Due Process... Day 1

We filed for Due Process against Portland Public Schools on 12/11/2000. Joseph had attended 3 different High Schools here in less than 1 year, and had yet to receive any real education. We decided to represent him ourselves as we were clear on how he’d been denied a free appropriate public education (FAPE), and believed we could prove it in court.

We knew going into it that in Oregon it is rare that school districts lose in these hearings. We also were aware that parents representing their children without an attorney almost never came out on top. In order for us to win this thing on Joseph’s behalf, we would need to learn Special education law. That’s what we set about doing. Actually; Suzanne set about doing that. My time was spent sifting through all the evidence we had that demonstrated dishonesty, sneakiness, and incompetence. Believe me, there was a lot. In fact; the closer we looked at what had gone on, we saw more than we realized was there when we initially filed.

Our best evidence was the communication logs that had been going back and forth between home and school(s) for the last year. We discovered new evidence that we didn’t even realize was there until we began to study these logs. Fortunately; PPS was playing a delay game in going to hearing. This gave us more time to prepare, so we didn’t argue about it. We called 13 witnesses to the stand in the 2 days of the hearing. 9 of these witnesses were employees of the school district. Of these, we believed 7 were directly involved in denying Joseph FAPE. You might say they were hostile witnesses. The district was represented by their own special ed. Attorney (the one who had stepped into the picture when Joe was kicked out of Grant) and an attorney from Miller Nash here in Portland. The hearing took place on May 1st and 2nd 2001. It was held at the Child Service Center, which was by no means any sort of neutral site.

From the moment we walked into the room things were interesting. The lawyer from Miller Nash was extremely snippy; refusing to shake my hand. In response I began singing Aretha Franklin’s “Respect” as we set things out on our table. The district’s lawyer snidely asked Suzanne if she “slept well last night?” They were obviously trying to lift a leg up on us, but it wasn’t working. Suzanne smiled at her and said; “I slept quite well, and you?” The Administrative Law Judge (ALJ) entered the room and we began.

The district got things going with their lawyer reading a statement from the Director of Special Ed. She said that she believes everyone loses in a due process hearing. She spoke of how hearings drag educators away from their students, are costly, and that Joseph was merely 1 of 6,300 Special Ed. Students in the district. Her guilt tripping wasn’t working so well, as we believed we were representing those other 6,300 kids in exposing those who supposedly cared about their education.

Next, I made an opening statement. I said that although Joseph had learned very little in PPS, Suzanne and I had learned much from them. We had learned that while they weren’t willing to teach him spelling, cursive writing, or keyboards, they were what seemed like eager to alter or conceal documents pertaining to his education. I then briefly laid out how PPS had denied Joseph FAPE. I pointed out that the location of the hearing was totally non neutral, and that the Director could avoid due process by actually providing an education to students. I closed with talking about how the ALJ had apparently summarized our issues based on the district’s pre hearing brief.

Before we began questioning witnesses I spoke about missing pages in the copy of communication logs in Joseph’s school file which we had obtained prior to the hearing. There were other pages that had been altered and I wanted to make sure we were all on the same page literally. They had also added pages from his communication log that were dated after we had filed. It was basically a mess that took 20 minutes or so to sort through before we could start questioning folks.

Then the ALJ swore in the first witness. It’s important to note that she began each swearing with; “Under penalty of perjury...” Though some of these people blatantly perjured in their testimony, none suffered any sort of penalty for doing so. Suzanne was questioning the Life Skills teacher from Jeff; school #1. She told Suzanne that she had determined Joseph wouldn’t participate in regular ed. Classes after observing him for 2 or 3 weeks in her class. She also used an old IEP (they hadn’t seen his most recent one yet) from California to help her with this determination. She went on to grill the teacher regarding what other students in her class were doing academically. Not much. In her testimony she shared that the ridiculous g educational goals she came up with were based on the 2 weeks she worked with him (along with the other 15 or 20 kids in her class). She also admitted that she believed he was “mentally retarded” which he is not. She was busted by both Suzanne and the ALJ on several contradictions in her testimony and left the stand with a bright red face.

Next, it was my turn. I questioned the vocational staff person from Jeff regarding what led up to the incident with the beefy big dude Joseph supposedly assaulted. He had been the one who initially set Joseph up with this gig. Although Joseph was not doing well with staying out of his coworker’s personal space, this fellow never reported to us that this was going on. He was supposed to, he just didn’t. He also was involved in some altered math related goal documents. A terrible memory this man has. He was unable to recall much of anything that occurred, and continually asked ME questions to refresh his memory.

Suzanne questioned the next witness; Joseph’s Speech Pathologist while attending Jefferson. Her ability to recall was even worse than the witness before her. Suzanne kept her questioning brief as the “I don’t recall” mantra indicated she wasn’t going to share much of anything.

Joseph’s 4 day teacher from Grant was next on our list, and I questioned her primarily about the day of the incident where Joseph was kicked out of Grant. She shared that although no one from Grant knew or trusted Joseph regarding safety issues at that point, they let him go from the worksite by school bus back to the school unaccompanied following his alleged attack of his supervisor. She also testified that she didn’t remember any disciplinary conference with Joseph which is mandatory for a suspension to occur. Her memory regarding time lines was inconsistent, but over all she was helpful.

The Director of Special Education at Portland Public Schools was next up. I questioned her. Firstly; she referred to notes she would take as being what she used as her memory. Also, right up front she wanted to make sure we knew it was the Teacher’s Union that allowed for Joseph being excluded from Grant. I asked her why all the heavy hitters (including herself) were at the meeting following Joseph being kicked out of Grant. It’s not like we asked her, or the 2nd in charge, or Grant’s principle, or 2 area supervisors to attend this meeting. Her reply was that I seemed so angry that they decided they should act fast. Of course they were 1 day beyond the legal limit for keeping Joseph out of school, but I guess her notes didn’t reflect that. I then asked a lot of questions regarding dates of actions taken following that meeting being out of order, not making sense, and being bogus. She claimed ignorance of any such activities. I asked her about her referral to Eastside Education Center. Again, she was unaware that they’d be totally inappropriate for educating Joseph. Halfway through my questioning she came out with; “You know what? I think you’re badgering me now, and you’ve crossed a line.” I could hear the stifled laughter of the special ed. parents who were there as observers in the back of the room. Me thinks she doth protest too much.

The last witness on day 1 was the area supervisor of special ed. in the Jefferson cluster of schools. Suzanne took her on. This administrator and Joseph’s teacher at Jeff had been in direct conflict as to why he had such worthless goals for a year. They each blamed the other for this screw up. This administrator allowed Joseph’s civil rights to be violated at Grant. This administrator was responsible for back dated important documents. Suzanne didn’t go easy on her. She jumped on the director’s band wagon in attempting to portray me as this frighteningly angry man, but nobody was buying it. Of course like her colleagues she couldn’t remember anything until emails, letters and faxes were brought into evidence. Then her memory would come back clear as a bell.

With all the testimony from these professionals we knew we were coming out on top. The lawyers jumped at every opportunity to admonish, correct, and silence us, but it wasn’t working. The ALJ knew we weren’t lawyers, and afforded us the opportunity to ask questions in occasional backward fashion. Overall day 1 went quite well.

TO BE CONTINUED...