In the nearly 10 years that I have been representing children with special needs, the question that comes to mind most often is–why do schools act the way they do ? Mostly the mental question is an effort to probe the myriad ways that schools conduct themselves in violation of the law, but paradoxically believe, often sincerely, that they are acting in accord with the law. The answer is that custom more than IDEA, 504, or any state law or set of regulations determines the schools actions. Which is not to say that real promulgated laws do not intrude on the actions of the school because that would be untrue. Custom, however, transcends any revisions in the law and continues to explain, at least in part, the actions of schools.
Custom is defined in Webster’s dictionary as "an old and general usage that has obtained the force of law," another equally telling definition is a "habitual practice of a community or people." Schools undoubtedly are a community of individuals who have a habitual way of doing things which have obtained the force of law. The application of this statement is a daily part of my practice.
As one example, last week I represented a family of a 3 year child with autism who was in a special education self-contained program with staff that supposedly had expertise in working with this child and his peers. The parent called me because she discovered that her child had been restrained in a chair with seat belts during "circle time" because he would not sit for the 20 minute duration of this activity. The school did not make any real effort to hide the chair or the fact that they used the chair regularly. The teacher openly admitted it, and in fact had a picture of the child in restraints in the chair on the bulletin board. Illinois has a set of regulations that have been law since 2002 prohibiting the use of this kind of restraints. At the IEP meeting, that was called to demand accountability, the shocked looks on their faces was remarkable. The teacher stated that "he liked using the chair" even when confronted with blatant illegality of her actions. She could not explain, however, why he had bitten staff on more than one occasion when being seated in the restraint chair. Cognitive disconnect is one explanation; for me this is one illustration of custom. The school and the staff had apparently been using restraints like this for some period of time. It was part of the normal operations of this program, no matter that for over 4 years it was illegal. Something illegal that had become a habitual practice for this community of people (school program) that it took on the force of law, even when it contradicted the actual law.
When my son was in preschool we ended up in due process with the school district because they would not send related services personnel onto the campus of an LRE preschool that had some religious content as part of the program. The special education director quoted the law to me, and when dared wrote down the following words: "it is illegal to send school related services personnel onto the campus of a preschool that has a religious affiliation." Of course this statement is totally opposite the law as the Supreme Court stated in the Zobrest case many years prior to this meeting. The special education director was not a novice, was not stupid, and was not lying. He sincerely believed that he was totally right. No one had ever challenged his habituated belief that had hardened into custom over a period of years, and rose to the level of having force of law, although based upon nothing more that his notions of law over time.
Schools regularly say things like "we do not give more than 30 minutes of speech services" , "no one in this district gets a 1:1 aides since the board meeting several months ago," "we have never allowed children with diabetes into this school," or "I am so glad that I do not have to accept children with IEPs into my general education class"; all of these statements are real and have been said to a client, written on an IEP or declared with me present at a meeting, despite longstanding norms to the contrary established for more than 30 years in IDEA. Misplaced ideas get planted, go unchallenged over time, thereby nurturing the false belief and before too many years go by, and it is has a full blown perception of having the force of law. Quite remarkable really and the examples are endless.
So what is the antidote for this customary thinking and acting on the part of schools ? He are some pointers:
- Ask the question that haunts first law students–what is your authority for that statement, declaration, prohibition ? Demanding the underlying law, regulation, policy or rule has the tendency to knock over the house of cards built on a foundation of custom;
- Develop a finely tuned ear and awareness of the fact that a lot of what passes for "the law" in schools is nothing more than a habituated perception of the law that school people regard as having the force of law;
- Many schools operate in a state of near ignorance of the actual law, especially with IDEA having recently been revised. Reading a few key provisions of IDEA 2004 will put you far ahead of the actual knowledge of many school people. Custom tends to insulate school people from any real need or desire to study and learn the actual law.
Viewing schools through the lens of custom will explain a lot of things that up to now may have been inexplicable. By no means does it excuse ignorance, but understanding what animates these wrong-headed beliefs will go a long way towards rebutting the positions that schools take at IEP meetings and in other settings.