Podcast Episode 14: Education Issues in Family Law

21 JunPodcast Episode 14: Education Issues in Family Law


Episode 14: Melinda Eitzen discusses education issues with George Shake

Melinda Eitzen: [00:00:00] Hello, welcome to the DFW divorce, insider podcast, answering all the questions you didn’t know you had about family law and today education law. I’m your host, Melinda Eitan. And for our 14th episode, we’re going to be discussing education law, our guests today’s George shake. How are you doing George?

George Shake: [00:00:26] Good afternoon. Thanks for having me. I’m doing great.

Melinda Eitzen: [00:00:29] So George is my partner and he works at our firm and he does family law like we all do, but he also has this wonderful education law practice. George, tell us a little bit about education law.

George Shake: [00:00:44] Of course. I’ll start by explaining, some areas that I do not work with, because other people have experience and expertise that I refer to. And so there are times where education employees feel like they need legal counsel and there are great employment attorneys that specialize in that. And that’s how we take care of those folks. I’m, I’m really representing families and students with education issues. And I’ll tell you there’s a wide range of those issues.

Melinda Eitzen: [00:01:16] I bet.

George Shake: [00:01:17] So some common, some common concerns that parents have are regarding their child is, is going to be disciplined at school that that could be very concerning and they want to make sure that everything’s being handled properly. Another common example would be parents with a child with disabilities, and there are many questions and concerns that could come up with that.

And then a host of other issues such as. Truancy, children’s ability to participate in extra curricular activities, graduation requirements. And of course in this last year and a half, many, many unique concepts came our way with COVID and children doing distance learning in mass.

Melinda Eitzen: [00:02:03] Okay. So you mentioned a lot of good areas and I want to dig into some of those, but first I want to ask, does this apply. Only the public schools or public and private.

George Shake: [00:02:15] That’s a great question. And really we’re talking about two very different areas of law because for private school students and that’s from daycare, pre-K all the way through graduate and professional schools.

If that’s a private school, we’re talking about a contractual relationship. Just as if we were talking about a consumer and a company or some other type of contractual relationship, there is advocacy for sure to be had for those types of students, but it all exists in a very long standardization of contractual law.

That is not as complicated. And there are no independent rights outside of the country.

Melinda Eitzen: [00:02:58] Okay. So probably this comes up more in public school. Is that true?

George Shake: [00:03:03] Far more, we have parents that are choosing to place their minor children in the local public school system. And because it is governed by state and federal law, there are a tremendous amount of regulations and rules and rights that come in.

Melinda Eitzen: [00:03:21] And are we talking about K through 12 or are we also talking about college?

George Shake: [00:03:27] Another great question. And so we do use the term K through 12 and family law, and we all know what that means, but strictly speaking, local public school systems have obligations to children starting on their third birthday.

Now that obligation only pertains to children with disabilities, but of course, that is an area where I spend a lot of time. And when we talk about 12th grade, most of us are imagining that 18 or 19 year old that we know or have known. But again, with special education, those obligations on the public school can go through a child’s 21st year that they’re in school.

And so there are students that have as many as 18 years of public education and it comes with all the obligations and rights.

Melinda Eitzen: [00:04:18] So why would a family possibly need a lawyer to help them if they have a special needs kid? What is it that they’re trying to get help with? Give us an example.

George Shake: [00:04:29] You bet. There are some very common categories that really make up most of my work in this area, a very common issue is a child qualifies for special education. And the educators and the parents have come together to create a very individualized education program for that child. But they’re not in agreement on what the program should look like. And those programs have so many elements to them.

It’s really not surprising that a group of six or eight people don’t always come to a perfect agreement on what it should consist of. But there are times where the district’s aligned against the parent with a specific request, whether it’s a type of therapy or service, or, having teachers with certain certifications or certain materials or technology, and the parents have researched their rights and find that the school is not responsive to their requests.

Melinda Eitzen: [00:05:27] So George, I know that before you were a lawyer, you had a job where you worked in the schools, is that right?

George Shake: [00:05:34] That is true. And I’ll tell you the few people that do what I do often have that in common, because this is such a highly regulated area of law and life. That those of us who used to be school employees certainly see how we could bridge between the families in need with our previous experience.

My experience was that of a licensed specialist in school psychology. So I practiced psychology in public schools, and that includes evaluating children, counseling, children, training staff. And I did that for 15 years. And I will say that has informed me far more in my practice of education law than any of my legal training.

Melinda Eitzen: [00:06:17] Yes. And I’ve heard before people say that school has an obligation under the law to accommodate the child. What does that mean? What do we mean accommodate

George Shake: [00:06:28] it is absolutely one of those buzzwords. As family attorneys, we listen for that- when we hear parents talk about accommodations, we know they’re discussing something related to a child’s disability.

And so we have two massive federal laws that address this the first should be well known to most of our listeners. And that’s just the Americans with disabilities act. We are not permitted to discriminate against people for their disabilities when we’re dealing with public agencies, such as public schools.

And so that’s the first step that we say. You know, we, we just are not going to tolerate any type of discrimination. And so in order to ensure that a child with disabilities is not discriminated against a committee is formed and they talk about what does this child need. If it’s a child in a wheelchair, they may need the elevator key.

They may need more ramps. They may need door handles lowered in, on school building and we work on those issues. But if the child. Are greater and they qualify for special education. We are looking at every aspect of the child’s day in school, what books they use, what resources they use, what teachers they have, what classrooms they attend.

We have to mold the school system around an individual child to meet that child’s needs. And that’s the federal mandate that came out in 1974 with a federal law saying you cannot deny an education to a child because they have disabilities.

Melinda Eitzen: [00:08:10] So I remember a story you told me once I thought was such a great example of this.

There was a child with some profound, profound disability and the child was in a wheelchair and would hit, I think I can remember it was a girl or boy. She would hit herself and they had trained a Labrador, a dog to help her. And one of the ways the dog helped her is to get between her arm and herself had not, you know, let her harm herself and, you know, spend a fortune training this dog I’m sure.

So they bring the dog to school on the school, says you can’t have that dog here. And the family hired you. I think it took one phone call and guess what? The dog got to go to school.

George Shake: [00:08:57] One of the great things about working with these wonderful families is that they are on the cutting edge of what we need to be doing for kids with severe disabilities.

And that’s right. This is a perfect example of a family taking care of an issue that was going to have a wonderful and positive impact on this child in school. And her classmates and her teachers, because they had proven time and time again, that this dog’s training was working. I observed it myself and the school was concerned about who was going to take the dog out for walks.

And luckily, this is one of those occasions where the school’s attorney was able to hear the concerns of the parent through me and absolutely agree that that was not going to be the obstacle to get this child, the programming she needed because a child in school who is habitually harming themselves.

He’s not learning and is disrupting learning of others. And the solution was being provided by the family at no cost to the school. And luckily we resolved that one very quickly, and that family was thrilled to go on to the next school year with that dog in tow.

Melinda Eitzen: [00:10:05] You mentioned that student discipline. So I think that could also come up in school athletics with coaches and maybe coaches. Over training the child, the child in a disciplinary manner. Is that something that would be included in the realm of what you do

George Shake: [00:10:27] it is, and we’d like to think the best of our public school workers and employees- they’re civil servants. And I was raised to respect folks that work in schools and I do. And, you know the old saying – some of my best friends are educators and that’s true. But school districts can be like small cities and some of these school districts. 5,000 and more employees in all kinds of areas. And so, because we’re human people do make errors. There’s some people that aren’t trained properly or have problems and people send their minor children to these institutions and presume that they have a safe environment. And unfortunately we do have students that receive pretty significant injuries. And it’s so serious that this issue is one of those few exceptions where a school might be liable for a lawsuit or its employees might be viable for a lawsuit, which is rare for government agency to be sued because these employers, these employees who supervise the children that get seriously injured are often either outside of their scope of employment or there’s a negligent aspect, or unfortunately with coaches, sometimes it’s a form of discipline. Here in Texas, we have all heard about these two days and three days out in the summer heat for these football kids, with their equipment. And we have kids passing out and dehydrated, and unfortunately the injuries have gotten so serious where there have even been a few fatalities. And so we are educating parents in every way we can to communicate with children and with the coaches about these safety conditions.

Now, one thing that’s helped for security reasons. Schools have put in place many, many security cameras. And so families are becoming more and more savvy about asking to view videotape, and they are faster to look into the possibility of hiring an attorney who can advocate for their rights in those situations. You know, many times people hear about a football player or a cheerleader case, and they roll their eyes because they think it’s a helicopter mom or dad insisting that a child play on the football team or insist that they’re on the cheer squad.

And unfortunately, those are usually not the cases that we have. We have cases where children have been bullied, mistreated injured, harassed, and that can result in so many issues for a young child. And so we have children that are depressed and anxious and occasionally suicidal or their grades plummet, when this was a child that was bound for wonderful college experience. And so we’d like to move quickly and stabilize the situation and see what we can do to support the kids through a difficult relationship.

Melinda Eitzen: [00:13:33] So you make a good point that you sure don’t want to wait too long and have it be a really horrible situation that you can’t resolve because the child has died or something serious has happened to the child’s health.

What tips can you give to parents of things to look out for warning signs? In any area of education, law, warning signs that they should be aware of and should cause them to get more education about their rights.

George Shake: [00:14:02] Certainly. Because we work with children that are so young and children that have disabilities and children in these competitive sports at a certain age, parents, I think stop looking for marks or bruises on children coming home from daycare. I think parents of young children are familiar with that, but these older kids, these athletes do have injuries. And when the when a teenager kind of poo-poos it and says, oh, you know, it’s just practice it’s okay. Unfortunately, sometimes we don’t use our adult judgment to examine if this is a serious injury. So that’s my first piece of advice is, is really pay attention to your child’s physical body, as much as you can with those annual physicals and discussion of injuries and really figure out exactly how it occurred.

And sometimes that may require a follow-up. Email to the coach and the principal, just to inquire as to what occurred. Unfortunately many of these teams feel that they have to take this burden on themselves and they don’t want their parents help for a number of reasons, but we could still, we still can observe changes in them that signal that. Changes can easily be seen in changes of appetite, or changes in sleeping patterns. And again, a massive increase or decrease in sleeping. They could lose interest in things that normally bring them joy, whether it’s other sports or activities or with family or friends.

And speaking of friends, children who are in distress often stop spending time with their good circle of friends that the parents have known for years and become isolated, or they switch peer groups altogether. And the near peer group may have some characteristics that as parents, maybe we wouldn’t be so comfortable with whether it’s alcohol, drugs, and tobacco or skipping school and failing classes. Any massive change in a child’s daily life is worth exploring.

Melinda Eitzen: [00:16:14] That’s great advice. I think, you know, historically people didn’t think children could be depressed, which is so silly. When you think about it, they can suffer from depression, whether it’s situational or clinical depression, just like an adult.

George Shake: [00:16:31] Yes. And I agree that historically, as a society, we were slow to take this information and children really did suffer. And unfortunately, you know, in a public school system where sometimes the schools are overcrowded. Sometimes a given classroom may have some pretty significant behavior issues with other children, a quiet child. We used to call them wallflower. Children could easily slip through the cracks as a child who have a certain type of ADHD where they just struggle to pay attention, or you shut down a very anxious child.

A child that’s severely depressed, even children that have some form of mild autism or pervasive developmental disorder that are compliant and quiet. And that’s often such a blessing to a teacher in a busy classroom. It could take years for people to realize that we’ve got a child who’s sick.

Melinda Eitzen: [00:17:30] You mentioned earlier that one area that you have been serving families in is surrounding this whole distance learning.

Tell us more about that.

George Shake: [00:17:41] Boy have we learned a lot in this last year and a half.  I think our listeners can relate to the changes that have occurred in their lives and the introduction of a constant use of technology and a physical distancing. But as adults, I think that we have been using some of these systems and, and understand the transition and we also modify it to meet our needs.

Unfortunately, school children really don’t have any of that on their side. They don’t have the previous experience of distance communications of accountability through video cameras and to separate a young child from physical interactions with other children has turned out to have massive negative consequences all over the world.

So tying back to a previous topic, childhood depression has skyrocketed, childhood obesity has skyrocketed, grades have plummeted for many children all over the world, especially here in the U S and Texas, where we know what’s going on. So the issues have been surrounding these children about whether they should go back in person when they should go back in person.

And how do they tolerate all the safety provisions in the school? So as adults, we, we have chosen to wear masks when we go out in public and other places, when children go to school in person, they’re wearing a mask for sometimes six hours straight. And that is not anything that we contemplated when we talked about whether the children should do distance learning or in-person learning — many problems have arisen for certain families.

They’re not getting the same level of interaction with the teachers. They’re not getting the same level of instruction. The grades aren’t as easy to understand by the student and the parent from the distance learning version. They’re having to use many forms of software to try to figure out what the child’s assignments are and how they’re being graded.

And so those are just some of the, some of the issues that have challenged children that we’re trying to assist.

Melinda Eitzen: [00:19:49] George, what have we not talked about that we should be talking about that falls into this purview or tips, additional tips for families?

George Shake: [00:20:00] Well, you did mention college earlier. And so I will say, we have students of public universities and private universities and professional schools and technical schools calling us every week for help. They have issues with graduation, with distance learning with disabilities. And so, uh, we bring the same skill set to those students that we do younger students.

So if they’re public institutions, we have more rights and the school has more obligations. If it’s a private institution, we have contractual relationships.

And so if our listeners know young adults and returning adults who seem to believe something’s not right with the institution, their graduation, graduations being delayed, a professor’s mistreating them, we take those cases and we help our clients through that.

As far as other issues with young children, I would say, here are some tips that I ask people to look for: Is a child’s reaction noticeable around certain adults in the building or when a parent brings up that adult’s name. It doesn’t have to be anything terribly sinister, although it could, but often there’s some type of issue between your child and an adult in the school and your child doesn’t know how to address it or ask for help.

And so whenever a child shows some resistance to talk about a certain adult or some unpleasant response, when you mentioned adult’s name, I would ask our listeners to please, gingerly look for that opportunity to ask your child for a little bit more information. And if you’re careful about the context, ie not in front of a group of friends. Car rides, I find, are a great time to check in with kids. Like, “I was wondering how you and Mr. John Johnson got along.” And if the child gives you some information, I’d say you want to explore it. Another set of tips is very specific to parents of children with disabilities, who have agreed to allow their child to participate in special education.

Those families attend a meeting at school once a year to discuss that child’s education plan. So a lot of family attorneys know about something called an ARD meeting. It’s a meeting of the professionals and parents to plan for that child. Those meetings are filled with professionals with decades of experience and the parent can’t match that level of expertise.

And they’re given a document that could be 25 to 40 pages, long written in eight point font. And I I’ve counted. There’s thousands of bits of information on that long document and the parent is told some of that information orally and then handed that document to sign and that signature for the parent means they agreed with every one of those thousands of decisions that were made on the pieces of paper that the parent barely understands.

And so I have been asking parents for going on 25 years, if they feel like they don’t understand a small portion of it- to please take the document home, review it very carefully, make sure they understand it before they sign their agreement. You know, people sign mortgages and car notes that are easier to understand than some of these special education plan that parents were provided with a moment to review before their signatures are requested. And so like so many areas of life lawyers are telling us, please read it before you sign it. And that certainly is true for parents of kids with disabilities.

Melinda Eitzen: [00:23:52] And that’s something that someone like you could help them with is understanding that document and determining if there needs to be more advocacy on behalf of the child to change it.

George Shake: [00:24:04] Correct.  That’s exactly right. You know, these plans are a bit formulaic. And so because of my 15 years in the school, and now my nine years as an attorney, I have literally seen thousands upon thousands of these plans. I know what to look for, the important decisions, what language is supposed to be there, what the law requires.

And I can educate a parent very quickly on some changes that probably need to be made for their child’s benefit. And certainly at bare minimum, I explain these plans to the parents so that they understand that the plan being offered on that day and all future plans.

Melinda Eitzen: [00:24:40] Anything else, George? We haven’t talked about that we should.

George Shake: [00:24:44] Well, you know, I do like the opportunity to talk to the public, I do like to bring attention to something that we call the school to prison pipeline. And this is a pretty hot topic for the last decade across the country in Texas. There’s a group called Appleseed and they’ve really been gathering data and looking at this issue.

Unfortunately what we have been seeing over the last couple of decades, is a system where school officials are no longer able to exclude children and punish children the way they used to. So many school districts set up a police department within. Whether they set up their own police department like local Dallas ISD has its own police department, or more often it’s a venture with the local police department that assigned school resource officers or safety resource officers to the schools.

And so now instead of breaking up a fight or addressing a belligerent student, a principal might just ask the police officer to address this. And so we have school children engaging in behavior that school children have always engaged in that has produced results, as ridiculous as five-year-olds being handcuffed and put in the back of police cars.

And so there are children that are being mishandled and mistreated and put into juvenile detention system because a police officer wants to do favor for a principal or observes something that the teachers used to be able to handle, but the police officer feels like they need to handle. And, unfortunately these juvenile detention centers all over the country have been privatized in many areas.

So there is a bit of a financial incentive at various parts of the system to fill those centers. So when a juvenile judge is aware that the center has room, children might be more inclined to be sent to detention rather than at home with a probation officer. And so the number of children that we are seeing that are arrested on school property for behavior that most people would not view as offenses worthy of police intervention on any level. And these children have juvenile records and they have to go in and out of court. Then unfortunately they have that hang over them for a period of probation. And there are school teachers and administrators and coaches that have the probation officer’s on a speed dial- so if the child so much is walks the wrong way in the hall, they could be in an orange jumpsuit for the weekend because the principal felt like they needed to be taught a lesson. Now, these are extreme examples, but I honestly can’t say that they’re rare. The reports are regular about children being removed from the school by police for behavior that most of us would consider to be totally age appropriate and could be, and should be addressed by the school and the parent.

Melinda Eitzen: [00:27:49] That is so scary. So what’s the advice on that?

George Shake: [00:27:54] Well, most young parents are not familiar with some basic rules in school buildings. And so I ask parents to please read that student code of conduct that they receive at the beginning of each year. There are children that are being removed in school for having vitamin supplements in their pockets or Tylenol or some type of basic medication that a parent would trust the child with. And the rules are clear-  they could be removed from school from having that type of substance.

A lot of young kids that are in Scouts or maybe living in rural areas have been trained and trusted with the use of a pocket knife or some type of instrument like that for their daily use at home. And they have these knives in their backpacks and their pockets. Some of the older guys have them in their trucks and it’s a zero tolerance policy. And so these good, good kids who have knives, just tools of their lifestyle, can be removed from school. Those are just some of the examples of rules that parents aren’t familiar with until it’s too late.

So I ask parents, please read that code of conduct. Also I ask parents to talk to their children every year about how to respectfully respond to an interrogation at school. Parents have no right to be notified if a school administrator or police officer is interrogating their child. This has gone to the United States Supreme court, and it’s a closed issue.

This means that children have got to be prepared when they are called out of class when they’re called to the office and they are being questioned by an authority figure to respectfully say, can we please call my mom or my dad or my grandma? They told me we had to call them. I don’t mean to be disrespectful. Can we please call?

And we’re teaching these families to get their children to say that over and over. Because we have heard stories of children in small rooms with two and three adults, including big football coaches, police officers, a video camera surrounding a child for two, three, and four hours at a time with no notice to their parents. And so it’s the children that argue or try to comply or try to write a statement that the adults are pressuring them to write that really, unfortunately makes it difficult to help them. And they did it because they wanted the experience to end.

So the child who’s empowered to know that they don’t have to participate in those investigations without their parents fare far better.  I spread that message every time I talk to professionals and parents- you have to educate your child on this during their entire adolescence and young childhood, even through the college years. They’re either calling their parents or when they’re older they’re calling an attorney if they’re being questioned by authority.

Melinda Eitzen: [00:30:51] That is great advice, George, thank you so much for being with us today. You’re doing such great work to help children and families and in such an important way so they can have the best educational experience possible.

George Shake: [00:31:06] Well, thank you. I love what I do, and I really appreciate the opportunity to talk about it with our listeners.

Melinda Eitzen: [00:31:11] Thank you all for tuning in and come back next time for episode 15.

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