Is My Confidentiality Agreement Confidential?

As of 2009, approximately 5.8 million students were receiving special education services in the United States. This population includes children with mental and physical challenges. They may be educated with their “typical” peers for a majority of the school day or segregated into specialized learning programs.

When children have special educational requirements, their education is governed by an Individualized Education Program (IEP). This is a document that outlines everything from the goals that are being set for the student to the exact services that will be provided by the school district. It also contains assessments about the child from the various educators and other specialists who work with the child, including the child’s progress in meeting the goals outlined in the previous IEP.

As advocates for their children, parents should have input into the contents of the IEP and indeed they do have an opportunity to meet with the school’s special education team after the document has been created. After this discussion, they can either sign off on the conclusion or request changes. Unfortunately, it has been my experience in raising two daughters with autism that unless these changes are minor or do not involve the allocation of resources, the school-level administrators will tell you that they are not empowered to alter the IEP.

To appeal the IEP, parents need to negotiate the school district’s bureaucracy. Success depends on following the exact process specified by law. If parents have the financial resources to assume the risk, they can hire a lawyer to increase their chances of success. If the case makes it all the way to a formal hearing and the parents prevail, the district will have to pay for their legal fees.

The step before a formal due process hearing is a mediation session where a neutral party tries to facilitate a compromise. In the last couple of weeks I spent the better part of two days in these types of sessions and was able to reach agreements for each of my two daughters. Unfortunately, I cannot discuss the details of either of these agreements as they both included a confidentiality clause.

I am sure that not all of the issues that we were able to resolve in the settlements are unique to our daughters. However, since we became a squeaky wheel, our children got the grease. The confidentiality clause ensures that the district’s lubrication budget does not get too high.

In the end, I signed the agreements with the confidentiality clause included because my first priority needs to be my own children. However,  I should not have to choose between what is best for my children and what is best for the greater good. Similarly, the district should be more concerned with making sure that all of their students reach their full potential and purposefully keeping information from reaching parents will not help to accomplish this goal. The use of confidentiality clauses makes them seem more interested in protecting the bureaucracy.

Unfortunately, the only advice that I can give to other parents that I know are facing similar circumstances is to recommend a good lawyer specializing in advocating for children with special needs. This is unfortunate as parents, educators and administrators should be on the same team, not adversaries. An us versus them mentality is not in the best interests of the children.

The current mentality also needlessly diverts scarce education funds from actually educating the children. In the considerable amount of downtime during the two days of mediation, I could not help but wonder how much was being spent on the mediator, the district representative and all sorts of support staff. What eliminated program or laid-off teacher could have been restored with these funds?

I am realistic and know that not every dispute is the fault of the district. There are also unreasonable parents, greedy lawyers and genuine disagreements. However, the district should do everything possible to increase collaboration and, therefore, reduce the number of disputes.

First, school sites need to be given more autonomy. Whether it is a real or just a perceived policy, on three different occasions administrators have told me that they were unable to consider the changes that I had requested in an IEP meeting and insisted that I would have to appeal to the district. These administrators have the most direct knowledge of the student’s needs and are better suited to making these decisions than a bureaucrat downtown who just knows about the student from what they read in a file. In cases where the local administrator needs input from the district, a representative should be on call so that they can be consulted during the IEP.

To paraphrase Uncle Ben, with greater power comes greater responsibility. If administrators are given greater latitude in crafting the IEP, then they need to be held accountable when students do not make progress towards their established goals. They need to check on the student between IEPs and make sure that the teacher’s evaluations of the student are correct. The administrator should have the power to make the appropriate changes if they find that a teacher is not meeting the needs of the child.

In general, bureaucracies tend to favor the status quo. Therefore, none of these changes are possible without pressure from the outside. LAUSD’s 82,000 special education students are depending on it.


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