Public Schools Have Made Your Child the Enemy and You, the Taxpayer, Are Funding Their Battle

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.

New Jersey OPRA Records Request Website and Form

Florida Public Records Act Website and Forms

Texas Open Records Requests Website and Forms

Pennsylvania Open Records Request Website and Forms

For those not listed here, Google “[Your state] FOIA request” and look for an official state website URL.

Go get ’em!

17 Replies to “Public Schools Have Made Your Child the Enemy and You, the Taxpayer, Are Funding Their Battle”

  1. I feel like my son was discriminated against by the
    high school coach was told it wouldn’t be fair to have him in team. Then I was told by athletic director kids with disabilities are part of school teams but not directly part of team because they can’t meet up with the regular kids
    They do not offer equal sports what can I do to fight this.

  2. Good evening I have a question about my adopted son who has an IEP since he was 3 . When he started kindergarten they pulled him back in district for half day kindergarten and won’t let him go to the 6 week summer program in the school district I refused to sign the IEP and they implementing anyway they said it was there right. He started first grade in September and they still refused the summer program his teacher stated he is having a hard time in the school program they putt him in and definitely forgot a lot of stuff over the summer. He is still struggling is there something I can do? He has fetal alcohol affects seizures g tube EOE allergies and they saying all this has nothing to do with school Thank you

  3. My son has been diagnosed with Autism at a very young age.He is 15 and a sophmore in high school.He was denied special ed because he gets good grades.How do i appeal this.
    Sincerely Jeremy Luongo
    857 888 5189.

  4. So, I’m reading through your blog, and I have to say it sounds a bit sensationalist. I’m a school psychologist in WA State, and due process is something districts actively avoid as much as possible. Presenting this information to parents in the manner you have seems a bit like a scare tactic. The vast majority of evaluation and IEP teams are going to side with the parents in almost every case; when they don’t, it’s because the data doesn’t support the presence of a disability or the need for specially designed instruction. For example, the scenario you paint above re: a student in a wheelchair utilizing ramps and ADA access to appropriately attend school, wouldn’t necessarily qualify for an IEP. That student would also have to show a need for specially designed instruction, and assuming they know how to get around with their wheelchair, SDI wouldn’t apply to him or her.

    I’d ask that blogs like this at least address the inequity of resources, under-funding, and under-staffing of special education, especially if you’re going to lambast us as a system abusing taxpayer dollars for frivolity. There are many, many nuances here that you do not address, and attempting to scare parents into defensiveness does not bode well for a system that requires collaboration to be effective.

    1. Perhaps you work in a very collaborative school district. I would argue yours is the exception. I receive calls from all over the country, represent clients in many different jurisdictions, and they all generally support the position in this article. I am also a member of a national special education law trade group and we share ideas and concerns – practitioners in virtually every state echo this concern. If you do work in a very cooperative area, thank you. We need more schools and school administrations like that. Unfortunately, that is not the reality in a majority of the country. And if it is true about the inequity of resources, why is so much spent on litigation when it would require so little to actually provide the services?

    2. Hi There,
      I am a parent of an Autistic boy. My son’s district was horrible and their negligence has resulted in severe trauma and significant behavioral patterns. Nothing about this article is off base. The school district was a bully to put it lightly. They refused speech and assisted technology and Aba most of his school career. They left him to suffer silently with a room of non verbal kiddos and mostly behavioral. They ignored all medical documentation and honestly I could go on but will leave with in Massachusetts, this article is very accurate and glad to hear Washington state is a better experience for parents.

    3. Sean I also live in WA state. We have some of the worst special ed services in the country.

      Being a family who has endured this process and the district still is not abiding by FAPE or providing my child with any education. I disagree with what you are saying. It has been months and still nothing has resolved or even improved. It has in fact gotten worse. Meanwhile my child continues to be suffering because of this. It seems to me they dont even care if they service my child.
      This issue needs to stop its not helping anyone.

  5. I had this happen to me. I paid both the schools atty and mine to fight for my child to get the services he needed. My atty was direct and explained their atty was on retainer and they would get me to the edge with stress and financial impact and I needed to know that upfront before I moved forward. She was right…I wanted to give up after 18 months, but my husband reminded me of what the atty said and I pushed through.

    I wanted to FOAI, but my husband and atty thought that would negatively impact my case.

  6. I dont understand how school staff take advantage of the disadvantaged, especially children. I couldn’t be a special education teacher and sleep at night.

    1. Most of the time it is not the special education teachers that are the problem. It is the case managers and/or school administration (superintendents, directors of special education, financial people) who are the source of the conflict / dispute. I believe that most special ed teachers have good hearts and want to do what is best for the children; their bosses are the ones who often restrict their abilities to help.

  7. This article rings true! We had a strong collaborative relationship with our son’s school district until we crossed state lines to TX. TX has no idea what they are doing to the detriment to sped students. They just want to appeal for the sake of it to discourage parents and drive up the parent’s attorney fees. There should be huge penalties to school districts for this type of action. And no one talks about how this also affects the parent’s pain and suffering – having to take time off work, not be able to work, mental anguish resulting in autoimmune flare ups, doctor’s appointments, mental strain, marital strain, etc. We are already trying to survive and then get bullied by school districts who want to bleed your finances dry.

  8. Yes…same damaging non FAPE in Ohio for autism child. Teachers a nd aides traumatic hostile environment.

    Sir …aside from doing FOIA what can parents do to stop paying for school lawyers to fight us. I know….since it all our tax dollars….the law needs to read parents get equal funding for due process hearings and prep just like the school does. How can I start this effort?

    1. I think a non-profit organization might be the way to accomplish this. I’ve considered this idea myself. There may be government grants eligible for this type of assistance, but I have not had the time to look into it. Agree that funding legal battles against school districts that are using our tax dollars against parents is needed.

      1. I don’t understand the correlation between good grades & qualifying for SpEd? A psychological evaluation by a school or private psychologist must be made to determine whether or not a child qualifies.
        I see that this is a post from 2018. Have you been proactive? If so, what has been the outcome?

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