You pay federal taxes. You have schools in your town. Those schools have special education programs. If you’re reading this blog, you’re probably a parent of a child with special needs.
Well, guess what? If you have a dispute with your school about your child’s IEP or otherwise not meeting your child’s special education needs, YOU are paying for the school to fight against you and your child.
Guess what else? Even if you don’t have a child with special needs or don’t even have a child in the school district, YOU are still paying to have the school fight against the child with a disability and his/her family.
Yes, you heard that right. YOU are paying to fight against children with disabilities in your community – maybe your own child.
Let me explain this in greater detail and why the system should change.
Federal Funding For Schools
The federal law known as the Individuals with Disabilities Education Act, 20 U.S.C. §§1400 et seq. or “IDEA” protects students with disabilities and guarantees they receive an appopriate education from their local schools. This is accomplished and enforced through a federal funding mechanism within IDEA. If a state receives federal funding for its schools, it must provide special education and related services to children with disabilities in its public schools. 20 U.S.C. § 1412.
In other words, some of the federal taxes you pay goes to fund special education and related services for students with disabilities. You probably don’t object to ensuring a wheelchair-bound child can access the school via ramps or a child with diabetes having access to the school nurse to administer insulin shots. You also likely don’t object to a chid with a learning disability receiving extra help in the classroom so they can achieve with their non-disabled peers.
YOU don’t object . . . but the schools are.
Where Does the Funding Go?
Those federal funds for special education – your tax dollars – are supposed to be used to assess if children have disabilities and evaluate their needs, prepare Individualized Education Programs or “IEPs” with special education adn related services to meet those needs, and decide the best location to provide those services for the child. 20 U.S.C. §1414. Just as non-disabled children can get their education at their local public school for free, the goal of IDEA is to provide the same for children with disabilities, called a Free Appropriate Public Education or “FAPE”. 20 U.S.C. §1401(9).
Still sounds pretty reasonable, right?
How Does A School Make Sure It Provides a FAPE?
Schools are supposed to ensure a child with a disability provides a FAPE via two main mechanisms: (1) assembling an IEP team; and (2) ensuring that the rights of the child are protected and the parents are active participants in enforcement of those rights. Tax dollars pay for schools to assemble an IEP team, which consists of the child’s parents (and the child if appropriate) and several key school personnel, to discuss how best to provide FAPE for the child with a disability. 20 U.S.C. §1414(d)(1). States and schools must also put procedures in place to secure the legal rights of the child with a disability and his/her parents. 20 U.S.C. §1415.
This is where the system usually breaks down. Because the parents and the school staff don’t alawys agree on how the IEP is developed or what services are provided to the child with a disability. Thereby, a dispute arises.
How IDEA Addresses Special Education Disputes – The Problem
IDEA provides mechanisms to address these special education disputes between parents and schools. If a school wants to do something with which the parents don’t agree or if the school doesn’t want to do something the parents have suggested, the school can issue a Prior Written Notice or “PWN”. 20 U.S.C. §1415(b)(3) and (c)(1). Parents can review their child’s education records kept by the school as a check on whether the school is providing a FAPE. 20 U.S.C. §1415(b)(1).
There are other “Procedural Safeguards” in IDEA, but none that causes as many problem as a party’s right to file a complaint challenging the “identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child” a/k/a a “Due Process Complaint.” 20 U.S.C. §1415(b)(6) and (f).
Why is this a problem? Well, anytime lawyers get involved, there’s a problem, right? [He says half-jokingly, half-seriously.] Each party to a Due Process case has “the right to be accompanied and advised by counsel.” 20 U.S.C. §1415(h)(1).
Still not a bad thing until you realize who is paying the school district’s lawyer’s bill. The answer is . . . you probably guessed it . . . YOU ARE!
Paying For The School District’s Lawyer
That’s correct. Whether attorney’s fees are paid directly by the school district’s Board of Education or through insurance (which is purchased using school budget money), the source of the money paid to the lawyers fight against your child with a disability is tax dollars. YOUR tax dollars.
Schools are misdirecting funds intended to provide education to children with disabilities by spending it on legal bills or insurance to fight special education cases.
So what does that mean? It means YOU, the taxpayer, are paying for the attorney sitting across the table from you and representing the school district. The harder the school district lawyer fights, the more YOU are paying him/her. The school district never has the incentive to resolve the dispute because they’re not truly paying the bill.
Now, I don’t know if you have ever been in a lawsuit before, but if you have, you know what a financial burden it is to pay a lawyer. You have the incentive to get it over as quickly as possible because, in all likelihood, you are not Bank of America (or Citibank or Goldman Sachs or some other big bank). But if you didn’t have to pay for your lawyer, you’d fight to the ends of the Earth, right? That’s how the school district views it.
Not What IDEA Was Designed To Do
IDEA was not set up to favor the school districts. In fact, IDEA was designed by Congress to “level the playing field” so that parents had a stronger role in the education of their child with a disability. Specifically, Congress stated: “The purposes of [IDEA] are to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; to ensure that the rights of children with disabilities and parents of such children are protected; and to assist States, localities, educational service agencies, and Federal agencies to provide for the education of all children with disabilities” among other goals. 20 U.S.C. §1400(d)(1).
IDEA was meant to improve collaboration and cooperation between schools and parents to help children with disabilities receive better education. Certainly, Congress did not intend for states and schools to use federal funds to wage bitter lawsuit wars against parents and their children with disabilities.
But that is what it has become. Ask any of my colleagues at COPAA.
So What Can You Do About It? – TAKE ACTION!
If you are like me and fed up with this system of injustice and abuse of taxpayer money, you can take action. What school districts and their attorneys don’t want you to know is that because the source of funds paying the lawyer fees is public tax money, they MUST disclose such payments to the public who are paying those taxes.
In other words, if you live in a school district that is waging a special education war against a child with a disability, you have the RIGHT to know how much the school is paying its lawyers.
How do you find this out? You make a Freedom of Information Act or “FOIA” request (or your state’s version of FOIA; for example, in New Jersey it is called the Open Public Records Act or OPRA).
Each state has a website for FOIA requests (I’ve listed a few below as examples) and usually a form to fill out. On the form ask to see “All fees and costs paid to lawyers by XYZ Schooll District for special education disputes or legal disputes under IDEA for the last 5 years” or something similar. Prepare for a fight, but you have the lawful right to that information as long as you live in XYZ School District.
For those not listed here, Google “[Your state] FOIA request” and look for an official state website URL.
Go get ’em!