Month: March 2017

 

In the early 80’s, I was working for Michigan Protection and Advocacy in Michigan’s Thumb. One day, I got a call from a Director of Special Education about a terrible problem he was facing.  His daughter had autism and a seizure disorder that could (and had) resulted in cardiac arrest. His family had moved to a county different from the one in which he worked to tap into a very high-quality autism program. Unfortunately, this was a time of funding shortfalls for many school districts, and all the staff in the autism classroom had been laid off and replaced through bumping.

The replacements of the teacher and the two aides in the classroom were a teacher who had only worked with adolescents with EI labels, and the two aides were replaced by secretaries with no previous experience working in the classroom with students who had severe disabilities.

There were six students in the classroom.  All had very significant communication difficulties and behavioral problems that merited significant support. In addition to the daughter who had the seizure disorder, there was also a young man whose eating behaviors were a significant risk to his health. His home and school routines were carefully coordinated to ensure that he took in enough food to maintain his weight. Disruption of this routine would result in steady weight loss.

The change in staff had produced the significant disruption of the classroom routines and this had the expected impact on student behavior and the atmosphere in the classroom. The disruption extended into the home environments as well.

No one in the district was happy with the situation. Everyone wanted a solution.

Because the job bumping process was part of the labor contract, there was no obvious or immediate solution available. A lawsuit could challenge the current contract language, at least as far as the way staff qualifications affected bumping rights, but both the district and the union had a deep investment in the negotiations that led to the current contract that went far beyond this particular issue, especially in a time of funding distress and job losses.

A lawsuit approach would also take a great deal of time, time that the students in the classroom didn’t have. Even a special education complaint would require investigation, and would also impinge on the contract, no doubt triggering an injunction if the complaint was successful. More time lost.

There needed to be a solution that didn’t directly surface the contract language if it was to be effective and quick.

All six families met with me to go over the issues and to come up with a common strategy. We settled on one that didn’t include the contract language and that, we hoped, would provide the impetus for the district to create a solution that would satisfy their stakeholders. Frankly, none of us had any idea what such a solution might look like.

Think about that. We knew we couldn’t solve the problem directly. We didn’t know what kind of solution would be acceptable to the district stakeholders, and we had no way of figuring that out in the short-term.  At the beginning of this process, no one in the district knew what kind of solution could work, either.

We settled on the following strategy:

• Each family would develop a schedule for their child’s school day in 10-minute increments. This would be the ideal school schedule from the family perspective. It would include everything that was in the IEP and supports that the parents believed were educationally necessary for their child, but which weren’t in the current IEP. Each schedule also included a statement that allowed the family to enter the classroom at any time during the school day to check on whether the schedule was being followed according to the 10-minute increments. If it wasn’t, the family would file a special education complaint about the failure to follow the IEP.
• Each family would write a separate letter to the district asking for a new IEPC. At the meeting, each family would hand the district the schedule. They would say that this schedule was what they wanted for their child and if it wasn’t acceptable to the district, they would ask for a hearing. In effect, the district faced the possibility of 6 separate special education hearings.

There were significant costs and risks for the district in this strategy. Each hearing was a separate expense (they weren’t cheap). This issue would most certainly hit the papers, and it would not be a labor contract issue, but a failure to provide adequate services to a particularly vulnerable group of students. And it was possible that through the six hearings, we would win one or part of one, and set a precedent for both the approach and the ability of parents to drop into special education classrooms whenever they liked.

After the meeting with the families and the development of the strategy, I met with the school principal, and I told him why we were approaching the issue the way we were.  I was completely honest about the family concerns and what we were trying to avoid. He took that discussion to the school stakeholders. Neither I nor the families were ever a part of those discussions. I never found out how those discussions went.

The district came back with a solution that allowed the current EI teacher to retire and do some contract work for the district. The two secretaries were given secretarial jobs. The original classroom staff were rehired on contract for the rest of the current school year and rehired into permanent jobs the following year. The families dropped the strategy we had developed.

As I look back on this particular advocacy experience, I see it as a clear example of engagement in the same way as the examples I described in the last few posts. The intent of our strategy was to provide the district with a way to achieve a common purpose across both the families and the district.  This common purpose was obvious but couldn’t be addressed explicitly.

The district’s solution was one that addressed the vast majority of the interests of all the parties involved. I would never have come up with this solution in a million years. Only through a peculiar juxtaposition of explicit threat and implicit cooperation was the solution found.

This approach to engagement has value far beyond the examples that I have described. In the next post, I am going to talk about a deeper use of engagement in our time of chronic seemingly unavoidable polarization in our efforts to achieve social justice.

Next Post: Engagement to Build a Path to a Common Future

Engagement, as described in my last post, doesn’t easily fit into a standard negotiation, largely because the “enforcement” of the agreement doesn’t have an external accountability mechanism. Either the agreement is internally self-enforcing or it doesn’t work.

The cooperation of the parties doesn’t depend on punishment delivered by a third party, like the law, or a regulator, or a deity. An agreement that results from engagement lasts as long as the parties continue to experience the benefit (or potential benefit) and no longer.

Because engagement results in an informal (even invisible) agreement, it can be used as a way to make progress when more typical negotiation approaches would be impossible or would take too long:

• Immediate agreements between enemies (as in my previous post)
• As an approach between political opponents when public collaboration would have high political cost
• When the explicit problem facing the parties is impossible to resolve publically in a time frame that would actually be of use to those parties

I am sure this all seems very abstract.

Well, it is.

While the examples I discussed in my last post are very concrete, they also aren’t terribly relevant to disability rights advocacy. I am going to go through an example in some detail using my next post that was the most complex special education advocacy case in which I was ever involved,  to give more depth to the abstract discussion above.

Today, I’ll finish this post with a discussion of another special education issue that taught me how important the scope and public nature of a conflict is in securing a workable agreement.

In the early 80’s, I was working for MPAS at the Caro State Hospital as a regional advocate for the six counties in Michigan’s Thumb. About half my work involved representing students and families in special education disagreements.

One case involved a student in late elementary school who had a learning disability that involved a problem with something called internal language. Kids begin to use language to organize their behavior according to the demands of the outside world just as soon as they have language. But using that language to organize their internal behavior is something that starts at age 4-5 and continues into adulthood. An example of a learning difficulty caused by developmental delay in internalizing language would be a student who does well at math until story problems are introduced. Because story problems don’t map the procedure for a solution the way math problems do, the student has to manipulate the story to tease out the solution procedure, using internal language in support of that manipulation.

Although supporting the development of internalized language had a basis in neuropsychology at that time, there was no such concept in educational psychology or the standard view of learning disabilities in special education. This meant that it would be very difficult, perhaps impossible, to win support services for this purpose for this student using the typical advocacy approach.

In particular, the local district was worried about setting a precedent that would trigger a “woodwork” effect of thousands of parents storming the district with torches and pitchforks demanding therapy for a delay in internalizing language. For another, it wasn’t clear to the district just how much it would cost or what specialty could actually provide that support.

What to do?

The district suggested using a method in the rules called arbitration instead of the traditional hearing. I looked into it, but couldn’t find that it had ever been used in Michigan (it may well be that our use was the only one). In terms of this student’s situation, arbitration had many advantages. For one, it was much less expensive and much shorter than a hearing. Also, the arbitration decision did not set a precedent that the district would be required to consider for every student in special education. These two realities of arbitration undermined almost completely the system concerns that the school had.

From my point of view, it simplified my argument that the support should be provided to this specific student. I could use the general special education principle that the school needed to provide supports to enable the student to benefit from education, an assessment that said internalizing language was the educational problem, and an easy to understand rationale for the actual support. All of this was straightforward. And the decision of the process was very agreeable to all.

In Michigan, arbitration has been replaced by dispute resolution using client-centered mediation, a much better system for a lot of reasons than arbitration. But the lessons I learned about negotiation have stuck with me through the decades.

Next Post: Invisible Purpose and the Uses of Misdirection