The hard truth about racism in special education: Part 2

For many families of color, navigating the world of special education can be overwhelming. Understanding students’ legal rights in the classroom adds another challenge, often leaving parents uncertain about how to secure the right support for their child.

In this episode, we continue our conversation about racism in special education. Listen as Malhar Shah, an education attorney, shares the legal rights parents have when getting help for their child. And get tips on how to effectively advocate for your child’s needs.

We love to hear from our listeners. Email us at opportunitygap@understood.org.

Related resources

• The hard truth about racism in special education: Part 1

• Confronting racial bias within special education

Timestamps

(01:39) Legal rights parents have to ensure their child is receiving support

(05:11) How to know when a school isn’t meeting legal requirements

(07:25) What parents should do to advocate for their child’s needs

Episode transcript

Julian: What's going on, OG family? Welcome to the "Opportunity Gap." I'm your host, Julian. Today, we're continuing our conversation about how institutional racism impacts special education. In our last episode, we heard from Chris. Great conversation. He's a proud dad. His son has ADHD and dyslexia. So, to finish off this important conversation, we are joined by an old friend of the pod, Malhar Shah.

Malhar is an education attorney, and he's here to not only shed some light on how the system can and must change, but he's also going to share what parents can legally do if they find themselves in a similar situation to Chris. Welcome back to the show, sir. How are you doing?

Malhar: I'm doing great. Thanks for having me again. I read a little bit about some of the background with Chris and his son, and it's incredibly tragic, so I'm excited to dive deep into this. I know this is a quite a fraught issue and something that's been, that's being talked about a lot in the education and education law and special education spaces these days.

Julian: Gotcha. So, you know, like you said, like for parents like Chris, which, by the way, listeners, if you haven't listened to that episode, it's really fantastic to hear about how a single dad really took it upon himself to figure out what to do to support his son. Can you tell us from your perspective, Malhar, what are what are the basic legal rights that parents have when it comes to ensuring their child gets the support they need at school?

(01:39) Legal rights parents have to ensure their child is receiving support

Malhar: So, the basic legal rights stem from two federal statutes. One is called the Individuals with Disabilities Education Act, the IDEA, and the second is this Section 504 of the Rehabilitation Act, we might call that Section 504 or just the Rehabilitation Act. The IDEA is the law that is meant to provide special education services and supports for students with disabilities.

Think about the modifications of curriculum, behavioral support services. These are really in-depth services that are meant to provide supports for students who need not only access to the school but access and extra support to get a basic education and to advance from grade to grade. Section 504 of the Rehabilitation Act is a little bit more of access just to the school doors.

There can be more than that there, but in that context, think less about specialized curriculum and more about, for example, a wheelchair ramp that gets you into the school doors. There are some more nuanced variations of those that are a little more complicated, but those are the basic differences there.

And both of these provide and provide a duty of school districts to identify students who they suspect as having a disability, assess those students to determine whether or not they in fact, qualify for either special education supports or just disability related accommodations, and to then create a plan, either an individualized education program for students who qualify under the IDEA, or a 504 plan for students who qualify under section 504. And these plans are meant to describe the specific supports and services to which these students are entitled to access school and access an education.

Julian: Can you answer for our listeners also, are there differences state by state, or is this the law of the land nationwide?

Malhar: So, this is the law of the land nationwide. There may be variations in how some courts in New York interpret the federal law, but by and large, the federal law is uniform across the states. Now, each state may or may not have adopted their own version of these laws, and that can have some variations.

Insofar as the states do have their own individual laws, they provide either equal or greater protection than the federal laws. They are not allowed to go under. So, if there is a circumstance in which a state is saying that you have less protection because of state law than the federal law requires that is a violation of the federal law.

Julian: Got it. And the reason I ask that is, you know, as we know there may be more transference of power from federal to state level. And so, our families need to understand it's really important to get familiar with not only the federal side of things, but also look at your individual state and see, you know, how are they executing the federal law at the state level? How would a parent or a guardian know if the school is actually failing to meet the legal requirements. Like they hear the law, they hear IDEA, they might drop 504 in a meeting or something, but how would they actually know if they're failing to meet legal requirements?

(05:11) How to know when a school isn't meeting legal requirements

Malhar: At the end of the day, what's important to know from a parent's perspective is that the bar for triggering a school district's duty to identify and assess a student for special education services is incredibly low. So, as soon as the parent reports to the school, some concern about the student's academic performance that indicates the presence of some kind of disability or the school district sees it themselves, the school district has to, in that instance, assess the student for special education services and supports.

So, oftentimes the ways parents can know that the school district is failing this duty is if a student is continuing to perform poorly in their academics, or for example, has some behaviors that are disrupting their own education or the education of others, is being disciplined in school. These are situations that may indicate the presence of a disability. They may not be in of themselves enough to indicate a disability, and not every situation requires an assessment in those situations.

But insofar as you, as a parent, have had conversations with administrators, with teachers, and have tried some supports and changes to their education to try to get something to work, and it has not worked, and the student's academic performance has not improved and neither has their behavior, that's a situation in which it's likely that the school district has a duty to figure out if there's a disability that is causing the poor academic performance or the behaviors, and if the school district has not assessed for that at that point in time, it's likely that the school district has already violated its duty.

Julian: Interesting. So, you know, we mentioned that you're an education attorney, right? Like you represent situations where schools may be in violation, and you try to represent families to get the support they need. If I'm a parent and I feel like I have not gotten the services that I am law-bound to receive from the school district, what steps should I take to advocate for my child?

(07:25) What parents should do to advocate for their child's needs

Malhar: The big umbrella advice that I have to give before I get into some of the more nuances is write everything down. Record everything in writing. That means communications to the school district, to teachers. Make sure that it is done via email or a lot of schools and school districts will have an app through which parents can chat with teachers. Use that. If you have a conversation that is around a student's disability or some suspicion of it, make sure that you follow up via email or a chat that records that information so that you have it for later.

Because oftentimes, what school district administrators can do is allege that the conversation never happened, and therefore, their duty was never triggered in the first place. So, when it comes to the nuances of this, making sure that a student is identified as having a disability where there is some suspicion of that, you can send an email to the school district special education director, to a teacher, to an administrator that you know, you may or may not have to trust that person, but anyone that you know, explaining to them the basis for which you believe that your child has a disability and an asking for an assessment to that end.

The old organization for whom I used to work there, called the Disability Rights Education and Defense Fund, DREDF. Their website, www.dredf.org, dredf.org, they have amazing sample letters that you can just download and fill out, and then send that to your administrators. Those letters are more than enough to trigger the school district's duty to assess your child. And then from there, the school district has about ten days to respond to you and either say, "No, we're not going to assess your student" or to give you an assessment plan for you to sign in return.

Julian: Got it. Now you're at a point where you may potentially seek out legal advice. Would you advocate waiting until, you know, you haven't gotten a response or things aren't changing? Or is it better to call an attorney early on?

Malhar: Most attorneys who practice special education law will give you some kind of guidance in these situations. Most of them will tell you that they will not begin representing your child until you get what's called an independent educational evaluation. And this is a little bit down the line. But if I can explain just very quickly, once you get an assessment plan from the school district and you sign it and you return it to the school district, the school district then has 60 days to assess your child and hold an IEP meeting to determine whether or not your child is eligible for special education services.

After that IEP meeting happens, you can request what's called an independent educational evaluation. That is, an independent evaluation by someone who is qualified to assess your child by someone outside of the school district, paid for by the district.

Now, when you request that evaluation, the school district has two options. The first is that the school district can file what's called due process case. That's at least what it's called in California. They can take you to an administrative hearing. They pay for it, and they try to prove to the judge that their assessment was good and they don't need an independent evaluation, or they can just pay for the evaluation. They have to do one of those two.

And most of the time, school districts fold and give you the independent evaluation because it usually costs them more money to have to go to an administrative hearing than it would cost them to provide you some kind of money to get an outside evaluation. Once the independent evaluation is done, usually that's the point in time it which you can contact an attorney, and the attorney will be willing to take on this case because you now have a very objective, independent evaluation of your student's disability profile, if there is indeed one there.

Julian: Got it. So, now let's dig a little deeper. As a lawyer who has worked in this space, why are schools struggling to provide support for our Black and Brown students?

Malhar: Let's talk about two buckets that I'm thinking of right now. One, we've talked about this before, funding. We've talked about the ways in which school districts raise fund, the way in which funds are disproportionately just distributed to higher-income neighborhoods. Schools and school districts in higher income neighborhoods can collect more money from parents through a form of taxes, and also in the form of donations. Those school districts have just so much more funding to get the resources that they need to provide education to students.

That includes providing really high-quality training to teachers, getting really great psychologists to assess students, and to figure out what special education services and supports are needed for that student. The other thing, though, is sometimes these inherent parts of our education system, implicit biases and just methodologies of teaching and responding to students and responding to behaviors that are embedded in systemic racism. That could include things like curriculum.

Curriculum that we know doesn't work for Black and brown students, as well as it has worked for white students historically, that has increased the achievement gap of ways of responding to students. Implementing discipline policies, for example, that are going to be implemented and used through the implicit bias of a teacher or an administrator that is going to disproportionately affect Black and brown students. A curriculum that is not as good for English learner students who are more likely to be brown students, for example.

Julian: Got it. So, for our listeners who don't know, I'm an assistant principal at an urban high school, and I serve as an LEA, local education advocate, for students on my caseload and I have to ask, knowing that my experience has been where many teachers and in some cases other administrators, when they hear that a lawyer is involved with a student or a special education case. There is a range of emotions that come up. And so my question to you is, what would you say to teachers or administrators or educators that are operating in a system where they are working really hard to provide services, but they just don't have it and it's out of their hands?

Malhar: Well, the first thing I will say is it's not your fault. This is a systemic issue. This doesn't go down to, and in most instances, the individual teacher level. I can't tell you the number of times that I've been in an IEP meeting while the assessor is explaining a behavior intervention plan to a special education teacher and the look of fear on their face because they have to do this for 18 other students all at the same time, and the students don't have an aide, and the there just aren't enough people in the classroom to support this teacher.

One thing that I can think of that is helpful for all parties is voicing the perspective of the teacher in the Individualized Education Plan meetings. In the IEP meetings. A lot of the times, as attorneys who are trying to get the school district to spend more money to train teachers, to provide additional behavioral aides in a classroom, whether they're one-on-one aides or just floating aides to help the teacher get some support.

We rely on statements from teachers who are willing in the education plan meetings to say, "No, I need additional help. No, this curriculum is not working for this kid." These are the kinds of statements that I think help us realize and really know that we're really all in the same team. We're all here for this student. And the teacher is also acknowledging and telling us that things aren't working for them.

Julian: I really want to get more into how can parents get involved in this, right? Like, so what advice would you give them to start the process of getting their child the support they need?

Malhar: Connect with a parent advocate. I think that's the first thing that I tell every parent. Parent advocates are folks who are not attorneys, but they know the education law quite well. They know disabled students' rights, and a lot of them are the parents of children with disabilities themselves. You can find these folks at what are called parent training and information centers. Every state has multiple parent training and information centers. Their services are free.

You can also contact your protection and advocacy agency. These are legal organizations that are meant to protect the rights of individuals with disabilities. They also have parent advocates in those organizations. They also have education attorneys who can provide services based on income-based requirements. But at the end of the day, you want to connect with a parent, a parent advocate, and specifically a PTI, because not only do they have great trainings in different languages for parents that teach them how to advocate for their kid, they can answer some really nuanced questions about what options parents have.

Julian: Two more questions for you. Number one, how much does all this going to cost?

Malhar: Parent advocates are free. The Parent Training and Information Center is funded by the Individuals with Disabilities Education Act by the federal government. Now, getting an attorney is a little bit more complicated. If you qualify for the services of a protection and advocacy organization or a legal aid organization that provides special education attorneys, of course, those services are free. Most people do not qualify for those income-based requirements because the threshold is so low.

The advice that I can provide is that a lot of special education attorneys will provide services on what's called a contingency basis. What that means is if, for example, you have a child who was provided inadequate special education services and you believe that student is owed some kind of educational compensation, some kind of services to make up for the inadequate or just lack of services at all, in those situations, you can contact a parent, a parent attorney, a special education attorney, and that person will represent you and will only collect fees if you take your keys to what's called a due process hearing, administrative hearing, and win that.

And in that situation, they will get that money from the school district, who in those instances may be required to pay the attorney's fees of the attorney. So, in those situations, parents don't pay anything. The attorney only collects money if they win the case from, win the case and they can collect fees from the school district.

Julian: Thank you. So, then that leads to my second question. We know that in many cases, suburban families may have more access to funds and more access to resources where they can hire attorneys that they can trust who know how to navigate the system without being predatory. If I'm not in that situation, and I am a family and potentially a family of color that already may have some mistrust or distrust of the system at large, for all the reasons that we've outlined on this episode today, what recommendation do you have for them or signs that they should look out for, for somebody being trustworthy to do what's best for their children?

Malhar: There are a few things you can do. One is to look out for signs that the lawyer is, in fact, actually being predatory. Lawyers who guarantee outcomes, which you're not legally allowed to do as an attorney, that's not someone who necessarily has your best interest in mind, because they are getting your hopes up when they're not allowed to tell you, and they don't know that they can guarantee an outcome at all. And so, they are leading you on to some degree.

Another thing that you can do, I think, is ask the attorney to connect you to some of their other clients who can give you testimonials. You can also contact, again, your protection and advocacy organization, for example, Disability Rights California. These organizations have really strong ties to attorneys who do this kind of special education representation. They can vouch for certain attorneys. They can say a little bit more about what their experience has been like.

And then again, parent advocates may have worked with attorneys in the past and can say, "We like working with this person and they might be a good option for you." So, these are some options. And then I think the final thing to ask an attorney is how often do you go up against the school district? How often do you advocate for students in that school district? Because the more students that the attorney represents in the school district, indicates that the attorney has to keep coming back to the school district, has to have a good relationship with the folks in that district, has to ensure that they are keeping good ties and that they are not burning bridges.

Julian: That's great advice. You know, really vetting the person that's going to support you in a way that that person has, I love the idea of having testimonials or seeing how many cases that they've argued in that particular school district, because then that shows we can build trust. And I promise, this really is my last question. We are recording in 2025. And I'm wondering, from your perspective, do you have hope that our system will improve and support the needs of all children?

Malhar: I have hope in the advocates that are fighting really hard. None of these issues, I think, are going to be systemically, vastly different in the next ten years, in my opinion. But I think that what I've seen from parents themselves, from parent advocates, from attorneys, from teachers, we're all trying to push every lever that we can to make the situation better for as many students as we can.

I think my hope and my expectation is that we will continue to educate administrators about the ways in which they're failing students and. And get some of the systemic changes that we need, and get some school districts and some schools to recognize that and build a body of parents who are willing and able to advocate, advocate for their kids and who can, who can push those levers themselves and not have to rely as much on attorneys to do that for them. I think that that's where my hope lies is just really in the people who are doing the work.

Julian: I think it's real, and I think it's truthful, and I feel the same way that I have hope. But I also have practical expectations, and all of it revolves around the work. The consistent work that we have to move the line.

This wraps today's episode. Malhar, I can't say enough about how much I enjoy talking to you. The way that you're able to explain complex issues in a digestible, bite-sized, chunked way tells me that you must have been a teacher in a previous life. Because you really break it down in a great way.

Malhar: That's the highest compliment that I can get is to be compared to a teacher. So, I deeply appreciate all the work you all do, the work that you do as a teacher. Thank you for having me on again. I really appreciate it.

Julian: If you are a parent, educator or advocate, I encourage you to get informed about your legal rights, take action, and keep pushing for a system that truly serves every single student. Until the next time, OG family, we'll see you out there. Thank you. Keep fighting.

Thanks so much for listening today. We love hearing from our listeners. So, if you have any thoughts about today's episode, you can email us at opportunitygap@understood.org, and be sure to check out the show notes for links and resources to anything we mentioned in the episode.

This show is brought to you by Understood.org. Understood is a nonprofit organization dedicated to empowering people with learning and thinking differences, like ADHD and dyslexia.

The "Opportunity Gap" is produced by the Tara Drinks and edited by Daniella Tello-Garzon. Our theme music was written by Justin D. Wright, who also mixes the show. Ash Beecher is our supervising producer. Briana Berry is our production director. Neil Drumming is our editorial director. Our executive directors are Laura Key, Scott Cocchiere, and Seth Melnick. Thanks again for listening.