Advocacy and Constructive Criticism in Public Education

Jeffrey Spitzer-Resnick —


Last July, a local school board President expressed annoyance with me on social media because she felt that I only expressed criticisms of her school district. While pointing out to her that I occasionally praise things that I believe the district does well, I informed her that my job as an advocate is to identify problems and suggest solutions through constructive criticism. Since it is unproductive to burn bridges with public officials, I have followed up with a personal message inviting her to get together so she can better understand my role as an advocate.

Her response is not uncommon regarding my advocacy as she is not the first public official who has told me that my critiques annoy them. In each case, I work to develop a relationship with that official so that they better understand my role as an advocate. Fortunately, in most cases, when they get to know me better and understand my role, they are better able to listen to my constructive critiques with an open mind.

As a civil rights attorney for over 34 years, I have been critiquing public officials for my entire career. One of the great ironies of my representation of those whose rights have been abused or neglected, is that while advocating for more government services, I also critique those same services when they are not providing my clients with what the law says they should receive.

In most cases, due to my advocacy, I am able to resolve my clients’ issues through negotiation or mediation resulting in a reasonable settlement. However, the reason I am generally successful in resolving cases without resorting to litigation is that school districts and other adversaries are well aware of my reputation to litigate if necessary. While most school districts would prefer to avoid litigation, occasionally, some cannot find a way to resolve cases with my clients short of litigation, and when that happens, while it is stressful and expensive for my clients, if we get a good decision, the litigation can help not only my clients, but other people as well, through the creation of precedent.

Recently, in a case where the parties attempted, but failed, to resolve their differences through mediation, I obtained a favorable decision in a special education case in Grafton, a Milwaukee suburb. My client has a learning disability and anxiety issues, and in the 11th grade he was writing at a 3rd grade level as well having other significant communication and educational challenges, despite above average intelligence. His mother had expressed concerns for years about his education, but the school district kept telling her that he was performing at grade level and that it was meeting her son’s needs. Finally, she demanded that the district test his writing level, and that is when she discovered that he was writing at a 3rd grade level.

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After investigating her alternatives, she decided to enroll him in a private residential school in Illinois, which specializes in working with students with learning disabilities. Unfortunately, this school is extremely expensive with tuition costs of $78,500/year, not including transportation. But, due to her deep concern about her son’s poor education and how that would pose extreme challenges for him after high school, she took out a loan to send him to the private school, and hired me to try to get the school district to pay the tuition for his attendance there.

As mentioned above, although the school district agreed to mediate, it refused to offer a reasonable settlement to my client even though my client would have accepted significantly less than full tuition payment if a settlement could have been reached. So, we proceeded to ask for a due process hearing.

The hearing was initially scheduled for 3 days, but the school district hired 2 attorneys from a big law firm to represent it, which resulted in the need to add 2 more days to the hearing. My client needed to borrow money to pay my fees, but she was undaunted and both she and her son provided powerful testimony at the hearing. We also had her son’s teachers and therapists from the private school provide extremely helpful testimony to explain her son’s challenges and what they were doing to address them. Even before we won the case, I informed my client that she made an excellent parenting decision to send him to this private school where he was finally making significant educational progress, which was also reducing his anxiety.

After 5 days of hearing, including dozens of witnesses, nearly 100 exhibits, resulting in over 1300 pages of transcripts, the parties submitted legal briefs to the judge. Together my 2 briefs totaled over 65 pages. Then, we waited for the decision and my client and I were thrilled when the judge gave us a completely favorable decision.

Once we received that decision, I contacted the school district’s attorneys to arrange payment to my client. However, the school district attorneys claimed the decision was unclear so they wrote a letter to the judge seeking clarification as to whether her order was for them to pay for 1 or 2 years of tuition. In response, the judge amended her decision to make absolutely clear that the district was required to pay for 2 years of tuition plus transportation costs. We have also demanded attorney’s fees to reimburse my client as the law requires.

The judge cited the U.S. Supreme Court case from a couple of years ago known as Endrew F., which makes clear that children with disabilities should have the opportunity to meet “challenging objectives.” She found that his Individualized Education Plan (IEP) was not  “reasonably calculated to enable him to make progress.”

Since the district’s attorneys have still failed to respond to my request for payment, and my client wants her son’s case to help others, she went to the press and it covered her son’s case in a front page story . In the story, my client made clear that:

She called the decision a victory not just for her son, but for special education students in Wisconsin and across the country who are not being adequately served by their schools.

She went on to say:

I did this for the 10 other (special needs) kids in his class. For the kids in Kenosha and Madison. Most families don’t have the resources to fight like this.

Remarkably, the reporter revealed the attitude of the school district superintendent Jeff Nelson.

When asked to respond to the mother’s concerns, he laughed loudly, then quickly pivoted, saying he was “defining in my own mind how to answer this question.”

When the reporter interviewed me, I told her that:

Every case is different. But the lesson here is if you don’t provide an education that a child has a legal right to, you can be put in a position like Grafton that is now having to pay significant costs so a child can be educated appropriately in a private school.

Despite this victory, I continue to believe that most cases are best resolved through amicable mediation or negotiation, as those methods are less expensive, quicker, and leave the parties in more control of the outcome, and probably with a friendlier attitude towards each other. But since that is not always possible, I will continue to represent my clients with vigorous advocacy to help not only them, but those who cannot find representation as my advocacy hopefully has a ripple effect to help others. Needless to say, my advocacy role as a constructive critic will continue.

This essay was originally published on Jeffrey’s blog at Systems Change Consulting (July 28 24, 2019).

About systemschangeconsulting (3 Articles)
For over 34 years, I have been a public interest civil rights lawyer. During that span of time, my entire career has been focused on analyzing social problems, developing possible solutions, and implementing systems change solutions that range from grassroots organizing, training, social and traditional media work, consumer and professional reports, educational/persuasive materials, legislative and administrative advocacy, and individual and class action litigation.

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