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0:00:05.6 Vickie Brett: Welcome to the Inclusive Education Project. I'm Vickie Brett.

0:00:09.3 Amanda Solohi: I'm Amanda Solohi. We're two civil rights lawyers on a mission to change the conversation about education, civil rights, and modern activism.

0:00:19.9 Vickie Brett: Each week, we're gonna explore new topics which are going to educate and empower others, and give them a platform to enact change in education and level the playing field.

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0:00:33.9 Amanda Solohi: Hi, everyone.

0:00:35.1 Vickie Brett: Hello.

0:00:36.0 Amanda Solohi: We are back today for our first solo pod of the new year.

0:00:42.1 Vickie Brett: Interesting. [laughter]

0:00:43.9 Amanda Solohi: It's been an interesting start to the year. There's still so much up in the air with the federal Department of Education. A lot of states over the last year started implementing new laws with regards to education. California is one of them. We ask that you go check out our Instagram page, because I've done some videos and some posts on a lot of the new changes pertaining to education in California, because our state legislature has been really busy trying to combat the changes and all of the chaos that is the federal Department of Education. And I know other states are doing the same, some for better and some for worse. So, I think, the best advice we can give you in this time while we await the chaos and all the lawsuits that come with it, is check with your state, because some states are really doing a good job of trying to combat. And if your state is not, we recommend going to your local representatives to say, "Hey, what are you doing?"

0:01:38.1 Vickie Brett: Yeah, it feels hopeless. I think that's the point—the chaos, the confusion. And if you are feeling that, we understand, we are there with you, and it is time to speak up with your representatives. You can call, leave voicemails. If they don't have somebody answer, it's not like this big old kind of they're gonna interrogate you and say all these... No, it's very simple. And sometimes you don't want to be the bad guy in Congress, right? But if your constituents are saying, "Enough," right? So then that's how a lot of the congressmen are approaching things, and congresswomen. This is what our voters need, right? This is what they're saying. And they print out the number of voicemails. They print out so that they have data. And it's always coming back to the fidelity of data. And one of the reasons why we also wanted to have this solo episode early in the year is because of the trends that we are now seeing specifically under this administration. And although we can empathize with the decisions that are being made, we still have an obligation to our clients.

0:02:48.1 Vickie Brett: And one of the things that I'm talking about is a lot of kiddos not qualifying for special education services, even though the school district will do the evaluations. And this was a potential new client I had just last week. And still everyone acknowledged, "We believe that your child is having issues with reading and writing, but not to the level with which an IEP and services is needed," even though the child is in the fourth grade reading at a kindergarten level. So, [chuckle] we wanted to kind of break down this scenario. So that's one example. And obviously, Amanda's gonna bring some other examples and really talk through what's next, right? And I think we're gonna be seeing this a lot more as funding is frozen or tightened by districts because they are not receiving federal funding either in a timely manner or at all. And I think it's important because like we've said, the federal law has not changed. Even if there's no Department of Education, the federal law has not changed. And so we have to just keep going until the wheels fall off, and we're just gonna ride it. [laughter]

0:04:03.2 Vickie Brett: So that's kind of our idea for today's episode.

0:04:06.9 Amanda Solohi: Yeah, we actually also had a message on Instagram from a follower who was kind of in this exact situation. And we often get asked, "I don't understand. The district acknowledged that my child has a disability or there's something impacting them overall, but they are saying that they're not eligible for an IEP. How can that be?" And so under the federal law, there's essentially two prongs to qualifying for an IEP. In order to fall under one of the 13 eligibility categories, it's not enough that their disability or impairment has to impact the child's education. But where we see, and we're seeing this trend, but we've been seeing it for years and years, is that the assumption that the impairment has to impact academics is where the districts go wrong. Most of the time, it's based on only the standardized tests that say, "Oh, well, on these standardized testing measures, this child is in the average range or only low average, and so therefore everything's fine," failing to consider what's actually happening academically in campus.

0:05:15.5 Amanda Solohi: But also these other factors—that at the end of the day, the law doesn't just say academic. It specifically doesn't. It's educational and encompasses so much more. It encompasses independent skills, vocational skills, self-help skills, social skills, emotional regulation. It encompasses so much more than academics—reading, writing, and arithmetic. And that's where these school districts fail to consider the whole child.

0:05:39.9 Vickie Brett: Correct. It's that negative impact, right? And then that means they need specialized academic instruction or whatever acronym we're now using, right? And so I think that that's where more often than not, we'll see the two go hand in hand, and there's not a thorough discussion about it. It's like, "Hey, your child fits under autism," and then they just say the sentence, "and special education services are needed so that your child is provided with a FAPE," or something along those lines. And once you're given your procedural safeguards, it's assumed, "Oh, and then if there's any... Go read this and that'll explain it." No, it really doesn't, right? Obviously, this is case law and different states are different. And if Amanda and I slip into California law, apologies. We did want to keep it federal, right? Because in states it varies the way in which decisions are made based on case law and unique. We always go back to, it's individualized, right? In California specifically, the district cannot rely on RTI, some of these programming that they had used in the past to say, "Oh, okay, well, yeah, we're doing this."

0:06:47.1 Vickie Brett: And they can't use this kind of "wait to fail" approach, which more often than not is what happens to a lot of our kiddos with dyslexia. "Oh," the teacher will say, "oh, but no, she's accessing her education and, she's getting twos and threes on her report cards." We all know report card grades can be inflated. We also know that some teachers are better equipped and can handle varying different types of learning challenges. And so what's gonna happen when that fourth grade teacher who is providing all this support is no longer the teacher for fifth grade, right? Then you're gonna give an IEP to that child for the remedial services or whatever it is that that child needs. If I'm thinking about the dyslexia kiddo, it is really difficult to have also a team say, "Yeah, your child technically qualifies under one of these eligibility categories, but they're doing great. So we don't... " And it's like, great? What's great? They're just passing, they're just getting by. They haven't hit social-emotional 'cause that's another thing that I think we see.

0:07:53.8 Amanda Solohi: Well, even with the academics, I think what we see a lot where schools are doing RTI, Response to Intervention, or they have like an SST process, or even some schools will bring in reading specialists that they do reading groups for the general education population. So it's everyone, right? And so they say, "Hey, we're doing this already." And with these supports, and they're accommodating because they have an SST meeting, the SST plan, they're saying, "Oh, well, they're doing fine." But what they fail to realize is that all of these supports that they're providing this individual child—the special reading groups, the accommodations—this is all special education. And so what they're failing to do is have the discussion of, if we didn't give all of these things, if we didn't give the special reading group, if we didn't give all these accommodations, where would the child be? And that's an important thing that the school teams often miss.

0:08:48.9 Amanda Solohi: And I've had this conversation with so many IEP teams of, "Hey, it's great that you're doing all of these things. I'm not failing you for it. I'm not marking you. I'm not getting upset about it. But it's the fact that you're not considering how would this child be doing if you didn't provide these." Because the law does not say how the child is functioning with these supports. It's without these supports. Or let's say the child has a 504 plan and the school just happens to be giving a very robust 504 plan. Often they are giving specialized academic instruction. If you get down to the bottom line of, what is special education? When we talk about special education and related services, it's not just accommodations. It's, are we providing actual individualized services? And what are these reading groups? Often these reading groups are individualized services.

0:09:44.7 Vickie Brett: Well, it's one of those situations too, where, like you said, they're relying more on the standardized testing. Whereas with under the federal law, we are able to, for the evaluation procedures, you are to look at a variety of assessment tools, right? And that could be so many things. And it even states within that, we're not to use a single measure or assessment as a sole criterion for determining whether a child with disability and for determining appropriate educational program for the child. But that's what we see, right? They're just using grade. "Oh, well, but she's getting twos and threes." And it's like, okay, we're not supposed to use one [chuckle] criterion, and that's what you guys are doing. And more often than not, the school districts are waiting on this, the "wait to fail" approach, right? I had a teacher in the past tell my parents, for the IEP meeting, there was a parent-teacher conference. And she had said something along the lines of, "Well," she was in the fifth grade at that point, "well, maybe she'll get an IEP in middle school."

0:10:48.0 Vickie Brett: And the mom was like, "What do you mean? If she needs it in middle school, she needs it now." And the teacher's like, "Well, she'll be more behind then." Right? And it was just like, the mom was like, "You just want my child to fail this whole time?" And she was having a lot of social-emotional issues. When she was getting home, she didn't want to do homework, she couldn't read, she felt stupid. And the school just continually ignored that. And in that situation, the parents were of the means to put her in a private placement that specialized in kiddos with dyslexia. But that's not the case for parents. And you hear us, it's like a broken record. You have to make a record, you have to make those requests, and you have to be the squeaky wheel. Because for whatever reason, they're making that determination. And who knows? We never really know, right? Amanda and I always assume it's a money thing, right? And which... Yeah. And that's the only way that we can [chuckle] try to rationalize it. Because otherwise the child's suffering. Why aren't you helping the child, right?

0:11:49.0 Amanda Solohi: Yeah. And I would say sometimes even it's that lack of communication. And often it's not on the part of the parents, right? The parents will bring concerns to the teacher, but it's through their ParentSquare or their communication app. Or it's pickup or drop off. It's, "Hey, my child is really struggling. They come home and they say they hate themselves. They hate they're dumb, they hate school, they don't want to go to school. It's a battle every morning." And they have these discussions. And the teacher in many instances, does the best they can to write, to accommodate, to encourage the child. And often they're doing what they're supposed to do, but they're not necessarily trained on, like, "Okay, well, this is a situation where social-emotionally, this is having a bigger impact." Maybe the grades aren't suffering yet, but the fact that the social-emotional side is being impacted now is enough to qualify them for an IEP. And in many cases, these kiddos are very bright, so they're able to compensate, they're able to make it up. Or maybe they are average or a little below average.

0:12:50.1 Amanda Solohi: But the parents are doing so much at home. It's an hour and a half to two hours every single day for homework for a second grader. Well, that's not appropriate. It shouldn't take that long. And we often tell parents, you want to put everything you can in writing and as much as it's hard to do, right? You have a busy schedule, you might have said something at pickup or drop off and that's kind of the only conversation. And so then when it comes to this initial IEP and the school psychologist is saying, "Hey, I don't really see an impact," maybe they had a conversation with the teacher. But teachers are human. They may not remember every single conversation. They might have 24 to 30 kids. And are they gonna remember that you brought this to their attention 10 times over the course of six months? They may not.

0:13:34.9 Vickie Brett: Exactly right. Yeah.

0:13:36.0 Amanda Solohi: And so it is somewhat up to the parents to have those things documented. And so then when we get to the point where we're having those discussions about eligibility, even in the assessment process, to provide the school psychologist with that information of, "Hey, here's every single documented time." Or even like, I was talking to a family the other day and I said... It was a child who was like in fourth, fifth grade and they were older and they were kind of cognizant of what was going on. And in that case, there was a lot of bullying going on. But I said, "If she wants to take a journal of what she's feeling every day, that can be helpful," because that can be evidence of there is a greater harm here. The harm isn't just academics. And what we know about mental health is that if the child is refusing to go to school or they're giving a struggle or they're having self-doubt, self-harm thoughts, or even just they're talking down on themselves, that's gonna spiral.

0:14:33.0 Amanda Solohi: And just because they're academically... Maybe they have a tutor. Maybe they have other supports. Maybe they're just working their butt off. To get to the point where then the grades... And so, this is all the information that the team needs to be considering when they're thinking about eligibility. It's not just the paper grade.

0:14:49.1 Vickie Brett: Yeah. And what I'm referring to, the CFR, the Code of Federal Regulations, and it's Section 300.304 evaluation procedures. It does within it, state, "In conducting the evaluation, the public agency must... " Right? And there's one, two, three. But where I wanted to point to is, whether the child is a child with disability, that's what the determination of the variety of assessment tools. And within that, those, the tools and strategies, are to gather relevant functional. That didn't say "academic" first. Relevant functional, developmental, and academic information about the child, including information provided by the parent, may assist in determining whether the child is a child with disability under the other section of the code. And two, the content of the child's IEP, including information relating to enabling the child to be involved in and progress in general education curriculum.

0:15:44.9 Vickie Brett: If your child's not going to school, they're definitely not involved in the general education curriculum. And that's where Amanda's point to the mental health. And things will work until they don't. And when we lose that buy-in, especially younger and younger and younger, it's really, really difficult to climb out of that hole. And I think that that is, when you're feeling like you don't know what to do, at least always put it in writing. I'll have potential parents who, yeah, sometimes it's kind of like a diary entry that they're sending this email to the principal or anything like that. But there's so much information in that. I'm like, how did the district not just immediately evaluate this child at this point, right? And I get it. I'm sure the administrators, for every one or 10 people that send an email like that, maybe it doesn't raise to that level. But sure, more often than not it does. But those parents get disheartened and then they just keep their mouth shut, or they go and get private services. But I guarantee you, not everyone is overreacting, [chuckle] right? I feel like...

0:16:54.1 Amanda Solohi: Well, no, at the end of the day, especially in this day and age, most parents don't want to necessarily label unless they have to their child. They're doing it because their child needs services or they need support. I have had so many kiddos where the evaluation on this second prong is determined "not eligible" when the child doesn't have any friends or has a lot of difficulty in early elementary school having those peer relationships or developing those peer relationships. And the response that I often get from school teams is, "Well, their academics is fine, it's not impacting." And when we dig further and we dig deeper into that social connections, obviously, social skills, having a connection, being part of a community is a big part of school. And so it goes towards that vocational-foundational skills, to school, to learning. Being part of the community, feeling like you have friends, it is a big part of it. But two, I don't know that you can find a single elementary, middle, or high school student that isn't required to work in a group at some point in their day. Not just once a week, but generally in their day, they're gonna be in a small group.

0:18:07.0 Amanda Solohi: And if they can't have conversations with their peers, whether it be about the weather and what they did over the weekend or about the actual assignment, if they're having trouble there, they're having trouble in school. And I think far too often schools think of it as, "Well, school's not meant to maintain friendships." Well, it kind of is, because part of vocational skills is building that teamwork, the camaraderie, the working together, the problem-solving skills, that either if the child cannot work with teams because they are really having trouble even talking to peers, or there's a conflict anytime they talk because maybe they make assumptions about what the other peers are saying or doing, right?

0:18:50.0 Amanda Solohi: That idea of, "Everyone's looking at me, everyone's talking about me." If that's their mentality, which often, not to pigeonhole one disability, but kiddos on the spectrum often have trouble taking perspectives. And that peer dynamic is a big factor in that of, if they assume or they don't understand the dynamics, they're gonna have a real hard time relating to peers, then wanting to be part of this group. When it comes to playtime in the early years, they have no one to play with, they're playing by themselves. Not to say that they can't have alone time, but it does have an impact on academics eventually.

0:19:26.7 Vickie Brett: Well, and that also goes back to the assessment process, right? That's why it is so important. And again, it's within the federal code to being assessed in all areas of suspected disability, including, "if appropriate," again, academic is not number one on this list, "if appropriate, health, vision, hearing, social and emotional status, general intelligence, academic performance, communicative status, and motor abilities." Now, I'm not saying, "Oh, look, they put more emphasis because... " I'm just pointing out that we feel that academics part, just like Amanda described, it's like they go through the testing and then all of a sudden it's still a no because the districts in our experience have put way more emphasis on the academic component when there's 10 other things that are supposed to be accounted for and really discussed as a team. And more often than not, we don't hear anybody aside from us, right? Or the parents, pointing those out.

0:20:31.5 Vickie Brett: It's almost as if they just give like 80% of the weight to academics and all these other things, if we even bring them up, are like 2%. And that's why in the course of leading up to the assessments, during the assessments, it is imperative to have something in writing because the school psych, like Amanda said, isn't going to talk to the teacher about... Well, of course they're like parent concerns, but if it's a brief conversation, they only have a couple of minutes. It's like if there's emails that exist that this school psych is gonna pull because the child is associated with it, that's gonna paint a clearer picture because you're writing it in the moment that it happened and you're not forgetting anything by the time this school psych is gonna interview you maybe six months down the line.

0:21:18.8 Amanda Solohi: Yeah. Well, and I guarantee you that child who is very quiet, doesn't really have many friends, has trouble communicating and socializing with their peers, they are the student that is most likely to slip through the cracks because the teacher is gonna think about it and think, "Oh, I never have any problems with that student. Yeah, I don't have any concerns."

0:21:40.1 Vickie Brett: Totally.

0:21:41.7 Amanda Solohi: And it's not to say the teacher is lying or is at fault, but just human nature. And like our memories, if we don't document and we don't have something in front of us, our recollection is gonna go back to the most recent thing.

0:21:56.8 Vickie Brett: Yeah, I can't even tell you what I had for dinner last night. I don't know. Like, "What?" [chuckle]

0:22:01.9 Amanda Solohi: Right. Unless you're having a conversation with something about that. So kiddos who have a lot of disrupting behaviors. And this goes on the flip side of students who have a lot of... Who have behaviors, often it's over-exaggerated because that's the last thing that came to that teacher's mind. So the same thing applies. So we cannot rely just on interview questions. So we always say, "We need concrete data." It's great for a school psychologist to go out there and do an observation. But when I look at an evaluation and there's two observations and they're both during the same kind of time, one is during math and one is during ELA; and they haven't even done unstructured time, they haven't looked at recess, they haven't looked really at the full picture of the day. And each of those observations are 20 minutes and maybe they're even the same day. And I'm like, "They could have been having a good day. How is this concrete data? It is not."

0:22:55.0 Vickie Brett: Or your favorite, which I know we've talked about a lot, when you're in the IEP meeting and the teacher's like, "No, no, no, they have friends. I see them. I just saw them today." And then you're like, "But how many times have you seen them with a friend?" That's just today. But they always bring something today.

0:23:11.5 Amanda Solohi: Or they go, "I saw them across the yard." Did you hear what they were saying? "Oh, no, I couldn't hear them. I wasn't that close." How do you know that was a conversation? They could have been bullying them. You don't know.

0:23:22.9 Vickie Brett: Yeah, yeah, you think they've just been walking by, and you saw the one moment where they're just like, "Hey." [chuckle] It's just one of those things where, yeah, of course... And then they look at us like we have a third head because we're asking for data. Okay, well then observe. And it's like, "Well, why are we observing?" And it's just because I don't know. Fine, I believe you, but that doesn't negate every experience parent has had with no invites to birthday parties, nobody showing up to birthday parties, no social engagement of their child or whatever, right?

0:23:58.0 Amanda Solohi: A kid isn't gonna just come home and say, "I hate school, I'm dumb, I don't have any friends," just for the hell of it. A kid doesn't do that.

0:24:05.9 Vickie Brett: If at all. If at all. I have plenty of clients that are not able to... Even if parents were like the best cross-examiner in the world, like, "How was your day?" "It's alright." [chuckle] And it is very difficult with our families that have kiddos that are nonverbal or are not as fluent, right? Or are not able to identify. And so, we wanted to be able to point out some of these areas in which we see districts kind of more so give their opinion. It's just how it's always been. But if you start getting curious with it and really hitting hard the types of assessments that they're doing, what areas they are looking at... I've had a kiddo that was assessed last year, or I guess now in May of '24, when she's having big behaviors at the end of last year, '25. And we wanted reassessments, and the district was like, "We've just assessed. Nothing's changed." And we were like, "What? Everything has changed. She's in a new grade." And what was like, "Oh, it's okay if she's running out of the class at TK," is no longer appropriate in first grade or kindergarten or whatever, right?

0:25:22.0 Vickie Brett: Or she was in kinder and now she's in first grade. Now she's losing actual academic time, right? And here are the areas. I had to get so specific with the areas because it is the suspected disabilities, right? They have to assess in all those different areas. And you can say, "I think we need to look into that." And that was that potential new client. They needed to look in and do additional evaluations. And then when they... I feel like when that happens, right? Because they just wanted to do the initial and be done with it. But then if you're like, "I think that we need assessments in this area," or like, "This was really low. Why are we not looking into this? Tell me more why this area does it?" Because the subtest gets us all the time. They're always like, "Oh, but it averaged out, so it's fine." And it's like, if working memory is way below average, that's a problem long-term.

0:26:17.0 Amanda Solohi: Well, and even not just the problem of saying it averages out, but legally speaking, school psychologists are required to have that secondary analysis, not just telling us the scores, but talk about how these scores are impacting the child's ability to learn. And I'd say almost every time I write a due process complaint where I am attacking a school district assessment, I'm talking about the fact that there is no analysis there. It's not just that there's no analysis in the conclusion of the eligibility, but there's no analysis throughout the assessment, and that's what they're required to do. When school districts, when we get neuropsych evaluations or IEEs that come in and actually do that analysis and talk about like, "This is what this would look like," it's night and day. Because it's not just a matter of looking at the scores as raw and that idea that one standardized score is not the basis for determining anything in special education. It cannot just be one factor. You need to be looking at it holistically and we're just not. We're not having that analysis of how does that impact.

0:27:23.9 Vickie Brett: And we're gonna have to hold their feet to the fire even more so, right? And I think that that was the purpose of today's episode, to walk through this scenario that we have seen in various different ways and we've given a few examples. And then obviously if it raises the level where it's just like too much of a burden, reach out. But for those that are in different states, I think we're gonna start to see it. We saw it at the tail end of winter last year when Trump took office of certain programming not going to exist during this school year. And just like these little subtle shifts. Now, though, just one year later, we haven't even gotten to a year. He hasn't even been in office a full year. We're days away from that. But we are starting to see this untethered... [chuckle] I don't even know how to describe it. It's just, it's the way that people are moving, you need to pay attention. Because they're getting a watered-down version from whomever is in charge of their particular district or SELPA or whatever.

0:28:32.9 Vickie Brett: And even us in California, there is a shift, and it's not like around the corner, you guys. We are in it and it just doesn't feel that way because everything else is just kind of overwhelming our senses, just what's happening in the state of our world. But this is something that you can still control. At the end of the day, these are still humans. On the other side of you, there is still a child at the center of this. We just need to focus on that. And we hope that we can make it through. We'll do it together [chuckle] for the remainder of this school year, and we will worry about next school year when we're in it. If you guys have any specific questions, just like our some listener had sent in before, obviously we made a whole episode about it.

0:29:15.5 Vickie Brett: So please, you guys, just DM us. Amanda and I also have a few other topics that we really want to get into. And then we have a fabulous lineup of guests that we're really excited about. But yeah, we're getting back to basics. And we also know a year or two ago when we had gone through the eligibility categories. You guys like that. So we've kind of, we're gonna reframe that a little bit as well. But we hope you guys are taking care of yourselves. And we will talk to you in a few.

0:29:41.8 Amanda Solohi: Bye.

0:29:42.9 Vickie Brett: Bye.

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