A Conversation with Allison Hertog,
Special Education Lawyer

November, 2012

Allison Hertog

As special education lawyer Allison Hertog can tell you, it’s not easy to struggle with learning, especially when you set your sites on a career as a lawyer. To get where she is today took plenty of determination and hard work, especially without the benefit of a diagnosis and with few to no accommodations at school. In this edited interview with 2e: Twice-Exceptional Newsletter, Allison describes her learning challenges, how she coped with them, and how she helps students with similar challenges today.

Q: What learning challenges have you faced and when did you become aware of them?

A: Dyslexia and attention deficit, although neither was diagnosed when I was a child. My difficulties started in first grade. Then I had to repeat second grade. The school psychologist told my parents that I had trouble getting the concepts and would never go to college.

Q: What kind of help did you get at school?

A: I was put in resource where I got one-on-one and small-group help for reading and math. But things didn’t improve until I was mature enough to learn how to compensate for my disabilities. Part of learning to compensate was working much longer hours than others because I read very slowly.

Q: How did you feel about the struggles you faced in school?

A: I felt misunderstood. I thought that people always underestimated me. Over time I became aware that I had greater potential than I could demonstrate, and that was frustrating.

Q: Did you think your difficulties were due to a learning disability?

A: No. That never came up. Because my brother had behavior issues, he was diagnosed with AD/HD; but since I wasn’t like him, no one thought I had any sort of disability.

Q: When did things start to change for you?

A: When I was 16, I went away for the summer and met people who attended a private school. They loved it. I couldn’t imagine loving school. I was in remedial classes in high school, which were quite boring. As a result, I’d become disaffected and demoralized; and I was starting to go down the wrong path. So I told my parents that I wanted to go to a private school. As it turned out, the smaller classes made it a better environment for me, and I was better able to advocate for myself there.

Q: How were you able to handle the workload in high school and college?

A: Computers made an enormous difference for me because I had difficulty with handwriting, and I knew I shouldn’t take classes heavily loaded toward reading. I used audiobooks, and I worked longer and harder.

I had something to prove. I knew I was capable of a lot more, and I wanted to prove wrong the people who didn’t believe I was. I got a bachelor’s degree in psychology and went on to get a master’s degree in special education — because I knew I had a brother who needed it. I taught for a couple years but decided that I wanted to be an advocate, so then I went to law school.

Although I liked learning about the law, the first year was horrible. I did nothing but study and almost dropped out; but with a lot of support from my husband, I made it through. Maybe I wouldn’t have if I thought I was disabled.

Q: What should parents of 2e kids know about the law?

A: They should be familiar with two federal laws: IDEA (Individuals with Disabilities Education Act) and Section 504 of the Rehabilitation Act of 1973. The latter is a civil rights law and a precursor to the Americans with Disabilities Act (ADA). Section 504 is the more important one for many 2e kids in grades K through 12. In 2008 the ADA was amended and the legislative history included language to the benefit of high-achieving students with disabilities. Then, in 2011, the Department of Justice wrote regulations for the ADA which state that high-achievers may still be considered disabled and get the protections of the ADA under certain circumstances. For example, having average or good grades doesn’t mean that a student is not disabled under the ADA.

The other law, IDEA, is a special education law that often does not provide rights for gifted/LD students — only if their educational, speech, behavioral, or social skills performance is demonstrably below state standards. If their performance in those areas meets or exceeds state standards, these students are generally not entitled to an IEP (Individual Education Program). [For information on IEPs and 504 plans, see “IEP vs. 504 Plan,” in the January, 2009, issue of 2e: Twice-Exceptional Newsletter.]

Q: When parents and the school are not seeing eye to eye concerning a 2e child’s education, when should the parents consider hiring an attorney?

A: Their first steps should be to work with the teachers and the school administration, and to make the school aware of any diagnoses, particularly medical or psychiatric diagnoses like AD/HD or anxiety. An additional step is to have an evaluation done of the child to identify the source of school struggles. The school can do the evaluation at no cost to the parents, but the fastest way is often to do the evaluation privately and then get it vetted by the school district.

It can be hard to get the school to help a child who’s getting good grades. School personnel may not understand that they’re dealing with a disabled student, even if the evaluation indicates that the child has learning difficulties. Parents in this situation are entitled to ask for a 504 plan, which can provide for accommodations at school. If the school refuses to give the child a 504 plan, the parents should get that refusal in writing and then seek the help of an advocate or an attorney.

Because there’s no federal funding attached to 504 plans, there may not be much motivation on the school’s part to put one in place — even though, for the most part, it doesn’t cost anything to give accommodations. Unfortunately, public schools can be very entrenched systems with little incentive to do the extra work to help a particular student.

Q: What kinds of costs are involved in taking legal action? Do parties on both sides pay equally?

A: It can be a very expensive process which most parents can’t afford. Plus, some hearing officers are more likely to rule in favor of the school district because they may not know much about special education. I don’t often recommend that parents litigate in my state, Florida. Instead I try to resolve issues at the school level, where my special education background helps. Many times the issues can be resolved at that level; or it may take going above the school level — to the regional level or higher, depending on the state — to get matters resolved.

In terms of who pays, if you win (you are the “prevailing party”), the other side pays the attorney fees but not fees that experts might charge to testify on your behalf. In the district where I often practice, even if you win, you may still have to go to federal court to get a court order to get the other side to pay your attorney fees.

Q: One of the issues you work with is helping students get accommodations on standardized entrance exams, a challenge for many 2e students. Can you describe what’s involved in that?

A: You have to show the testing board what students are doing to compensate for their disability. It’s important to apply ahead of time for accommodations because it can take about seven weeks for an application to be reviewed; although if you work with an attorney, it may go faster.

The students with the best chance of getting test accommodations are those identified as having learning issues — the earlier in their school career they’re identified, the better — and those who have an IEP or a 504 plan. If there’s no plan in place — for example, if a student attends a private school — or there’s no diagnosis, then it’s necessary to assemble a documentary history of need — compensatory strategies and informal or formal accommodations that have allowed the student to perform well. Parents often can come up with something, including quotes from teachers, when they look through their files. When I’m working with parents, I help then place that history in the legal context of Section 504 of the Rehabilitation Act and the ADA.

Q: 2e students can also have difficulty getting accommodations in Advanced Placement (AP) classes. Have you been able to help students get what they needed to be successful in these classes?

A: Yes, by using Section 504 and the ADA, including a Dear Colleague letter that the U.S. Department of Education wrote in December, 2007. It states that students in advanced classes may still be disabled under the law and entitled to accommodations in school.

Q: What words of advice do you have for parents whose 2e children are not getting the help and support they need in school?

A: It’s so important to get a comprehensive psycho-educational evaluation for your child from someone who really understands twice exceptionality. I can’t help families very much unless they have evaluation results showing a disability.

Also check to see what help might be available through your state. Florida was the first state to make available special needs vouchers for private school. A private school, with a smaller class size, can be a godsend and can change the course of a child’s life. Several other states offer similar programs — Georgia, Louisiana, Utah, Ohio, and Indiana for instance. Mississippi offers a voucher program just for dyslexic students.

Q: What words of advice do you have for the 2e children?

A: They need to understand they have a disability and that they’re not stupid just because it takes them longer to do something than their peers. There’s a reason why they can’t perform as well as they think they’re capable of performing. And they need to learn to advocate for themselves.

For more information on the services Allison Hertog provides, visit her website and blog at MakingSchoolWork.com.

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