Special Education law is not about revenge

Many clients come to me with vindication on their minds.  They feel they have been wronged and want to inflict pain on whomever did the wrong.  They want revenge.  This is especially true in the field of special education law.  They want to “get back” at the school district that they felt is interfering with their child’s education; or, the school district wants to show the parents their place, which is not to interfere with how they are handling the disabled children in their programs and that, somehow inherently, they know better than the parents.

However, that is not what the law is about.  The following is a longer version of what I tell any client that comes to me with a revengeful goal.

The law, especially the civil law of which special education law is a subpart, is not about revenge or vindication.  If that is the sole goal of pursuing legal assistance, two things are true for me: (a) I won’t take the case; and (b) the client will never feel satisfied.  More on these two results in a minute.

But, first, the response I get to this principle is “Well, what’s the point then?”

The answer to this is very simple: The purpose of civil law (and especially special education law) is to put the wronged person back into the same position they would have been had there been no wrong.

Let’s examine this with a simple hypothetical: Imagine a neighbor was trimming her hedges and she accidentally cut off a limb on a tree in your yard.  You had grown that tree from a sapling.  The tree doesn’t die, but does suffer a bit in growth.  You have to spend a lot of time and effort to protect the tree and make sure it lives.  You are really mad at your neighbor (probably, there is some other cause of that anger and this merely exacerbated it).  You want your neighbor to go to jail.  You come into my office seeking legal help.

Aside from me giving you a shorter version lecture on this topic, what will the law do?

First, the law will NOT put your neighbor in jail.  Jail is only for criminal actions and this is not a crime.  It was an accident, for which the civil law is designed.  We will discuss the nature of the civil wrong – it is trespass (unlawful encroachment onto your property without permission causing a harm).

Second, I will try to ascertain why you are so angry (if it is caused by something other than the tree) and what the true costs (we lawyers call this “damages”) the harm to your tree incurred.  For example, you spent money to protect the tree; the tree survives; and there may be some sentimental value to the tree to you.

Third, I will discuss what is the goal of the case.  What would put you back in the position you were had your neighbor not accidentally cut off your tree limb?  This might be an apology; it might be some money to reimburse you for the costs incurred; or it might be for the neighbor to pay to have a new tree planted in your yard.

But you want to sue and get them back for what they did.

At this point, I will politely thank you for coming to my office and advise you that I don’t take cases for revenge.  Maybe you will say, OK, I don’t want revenge, I just want some repayment here.  Then we have a conversation on how to go about achieving the goal.

Now, this is the most important part of this post.  Achieving the goal is RARELY if EVER reached by litigation, by suing someone.  Adopting a “bully” attitude NEVER achieves the goal.  Remember that old saying your mom used to say, “You catch more flies with honey than with vinegar?”  (We won’t discuss why you want to catch flies in the first instance, but you get the point).

There are many ways to achieve the goal without a big fight.

These principles ARE and SHOULD BE applied in the special education arena.  If your disabled child is not receiving services that provide them with an equal opportunity at a “free appropriate public education” (FAPE), then we need to have a discussion on how to achieve that goal.  Resolution may be as simple as explaining to you your rights as a parent and your child’s rights and how the process works.  It may also be as simple as being an active, yet collaborative, participant in an IEP meeting or an eligibility meeting or in the evaluation process.

Occasionally, clients come to me after working with an advocate.  Some advocates (certainly not all or even most, but some) either provoke the revenge mentality or make it worse with the clients.  While I understand the reasons behind this (often advocates are parents of disabled students who have had to fight their way through the system on behalf of their own child with little knowledge of special education law and with some resistance from the school districts), it does not justify it.  Some advocates misdirect their anger from their own experience towards the client’s school district.  This causes a lot of misperception and sometimes legal inaccuracy about the client’s situation, and consequentially creates a negative atmosphere in which to create a solution.

Representing parents in a special education matter must be handled in a calm, objective atmosphere with the goal of a collaborative solution that truly helps the child.  Bitter fights over minor procedural mistakes do not necessarily help the child.  Certainly, a battle purely on “principle” is not a reasonable strategy because it ignores the needs of the child.

Part of this calm, objective atmosphere is the realization of two key facts: (1) the parents are often panicked or in grave fear for their child’s future; and (2) most school district special education personnel really want to do the best thing for the child.  [Thank you to my colleague Katie Kelly www.katiekellylaw.com for expertly enunciating these two salient issues to me.]

Most people, including those on the school district side, do not go into education (or special education, for that matter) without the bests interests of children in mind.  Extremely few school district personnel are vindictive about a special education situation.  Thus, parents should likewise not be vindictive.  It makes resolution that much harder (and expensive, if you are paying a professional, such as an advocate or attorney).

So, if you arrive in my office or contact me with a special education issue, I will represent your rights zealously and with passion.  I will try to reach the best possible solution to your disabled child’s educational problem.  I will NOT seek revenge or a bitter fight with the school district, but I will fight with fervor if I encounter the rare obstinate administration.

If you keep these thoughts fresh, in the end, you will be much more satisfied with the result and with the legal process.

Now I will sit and wait for the anticipated onslaught of hate mail . . . LOL

 


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