Q & A with Allison Hertog, Esq, Student Rights Attorney

October 2024

Written by Amanda M. Bettinelli, Edited by Ali Aalaei

On March 19, 2023, I had the honor and privilege of interviewing Allison Hertog about her Los Angeles-based work as a lawyer specializing in disability services in public school education.  California’s public schools are composed primarily of students of color, sixty percent of which qualify for free and reduced-price meals. The pandemic, and its aftermath, has forced Americans to take a closer look at education system and to contend with the disproportionate impacts that the remote learning environment had on students’ mental health, and social learning and technological needs.

This interview explores the unique and critically important role that attorneys play in advocating for students in need of disability services in public school and the incredible work being done by attorney Allison Hertog, and others across the state.

Ms. Hertog is a member of The Committee on Access to Justice and Civic Engagement which seeks to broaden access to the courts and justice system and help provide civic programs to educate the legal community about how to get involved.

• What is the most pressing issue and source of concern for you regarding disability services in public school education?

I come to this field as a former special education teacher who grew up in a family with multiple children with disabilities, including myself.  My brother’s disability impacted him and the family to a much greater degree than my own disability.  But when it comes to my history in elementary school, I was retained in the second grade because I couldn’t read, and my parents were told I would never go to college.  That fundamental misunderstanding of who I was and what I needed to succeed in school was a tremendous setback for me personally.  I know that if I was so underestimated, less privileged children have and are suffering to a much greater degree than myself.  That’s what has driven me to devote my career to this field, and to often focus my professional attention on children who are disadvantaged.

That said, generally one of my biggest sources of concern for children with disabilities is also a major concern for all students nation-wide, and that’s the shortage of teachers.  The shortage began years before the pandemic, but has since been exacerbated, and it’s both a precipitous decrease in the number of people who want to become teachers and a significant increase in those who quit teaching to pursue other careers.  The reasons for that trend are complex, but it leaves about 1 in 10 of all teaching positions unfilled or filled by teachers who are not fully accredited.

Why is this a shared concern for general education and special education? A disproportionate segment of the teacher shortfall is made up of special education teachers.  About two thirds of special education students are educated primarily in general education classrooms, and that number is likely to grow.  That means that general education teachers have classrooms of students with a wide variety of achievement levels and needs.  Most general ed teachers have not been properly prepared, and don’t have the time, to teach kids with disabilities who often need a longer time frame or different approach to master the same content.

Because students with special needs are impacted disproportionately by these problems, as well as the learning loss of the pandemic, children with disabilities have fallen dangerously behind academically. 

• What do parents need to know?

Parents of special needs students need to know that they have federal and state rights to what’s called a Free Appropriate Public Education. Those rights inure to the benefit of students who because of a disability are essentially performing below state standards in an educative area, such as academics, social/emotional/behavioral, speech and language, health, etc.  While schools are supposed to explain to parents their rights, they often do not.

• What laws are in place to address the basic services that must be provided?

The Individuals with Disabilities Education Act (the “IDEA”) was signed into law by Gerald Ford in 1975.  Before that law was implemented, US schools educated only about one in 5 children with disabilities, the rest sat at home or were in institutions.

The IDEA provides formula grants to the state for children with disabilities from infancy through age twenty-one.  At that time, Congress estimated that it cost states twice as much to educate a student with disabilities as it does to educate a general education student, and the law authorizes the federal government to give up to 40 percent of that excess cost to states.  Congress has never come close to that mark; its $12.3 billion contribution in fiscal year 2018 is more like 15 percent of the excess cost.

The IDEA prescribes a very detailed set of rights and regulations governing instruction, services and support of students with special needs of which the cornerstone is the Individual Education Plan (“IEP”).  States, of course, prescribe their own regulations which may increase those rights.  California does expand those rights and has a robust set of regulations. 

Another law that is implemented in public schools is Section 504 of the Rehabilitation Act of 1973.  This is a civil rights law, which was a kind of a precursor to the ADA, and outlaws discrimination based on disability in organizations which receive federal financing. There is no funding attached to Section 504 and it essentially provides a means for creating a “level playing field” for students who need accommodations, such as extended time, or special equipment who do not qualify for special education under the IDEA. 

• Can you provide a basic definition of special education?

Special education is “specially designed instruction” at no cost to parents to meet the unique needs of a student with a disability. Specially designed instruction means instruction adapted to the needs of an individual child so that they can meet the educational standards of the state.   Similarly, the broad goal of an IEP is to enable the child to make progress towards the state’s general education standards.

• We often think of those with disability as part of a protected class under the law.

In many ways historically the protection of people with disabilities has been de-emphasized.  Under the Constitution, disability is a protected class entitled to rational basis scrutiny.  It’s only been since 1990 with the ADA that the US government outlawed discrimination against people with disabilities beyond federal financed organizations, and facilities have been mandated to be wheelchair accessible. 

• In the educational context, for children in public school how do students become entitled to special education or other assistance for their disabilities?

In order to qualify for special education, a public school district must assess the student and those assessments must demonstrate that the student has a disability that adversely impacts her educational performance requiring specially designed instruction.  There are 13 designated impairments or disabilities under federal law, such as Orthopedic impairment, Autism, or Specific Learning Disability.  Having an impairment doesn’t rise to the level of eligibility for special education unless the students “educational performance” is adversely impacted.  It’s important to understand that “educational performance” is defined broadly beyond academics and includes social/emotional/behavioral needs, speech, and language services, etc.

• I have heard of Individual Educational Plans, aka IEPs, what are they and how do they fit in here?

An IEP is a legally binding agreement between the parent and the school district the terms of which are mandated by the IDEA.  Generally, it lays out the child’s educational needs, their instructional goals in those areas of need, and the supports and services they require to meet those goals.  It’s reviewed and amended at least annually in an IEP meeting where the parents and certain school personnel ideally work collaboratively to meet the student’s unique needs.

• What is the benefit of having an IEP in place?

An IEP is the means by which a student with disabilities will obtain educational benefit, known as a Free Appropriate Public Education (known as a “FAPE”) under the IDEA.  In a landmark ruling, the US Supreme Court recently defined a FAPE, raising the standard which districts must meet. 

Endrew F. v. Douglas County School District 137 S. Ct. 988 (2017) was a unanimous decision where the Court overturned the Tenth Circuit’s decision that Endrew, a child with autism, was only entitled to an IEP that was calculated to provide “merely more than de minimis” educational benefit. The Supreme Court determined that, “[t]o meet its substantive obligation under the IDEA, a school must offer an IEP that is reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” The Court additionally emphasized the requirement that “every child should have the chance to meet challenging objectives.”

• What, if any, harm is there to a student in public school in terms of stigma, segregation or long-term negative impact if they have an IEP in place?

The stigma of having an IEP may not be as great as it once was because a) it’s become an essential element of American education; and b) most kids with IEPs spend the vast majority of their day in general education classes.  The same goes for segregation.  If the school district does its job, in most cases there should only be positive impacts to having an IEP.  In many cases the goal is that the child no longer needs services by the time they graduate from high school.

The use of the term “segregation” is interesting because the special education movement was an outgrowth of the Brown vs. Board of Education decision.  Equality and segregation were separated to confer a civil right.  Unfortunately, I still see children with disabilities needlessly segregated from their typical peers by school district design.

• What, if any, impact does that have on students from economically disadvantaged backgrounds or underserved communities of color?

This is a complicated question, which depends on the group you’re looking at and the disability in question.  In theory and by explicit terms of the IDEA, being of color, coming from an economically disadvantage background or coming to the public school system without English fluency shouldn’t result in greater or less eligibility for an IEP than students of other backgrounds.  Of course, those factors do have an impact on who qualifies and who is serviced by special education. 

From my perspective, the greatest negative impact on those students comes in their disproportionate segregation in special needs classrooms or schools.  For example, Black students, and particularly Black boys, are often segregated in special classrooms because of behavior problems which interfere with their educational performance.  These boys are too often separated from their peers, often for most of the school day, into classrooms or schools where less learning occurs, and they have greater exposure to maladaptive behaviors.  This all-too-common practice leads them to fall further and further behind academically and socially, and to in many cases drop out of school altogether.  This is known as the School to Prison Pipeline. 

• We often hear about wealthier parents leaving the public schools for private schools, it seems that there might be strategic advantages in terms of services available in the public school for wealthier families that they might otherwise have to finance themselves.  Is there any truth to that?  

Yes, there is truth to that.  In most cases there aren’t private schools available to meet the needs of disabled students.  Often mainstream private schools don’t have the vision or the resourses to meet the needs of kids with disabilities, and parents are aware, or should be, that they lose their rights under the IDEA if they enroll in private schools.  If a parent is unhappy with the status of their child’s private school education, they often have no recourse other than to leave.  And private schools have been known to “counsel out” students with special needs who they can’t or won’t serve.

• In contrast, if most children in public schools in the Los Angeles Unified School District are of color and from lower socio-economic classes is there any inappropriate IEP designations that might leave some children segregated from traditional learning environments in ways that are harmful to their growth, development, and learning?

Yes.  LAUSD, like many urban districts, has a practice of segregating students with behavior problems, often Black boys, into classrooms and schools.  What they should be doing is following the law and implementing positive behavior intervention programs and other interventions to bring these children up to a level where they can graduate with their typical peers.  Those interventions are not expensive but must be carried out systematically with care.  That practice is illegal and reprehensible.  I’ve sued LAUSD and other school districts for doing just that to individual students.  LAUSD needs to do a complete overhaul of how it supports students like this.

• Historically, children with IEPs or special needs struggled to get complete services and during the pandemic many children received no services.  What, if any, interventions have been put in place by public schools to make up for any learning loss?

The US Department of Education Office of Civil Rights launched an investigation of LAUSD in response to complaints that students with disabilities weren’t being served during the pandemic.  In fact, not only were they not served but the district instructed their employees not to provide compensatory education to make-up for learning loss. 

In April 2022, LAUSD and OCR signed a resolution agreement addressing the fact that during the pandemic school closure LAUSD

failed to adequately service students with disabilities during remote learning.  The district agreed to resolve the investigation by promising to implement a plan to assess and address the compensatory education needs of each of the 66,000 students with disabilities in LAUSD.  Part of that plan is to convene IEP and Section 504 teams to determine compensatory education amounts.

• With that background and legal framework in mind, please outline a typical day in your practice?

A day in my practice probably isn’t very different from any other lawyer’s typical day with the exception that I interface with parents who have very pressing and passionate concerns about how their children are falling through the cracks in school.  I would say that my day is more emotionally charged than most lawyers.

• What do you find most rewarding about work in this area?

In the best set of circumstances, I can help change the course of a child’s life by developing a blueprint for them to succeed in school and beyond.  I’m not always successful at that, but that’s what I strive to achieve.  At the very least it’s tremendously rewarding when a parent gives me a heartfelt thanks for obtaining something for their child that they never thought they would otherwise.

• What is most challenging?

The most challenging part of my work is when school districts fail to understand that a particular child has potential or could achieve that potential if only given the appropriate instruction, services and supports.  Sometimes schools become very myopic in how they view a child and can’t see past the structures and limits they’ve created.

• What resource is most needed by legal practitioners working in this area?

The biggest things which help me in my practice are having the background as a special education teacher and having the experience overcoming a learning disability.  Being able to see the school district’s side of the table allows me to successfully broker settlements and prevail in litigation.

• Who has been your career role model?

I’ve thought a lot about this, and I really don’t have a career role model.  Of course, there have been many towering figures in special education, and I’ve had one or two mentors along the way.  But when I began my journey in this career, which was as a child, I had no one to look up to as a I proceeded through my own educational struggles.  I was fascinated by the story of Helen Keller’s achievement, but obviously, she was not a living role model.  Remember, the IDEA is not even 50 years old, and the ADA is only since 1990.  When I was in law school, there was not a single course in special education law, nor even a clinic.  Those things are commonplace today. 

My role model was really the vision I had for my future self.  An internal voice telling me I could do more if I worked hard just as everyone around me did.

• What is your view of how legal practitioners working in this area help to serve students and to promote equality in education in public schools?

My fellow practitioners are an impressive and passionate lot who work to promote equity in every aspect of their practice, whether it be advocating in IEP meetings or in federal court.  I’m very proud and thankful for my colleagues.

If you are interested in learning more about this area of practice or wish to contact Ms. Hertog, you may reach her at her law office, Hertog Education Law, PC in Santa Monica or via email: Allison@makingschoolwork.com.  If you would be interested in turning ideas into action for civic engagement or improving access to justice, the Committee on Access to Justice and Civil Engagement presents an exciting opportunity.  To learn more about the Committee or to get involved, please contact Committee Co-Chairs Shawn Shaffie and Najah Shariff.