Special Education
Law Quarterly
December 2000
Bulletin #1
Professional Responsibility and Special
Educators
I.
Advocacy for Students with Disabilities
Special education professionals are often confronted by barriers to the provision of services
required to ensure that their students receive a free appropriate public education (FAPE).
These barriers include such things as parental resistance to an initial evaluation,
individualized education program (IEP) or placement, insufficient resources available in the
school or district, and/or disagreement on services from other professional staff including
administrators. When these or other barriers exist, a special educator is forced to make
decisions on how to resolve the conflicts. The educator can be put in the uncomfortable
position of choosing between what he or she believes is his or her professional responsibility
towards a student and agreeing to a contrary decision by either parents and/or other
educational staff. It is important to remember that the professionals and the parents involved
in this decision are all advocates for the student. All perspectives are "legitimate" and must
be considered as part of the team collaborative process and no one person on the evaluation
or IEP team has more power in the decision-making process than another.
What is the duty of a special educator towards students with disabilities when he or she faces
resistance from others in the decision-making process? How should an educator resolve such
dilemmas?
II.
The Special Educator’s Role as Advocate
Professional responsibility for special educators includes the duty to advocate on behalf of
special education students. Advocacy is not typically thought of as the responsibility of
special educators; it is more often used to describe the actions of parents, lawyers and other
groups outside of the educational system. However, the Individuals with Disabilities Education
Act (IDEA) and Section 504 of the Rehabilitation Act of 1973 (Section 504) clearly mandate
that educational staff have the duty--in collaboration with parents--to ensure that the rights
of students with disabilities are protected. In order to fulfill this mandate to protect students'
rights, staff must be advocates for their students.
Page 2 of 10
Special Ed Law Quarterly, Bulletin #1
Advocacy has been defined in a variety of ways, but there are several common
characteristics. First, educational advocacy involves intervention when "needed services are
not accessible; are not available; are not appropriate; are not effectively provided; or when
the voice of a child is not being heard."(1) An effective problem-solving strategy to correct
problems in the delivery of services is speaking "on behalf of or in partnership with someone,
such as a child or parent, in order to procure needed services."(2) Advocacy has also been
described as "information, advice and representation provided to individuals and their
families to assist them to acquire appropriate services"(3) for a student. Keeping the
definition of advocacy and the duty to advocate in mind, resolving dilemmas such as those
described below will be easier.
III. Sound Familiar? How Would You Handle These Situations?
Liz and the Truly Terrible IEP Meeting: Liz has been teaching special education for over 20
years primarily working with students with behavioral disabilities. She found this group of
students to be particularly challenging and satisfying to work with and had spent a lot of time
learning more about appropriate interventions and educational strategies for these students.
Dennis is a fifth grade student with disruptive behavioral problems who has just moved into
the district from another state. In the previous district, he received services in a regular
education class with a one-on-one educational assistant and extensive psychological and
behavioral therapy during an extended school day. The records the former school sent with
Dennis documented steady progress in all his goals and objectives and contained
recommendations for the continuation of the previous IEP.
When the appropriate personnel got together to discuss the new IEP for Dennis, it was clear
that no one was seriously considering implementation of the previous IEP except Liz. She
believed that Dennis required services as described in that IEP. However, she found no
support from any of her colleagues for this position although was told it would be discussed at
the IEP meeting with the parents. However, at this meeting, a new IEP simply was presented
to the parents for signature. It included placement in the regular fifth grade class-room and
related services that included 2 hours a week of one-on-one behavioral therapy from Liz, but
no classroom aide, and no extended school day.
Both Liz and the parents requested that the old IEP be implemented. As during the first staff
meeting, the psychologist for the school district disagreed and was supported by the regular
education teacher and the special education director.
Liz was shocked by this united front and felt strongly--based on her years of experience and
review of the previous educational records--that such an IEP was not "reasonably calculated
to ensure benefit" and that Dennis was sure to fail without adequate support. She expressed
her disagreement and after a tense discussion that clearly was not going to resolve the issue,
the special education director ended the IEP meeting and said that he would get back
together with the parents at a later time. After the parents left, the special education
director told Liz she was out of line, that she knew there were not adequate services
available for Dennis and that no one had extended school day in the district. Further, he
reminded her that he had the authority to determine the IEP contents and she was overruled.
End of discussion.
Copyright © 2005 by University of Washington.
Special Ed Law Quarterly, Bulletin #1
Page 3 of 10
Jo and the Gastro-Button Tube Feeding Task: Jo is a first year special education teacher who
had been assigned a self-contained third grade classroom with several students with special
health care needs. The district had assigned Charlie, a paraeducator who had years of
experience in the school, to the classroom. Although Jo was nervous about her responsibility
for the special health care needs students, she felt reassured by Charlie's presence. There
was also a nurse available during part of the day and available by phone when she was at
another building.
One of the students, Patty, required medication and nutritional feeding through a gastrobutton tube once during the school day. Charlie had received extensive training on how to do
this procedure and the responsibility for feeding Patty was delegated to him by the school RN.
However, Charlie became violently ill one day at school and had to leave immediately just
before it was time for Patty's feeding. Jo had never done anything like this tube feeding
procedure and immediately called the RN who had already left for the day. So she called the
nurse at her other building and was told by the RN that she couldn't come over to do the
procedure, but that she would "talk" Jo through it. That didn't make Jo feel much better, so
she decided to call the principal and ask for his advice. The principal said, " Just do it, the
nurse will help you over the phone." Jo still felt really uncomfortable with this order and so
she called the special education director who said, "Didn't they teach you this in school? Lots
of kids have tube feedings. It's part of your job as a special education teacher. Do it." Jo was
worried that she might harm Patty and did not want to do the feeding.
IV. What Guidance Does the Law Give?
When a special educator faces dilemmas such as those described above, he or she will resolve
them with information and experience from a variety of sources. Legislatively enacted laws at
both the state and federal level, regulations adopted by state or federal agencies, and court
and hearing officer opinions, all guide special education practice to the extent that educators
are aware of these laws. In addition, professional organizations typically pass ethical codes or
standards of conduct that describe the practice expectations of the members. Of course, the
educator will also rely on practical knowledge as well as personal ethical standards.
Courts and Administrative Agencies Decisions
Special education law requires that children with disabilities receive appropriate educational
services and the courts consistently hold State Educational Agencies (SEAs) and Local
Educational Agencies (LEAs) responsible for ensuring that this occurs. The IEP or Section 504
plan is intended to be a collaborative effort among parents and educational professionals and
designed to provide FAPE to the student. Determining what is appropriate does not-in a
court's opinion--depend on what is convenient, what resources exist within the district, what
is typically offered, or in some cases, what parents want. Rather, the law requires that
professionals use their expertise in deciding what the child requires for FAPE and then
ensuring that those services are provided.
There is no question that what the law requires--i.e., whatever is required to ensure FAPE-may not actually be provided because of limited resources in many districts. In addition,
professionals can disagree about services that a child requires for FAPE. The courts recognize
the limitations in service delivery and that professionals can legitimately disagree on services.
However, the law does not excuse the district from failure to provide FAPE and districts who
try to defend IEPs or other decisions concerning special education students when they have
Copyright © 2005 by University of Washington.
Page 4 of 10
Special Ed Law Quarterly, Bulletin #1
not provided FAPE, will find no forgiveness in the judicial arena. Rights to appropriate
educational services for students with disabilities do not depend on financial considerations.
Because professionals and parents can and often do disagree on what constitutes an
"appropriate" program for a child, the courts or administrative agencies have often been
called upon to make a determination in a particular case. The United States Supreme Court
heard a case involving Amy Rowley in 1982 that established the standard districts must apply
in determining whether an IEP is appropriate. The Court stated that districts must 1) follow
the procedures established in the IDEA and 2) that the IEP must be reasonably calculated to
enable the child to receive educational benefit.
http://laws.findlaw.com/us/458/176.html
Since the Rowley decision, lower courts and the administrative agencies have continued to
provide further legal guidance on the appropriateness standard. For example, in Carter v.
Florence County School District Four, the Fourth Circuit Court of Appeals in 1991 reviewed an
IEP and stated that the district had failed to develop an appropriate program because the
goals in the IEP did not provide "meaningful growth." In this court's opinion, appropriate
meant more than simple educational benefit; there had to be evidence that the child had the
opportunity to educationally develop.
http://www.wrightslaw.com/law/ caselaw/Carter%5FLinks%5 FPage.html.
In 1996, the Third Circuit Court of Appeals ruled in J.C. v. Central Regional School District
that school districts must provide more than a "de minimus or trivial education." Like the
earlier decision, the Third Circuit Court recognized that FAPE means an IEP offers the student
a real opportunity to learn.
http://caselaw.lp.findlaw.com/scripts/ getcase.pl?navby=search&case=/
data2/circs/3rd/961295p.html.
Although these court cases involved school districts outside of Washington State, the FAPE
standards established by the courts are relevant to Washington schools.
http://www.k12.wa.us/specialed/wac/392-172.asp#w035.
In addition to the courts, Congress has given enforcement responsibility to both the Office for
Civil Rights (OCR) under Section 504 and the Office of Special Education Programs (OSEP)
under IDEA. These federal administrative agencies participate in a variety of enforcement
activities that include issuing advisory opinions, letters of interpretations and in the case of
OCR, investigating complaints and conducting compliance reviews. Any party--teacher,
administrator, parent, or student--can make an inquiry to OCR or OSEP and ask for
interpretation and guidance on an aspect of special education. In addition, any party can
make a formal complaint to OCR concerning a denial of rights under Section 504. These two
federal agencies have websites where individuals can find recent information on the activities
of the agencies. The OCR website allows individuals to ask questions and make complaints in
addition to providing resource information. The OCR website is located at
http://www.ed.gov/offices/OCR/aboutus.html#seven. OSEP also has a website that provides
extensive information about its resources and services: http://www.ed.gov/offices/
OSERS/OSEP/.
Several inquiries have been made to and answered by OCR and OSEP that address the
responsibility of school professionals to advocate for the rights of students under special
education law when appropriate services are not being provided. These letters state that
when educators disagree with a parents' position on services for a child with disabilities, the
Copyright © 2005 by University of Washington.
Special Ed Law Quarterly, Bulletin #1
Page 5 of 10
educators may (in the case of initial identification of a child) or must (in case of a previously
identified special education student) report this parental denial of the rights of the child to
the appropriate agency.(4) Although these letters address educators in conflict with parents,
there is no reason that when educators believe a student's rights are being denied by school
staff, they would not also be expected to advocate for the child's rights through filing a
complaint with one of the federal agencies after exhausting internal channels.
The Office of the Superintendent for Public Instruction (OSPI) within the Washington State
Department of Education also has responsibility to monitor compliance with the provision of
educational services to students with disabilities. In addition, administrative resolution of
disputes begins with complaints to OSPI by parents, school districts or educational staff. The
due process procedures include mediation as one option for resolving disputes as well as the
filing of a Citizen's Complaint. Like the federal administration agencies, OSPI is a resource for
both information and the resolution of disputes. Information on the Citizen Complaint process
can be found in the state special education regulations.
http://www.k12.wa.us/specialed/wac/ 392-172.asp#w324.
V. Washington State Administrative Code (WAC)
Most special educators are familiar with the Washington State Administrative Code (WAC)
sections that guide their practice in special education. This includes their responsibility to
evaluate students who may require special education services in order to benefit from public
education, design appropriate IEPs, determine placements in the least restrictive
environment, develop transition plans, etc. A review of all these practice standards and the
applicable WACs are beyond the scope of this bulletin although for those who want more
information, we encourage readers to seek additional resources.
In addition to the special education WACs, the state regulations include a section entitled
"Professional Certification -- Acts of Unprofessional Conduct," found at WAC 180-87. This
section is commonly referred to as the Code of Professional Responsibility and sets forth the
state standards for professional education practice. A failure to adhere to the Code can result
in disciplinary action, including removal of one's teaching certificate:
http://www.wa.nea.org/PUBLICAT/Legal/PROFCOND.HTM.
The Code passage that is of particular interest in solving dilemmas such as
faced by Liz and Jo states that:
flagrant disregard or clear abandonment of generally recognized professional standards in
the course of any of the following professional practices is an act of unprofessional
conduct: 1) Assessment, treatment, instruction, or supervision of students . . . . (5)
In a nutshell, this WAC means that if you know that a student has been improperly assessed
for special education due to funding or time constraints, or if you know a student is not
receiving necessary services, it is an act of unprofessional conduct to flagrantly disregard or
abandon professional standards. Although identifying a failure to adhere to professional
standards that will result in an "act of unprofessional conduct" is not always straightforward,
it is clear that professionals can legitimately disagree on appropriate treatment, instruction
or methods of supervision. Disagreeing with colleagues or making a professional
Copyright © 2005 by University of Washington.
Page 6 of 10
Special Ed Law Quarterly, Bulletin #1
decision that turns out to be "wrong" is not necessarily an act of unprofessional conduct.
Rather, the Code is concerned with those situations where a professional educator knows that
an action he or she is taking or not taking is clearly a denial of what is expected by the
profession. For example, staff are sometimes asked to change the IEP services provided to a
student based upon a request by the district to reduce or restrict programs. However,
changes in the student's program must be based upon the individual needs of the student, not
administrative convenience. To acquiesce to the district's request would violate the individual
rights of the students. Such behavior can result in disciplinary action under the Code.
Although sometimes forgotten by special educators, performing health services
without delegation, training, supervising from a licensed health care professional--i.e., RNcan be "unprofessional conduct" because a certificated teacher has not been given statutory
authority under Washington's Nurse Practice Act to perform many health services unless
certain conditions are met. OSPI and WEA have both developed extensive training materials
on this issue and readers are referred to both for more information:
http://www.k12.wa.us/specialed/document.asp;
http://www.wa.nea.org/PUBLICAT/Public.htm
VI. Professional Code of Ethics and Standards of Practice
Finally, it is important for special educators to know the practice standards set forth by
professional organizations, whether or not they are individually members of the organization
as they are generally considered "best practice." Although professional standards as adopted
by professional organizations do not carry the same weight as legislatively enacted laws,
regulations or other administrative rulings or court decisions, they do set behavioral
expectations and should be considered by special educators facing professional dilemmas.
The Council for Exceptional Children (CEC) has adopted a Code of Ethics for Educators of
Persons with Exceptionalities. The Code of Ethics includes principles of practice that
members of CEC agree to follow. Although the Code is comprehensive, several principles are
relevant to the duty to advocate for special education students as listed below:
●
Special education professionals promote and maintain a high level of competence and
integrity in practicing their profession.
●
Special education professionals engage in professional activities which benefit individuals
with exceptionalities, their families, other colleagues, students, or research subjects.
●
Special education professionals exercise objective professional judgment in the practice
of their profession.
●
Special education professionals seek to uphold and improve where necessary the laws,
regulations, and policies governing the delivery of special education and related services
and the practice of their profession.
●
Special education professionals do not condone or participate in unethical or illegal acts,
nor violate professional standards adopted by the Delegate Assembly of CEC.
Copyright © 2005 by University of Washington.
Special Ed Law Quarterly, Bulletin #1
Page 7 of 10
In addition to the Code, Standards for Professional Practice was also adopted. These
standards include those on instructional responsibilities, management of behavior, support
procedures, parent relationship, and advocacy.
Although we encourage all special educators to review these standards, those on advocacy
are particularly relevant to this bulletin. The CEC Advocacy standards are as follows:
Special education professionals serve as advocates for exceptional students by speaking,
writing, and acting in a variety of situations on their behalf, They:
1. Continually seek to improve government provisions for the education of persons with
exceptionalities while ensuring that public statements by professionals as individuals are
not construed to represent official policy statements of the agency that employs them.
2. Work cooperatively with and encourage other professionals to improve the provision of
special education and related services to persons with exceptionalities.
3. Document and objectively report to one's supervisors or administrators inadequacies in
resources and promote appropriate corrective action.
4. Monitor for inappropriate placements in special education and intervene at appropriate
levels to correct the condition when such inappropriate placements exist.
5. Follow local, state/provincial, and federal laws and regulations which mandate a free
appropriate public education to exceptional students and the protection of the rights of
persons with exceptionalities to equal opportunities in our society.
http://www.cec.sped.org/ps/code.html.
In addition to the CEC, the National Education Association (NEA) has adopted a Code of Ethics
of the Education Profession that has been endorsed by the Washington State Education
Association (WEA). http://www.nea.org/aboutnea/code.html. Although this Code was
adopted in 1975, prior to the passage of the IDEA, it includes general value statements on the
importance of professional standards. In addition to the Code of Ethics, NEA adopts
resolutions yearly that provide specific statements on issues of importance to educators. One
resolution adopted this year addresses students with disabilities. Although the resolution
clearly is designed to protect NEA members, it also declares that students have a right to
adequately funded educational services, sufficient staff training, and decisions made on an
individual basis "rather than on available space, funding or local philosophy of a school
district." http://www.nea.org/resolutions/.
CEC members include professionals from a variety of disciplines in addition to education-e.g., psychologists, speech and language therapists, occupational therapists, etc.--and the
CEC guidelines and standards of practice are also applicable to those professionals. However,
each of these professional disciplines also follow specific standards and codes of conduct. For
educational staff in disciplines other than education who are interested in their professional
standards of practice and code of ethics, information is available from the following websites:
●
American Speech and Hearing Professionals http://www.asha.org
Psychologists: http://www.naspweb.org/pdf/PCMoct2000.pdf
●
Social Workers: http://www.naswdc.org/practice/standards/school.htm
●
Copyright © 2005 by University of Washington.
Page 8 of 10
Special Ed Law Quarterly, Bulletin #1
●
School Counselors: http://www. schoolcounselor.org/ethics/standards.htm
Occupational Therapists: http://www.gwi.net/~maineota/ethics.htm
●
Physical Therapists:
●
http://www.apta.org/PT_Practice/PatientClient_Management/Standards/Standards
● School Nurses: http://www.nasn.org/publications.htm
VII. Guidelines for Practice
Although professionals do not always agree on a particular diagnosis, treatment or
intervention for a special education student, educators are expected to base their judgment
on professional expertise and be able to articulate the rationale used. The decisions
educators make may not always be correct, but their actions should be based on the training
and knowledge they are deemed to have by virtue of their certificate to teach. Therefore,
the issue is not whether the decision is necessarily "right" but whether the decision was made
based on sound professional judgment.
Liz and Jo must each make her own decision about how to resolve her respective dilemma. By
applying the legal and professional guidance reviewed above, they should feel confident in
whatever action they take. In both cases, by advocating for their special education student
they will not only be fulfilling their professional responsibility as a certificated teacher, but
also protecting themselves from potential liability. Both teachers may risk a charge of
insubordination if they fail to follow what could be construed as a direct order from a
supervisor. However, it's important to recognize the risks hey face if they acquiesce to the
principal or special education director. By failing to follow their own best professional
judgment, they risk potentially harming a child, a lawsuit brought by parents or loss of their
teaching certificate because of failure to adhere to professional standards of practice.
Liz and Jo are definitely facing some tough choices--do they confront the school
administration with what they believe to be "unprofessional" decisions that risk the health of
Patty or deny FAPE to Dennis? Do they advocate for the student or, on the other hand do they
bow to supervisory "orders" against their own best judgment? In answer, we offer the
following considerations:
1. When there is dissension among staff and/or withparents, the special education student
rarely escapes the all-out and his or her education suffers.
2. Resolution through discussion with all relevant parties is the most appropriate first step
when faced with conflicting positions. Educators should be sure to exhaust internal
channels of supervisory review such as the principal, special education director, and
superintendent before turning to other options.
3. The reluctance of certificated staff to advocate for special education students when it
means taking a stand against supervisory staff or parents is, undoubtedly, based on the
real fear of job retaliation, or at the very least tense working relationships. Some
educational staff may not be clear on where their responsibility lies--is it with the child or
is it with the district? Although there is not a hard and fast rule, it is clear that special
educators do have the duty to measure their decision making against the professional
standards. And at times--in their individual and their students' best interests--this may
mean taking an unpopular position. Certificated staff must be aware of the risks they take
Copyright © 2005 by University of Washington.
Special Ed Law Quarterly, Bulletin #1
Page 9 of 10
and feel confident in their professional decision-making. If a supervisor tells you to do
something that is against your professional judgment, failure to comply puts you at risk
for a charge of insubordination. In order to avoid a charge of insubordination, ask him or
her if you are being given an order. If the answer is yes, document the conversation and
immediately contact your union representative. Unless you believe your personal safety
or that of the student is at risk, you should comply with a direct order and then complain
if you believe the order was inappropriate or a violation of regulations.
4. The UNISERV representative for your local educationassociation is always an appropriate
contact, as is the WEA special education staff. In addition, the local or state association
can be a very important advocate for you in a particular situation.
5. Certificated educational staff should never perform health/medical tasks for which they
have not been trained and/or do not feel competent to perform. Adequate training is both
their professional right and the law. In an emergency, staff may be required to intervene
if the safety of the child is at risk, but otherwise performing health/medical procedures
that require nursing delegation and supervision is not the duty of certifi- cated staff.
6. When an educator continues to feel that the situation issimply unacceptable, he or she
can file complaints with both state and federal agencies. A 1998 survey of IDEA complaints
filed in the state Department of Educations reports that only a small percentage were
filed by educators.(6) This doesn't seem surprising considering how uncomfortable it can be
to challenge one's own school district. However, when all else fails, this may be the
professionally and legally "correct" avenue for the special educator.
7. Advocating for special education students can involvetaking risks and challenging the
status quo. It may help to remember that special education law itself--ensuring access to
school for children with disabilities--is the result of advocacy by parents and professionals
who refused to stop pushing the system.
In special education decisions, the rights of children as stated in IDEA do not--with very few
exceptions--depend on funding available for services, staff availability, or convenience of
staff. As an advocate for special education students, the law expects educators to ensure that
the child's rights are protected. The special educator is to focus on the student and how he or
she can receive the services necessary to benefit from public education. This may mean that
a special educator - when appropriate - disagrees with IEP team members and/or an
administrator in concert with a family. It may mean the opposite, and an educator may find
him or herself advocating for the child's rights against the wishes of the parent. Hopefully,
the educator can arrive at consensus among the parties. In some cases, when discussion does
not resolve the conflict and the educator continues to believe that the child is not receiving
adequate services, the duty to bring the complaint to another body for resolution is clear.
Recommended Reading
For those who want more information on advocacy, Making a Difference: Advocacy
Competencies for Special Education Professionals (2000) is an excellent source. The author is
Craig R. Fiedler and publisher is Allyn and Bacon, Boston. ISBN 0-205-30629-2.
Copyright © 2005 by University of Washington.
Page 10 of 10
Special Ed Law Quarterly, Bulletin #1
What’s Happening in Special Education Law?
As a regular part of these bulletins, we will 1) provide information on conferences, meetings,
general resources that we think are of interest to special educators; 2) summary of new court
decisions of interest; or 3) other appropriate administrative, legislative activities.

The Autism Center at the Center on Human Development and Disability (CHDD)
provides evaluations for individual students and in-service training to school districts.
Call Dr. Felice Orlich or Dr. Julie Osterling at 206-543-5153.

WEA special education law training
(http://www.wa.nea.org/PRF_DV/SCHD_CLS/CLASSES.htm)

UW College of Education offers Special Education and the Law, Winter Quarter 2001,
Tuesdays 4:30-6:50 PM. It is a 3 credit graduate level course. Call the UW Extension
Office at 206-543-2320 to register; the course is listed in the regular course catalog as
EDSPE 504 or EDLPS 516.

Special Education Advocate, is a free on-line special education law newsletter. To
subscribe, http://www.wrightslaw.com/subscribe.htm.
____________________________________
Herbert, M.D. and Mould, J.W. (1992). The advocacy role inpublic child welfare. Child
Welfare, 70(2), at 118.
(1)
Stoecklin, V.L. (1994) Advocating for young children with disabilities. Quarterly Resource,
8(3), 1-35 as cited in Fiedler, Craig. Making a Difference p. 3.
(2)
Bonney, L.G. and Moore, S. (1992). Advocacy: Noun, verb, adjective or profanity. Impact,
5(2), 7. (4) 17 EHLR 284 (OSEP November 9, 1990), 22 IDELR 252 (OCR March 3, 1994), 22 IDELR
667 (OCR May 15, 1995).
(3)
(5)
WAC 180-87-060.
Suchey, N. and Huefner, D.S. (1998). The state complaint procedure under the Individuals
with Disabilities Education Act. Exceptional Children, 64(4), 529-542.
(6)
Copyright © 2005 by University of Washington.