special education lawyer

Both my daughter and grandson were born within weeks of our school district’s cutoff dates for kindergarten registration, so the issue of holding them back or letting them enroll arose early on in both cases. Then I became a special education attorney after teaching for 20+ years and my perspective broadened based on my personal experience and research.

So what to do about your own “Hayden” or “Brooke” whose birthdays place them as the youngest in their grades through high school?

A child is not merely a chronological age; there are physical, emotional, intellectual and maturation ages to consider. My daughter was the smallest of 100 entering kindergarten, and my grandson was the tallest. My daughter was reading since she was three and my grandson was reading by five. Girls tend to emotionally mature earlier than little boys, so there was that to consider. 

The week before the start of school my daughter was diagnosed legally blind in her left eye, and the doctor instructed us to put on a patch occluding her good right eye for a year. She also had to wear heavy glasses to encourage sight to develop in the blind eye. My grandson had been diagnosed with sensory processing disorder and had balance and climbing issues when he was three. They both live in a highly competitive district, so physical and medical issues entered into our stew as well.

From birth through the beginning of school, the overwhelming number of parents planning to send their children to a school have had physical exams where professionals might call attention to warning signs during development, or the parents might bring issues to their doctors for evaluation. We’ve heard countless stories of pediatricians calming nervous parents with the observation that “Hayden” will outgrow his issue, or “Brooke” is just going through a normal phase. Many times they are correct, but often they err.

Into this constantly changing developmental picture comes a federal program known as Child Find, which is part of a larger and important law known as the Individuals with Disabilities Education Act, or IDEA :

• Child Find is a legal requirement that schools find all children who have disabilities and who may be entitled to special education services. • Child Find covers every child from birth through age 21. • Your neighborhood public school must evaluate any child that it knows or suspects may have a disability. https://www.understood.org

Infants and toddlers are covered, and the evaluation may pick up early indications of the need for special education and related services such as counseling or speech therapy. Some parents and guardians welcome such early intervention, yet others may fear the perceived bias that might attach to their child if labeled in need of special education.

Parents who object to screening and fear stigmas of labeling are often concerned about lowering the child’s self-esteem, especially if it means needing to go to a special school or sit in a special classroom away from friends. My daughter’s elementary school put the brightest first graders in Class A, and the special education students in Class G. How long do you imagine it took the 100 kids to rank one another and single out the “dummies”?

There is also a fear of learned helplessness, which I have seen as far up the grades as high school, where students have become accustomed to watered down homework and assessments, and continually looking for me to help them with their lessons. Even teachers and parents can add onto this learned helplessness with lower expectations. One of my students became angry with me when I congratulated her in getting a C+ on a test. Finally, there is the peer issue which can begin quite early, especially in competitive areas. My daughter’s classmate demanded to see her standardized test score from a kindergarten assessment.

On the other hand, there is no doubt that early detection of learning handicaps of any nature benefit the student and the family. Thanks to the 2004 IDEA Act, students can become eligible for specific accommodations during the entirety of their education to deal with their unique needs. And the longer I’ve been in education, the more unique needs we discover. A child with a plan or accommodation will receive extra learning support at their own pace, which reduces anxiety and feelings of lower esteem. This support should never be “one size fits all”, but rather targeted to the student’s unique needs.

Now back to the issue of repeating kindergarten or “redshirting” a student to give “Hayden” or “Brooke” time to mature. Some school districts have junior kindergartens, or a “fours-plus” class which permits students to ease into a traditional school environment. I recall the dreaded “scissors readiness test” which determined if your child was ready to proceed to kindergarten. Let’s say that “Hayen” “can’t cut it”, so to speak, in May, so he is told he’s not ready to move on. Yet with rapid childhood development, he might be shredding entire newspapers by the “cut-off” date.

U.S.News examined this issue:

“Only about 6 percent of children are redshirted, a number that's been relatively consistent for the last 15 years or so, according to Diane Schanzenbach, an economist who coauthored a 2017 study on redshirting.

But among boys and those with educated parents, the rate is higher. College graduates are almost twice as likely as high school graduates to redshirt their sons. Schanzenbach's study showed nearly 1 in 5 boys with summer birthdays and college-educated parents were redshirted in 2010. (One reason may be that it's mostly higher-income families who can afford to keep their children in preschool an extra year).

Dominic Gullo, a professor of early childhood education at Drexel University who studies the long-range effectiveness of prekindergarten and kindergarten programs, said that for some parents, it isn't an academic "readiness" issue, but rather they are trying to right personality traits they believe are obstacles to success.”


The article mentions that even years later, these decisions weigh on parents’ minds. I did not keep my daughter behind, and spent wakeful nights ruminating about my choice. She was the youngest and shortest of 100, and had a severe visual handicap. But this was prior to both Child Find and IDEA, and she was so bright I didn’t want her to become bored. She suffered through the early years owing to severe teasing of her patch and glasses, and eventually we put her in a wonderful private school. She was admitted to her college honors program, graduated Phi Beta Kappa and summa cum laude, and is now a successful trial attorney.

To guide parents in making this important decision, it helps if they know what their school district expects of incoming 6 and 7 year olds. These requirements should be posted on the school’s web site.

Understood.org has a chart that I use with clients to assess how their “Brookes” rate in the required skill sets to enter kindergarten and to rise to first grade. Amanda Morin wrote a great article there on “Academic Skills Your Child Needs for First Grade,” and I have parents go through each of them to see how ready she might be. Some systems evaluate their kindergartners to see if they are ready to be promoted to first grade, and might label “Brooke” “at risk” for academic failure. What’s a parent to do then? There are many serious studies on line about kindergarten retention policies. Put simply, the vast number of them oppose kindergarten retention. If “Brooke” is labeled “at risk” of academic failure, there must be concrete reasons articulated, and it is then time for her parents to ask for an evaluation under IDEA. What might be underlying, as yet unidentified, hurdles to her learning? Those need to be addressed. Retention in kindergarten, most of the studies conclude, is a policy best called “repeat to fail.”

What did my daughter decide to do with her son? She “redshirted” him! Why? Because, after speaking to my high school teaching comrades, they advised her that their sons didn’t want to be the last of their cohort to drive a car.

In the end, you look at the hand you’ve been dealt, and do the best you can.

Lynne D. Feldman, Esq. "Nevertheless, she persisted"