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 access to 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!

36 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?

      1. The answer to your last sentence is because they don’t pay the bill. Us tax payers do —so they will 1.) Want to deny first right off the start 2. Be more than happy to
        Fight in due process too since we are paying the bill

        It’s a win win for them especially when they face parents who are clueless about their rights.
        Unless their reputation is at stake they’ll litigate all day long and want settlement hearings over due process hearing because settlements are confidential and by law do not hold districts accountable. Due process hearing at least is a public
        Record.

        1. Actually, settlements are NOT confidential. They will say that to scare the parents and advocates, but because settlements come out of tax dollars (public money), settlements are also public information (because taxpayers are permitted to know where their tax money is going). Confidentiality clauses are not enforceable except to the extent to protect the identity of the child. Do a FOIA request for settlement agreements of special education cases in your district. Also do FOIA requests for the attorneys’ fees paid on those cases. If more people did this, the public might help put a stop to the nonsense.

      2. As a former school psychologist I can attest to all the issues presented in this article. Also, I have two grandchildren in special education now. I have warned my son that his children’s success is only as good as the teachers currently supporting his kids. It could all change tomorrow. I don’t think he believes me. I personally left school psychology after ten years because of burnout. And I was often held back from ‘doing the right thing’ by my boss. Other psychologists pressured me to see fewer kids to keep them from looking bad. My boss should have been managing them, not me. It was not pretty. I would advise your readers to think about the ‘outlandish’ events that actually are occurring in your local school district. It is not sensational if it is true.

    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.

      1. Honestly y’all, I’m a special education teacher/case manager and I’m the biggest advocate for my kids. All the teachers I know are the same. I’ve been yelled at by parents for perceived slights. I’ve spent my own money on supplies. I’ve spent sleepless nights wondering how to help certain students. It affects my mental health and well-being as well.
        The language in this article is shameless fear-mongering. Teachers and schools are not the boogey monster trying to take your kids’ rights away.
        I write this as both a dedicated teacher and sibling of an individual with an intellectual disability – teachers are not the enemy. When you come in with a “ready to fight” mindset, you set a negative tone for the relationship with the school and teachers. Honestly this attitude is a huge part of the reason that special education teachers (especially the good ones) burn out so fast and so often.
        Take responsibility for the energy you bring into the meeting as well.
        Understand that, for the most part, teachers are trying to make the most out of nothing. Lobby your representatives and get more funding for schools and classrooms and you’ll see these issues drastically reduced.
        And honestly, be reasonable. Don’t ask for unrealistic things then sue when you don’t get your way. So exhausting.

        1. Appreciate the comment. However, if you look at this article, it doesn’t blame the teachers. Teachers aren’t the ones hiring the school district’s attorneys or the ones deciding to fight the due process battles. Those people are usually the school board or the administration, such as the superintendent. While there are a few bad teachers across the county, most are very well-intentioned as you seem to be. What we have learned is that in many school districts the teachers are not permitted to speak up if something is not going well. The administrators squelch the negative so as to avoid lawsuits, thinking that the parents don’t know their legal rights. Parents, believe it or not, don’t want to sue their school districts either. It’s not as if they wake up one morning and go, “who can I sue today? Oh, yeah, my school district.” Parents are not different than you; they want the best for their child who is struggling to manage public education in spite of their disability. Parents want their child to succeed. There are a few who ask for the Mercedes-Benz in education, but most parents just want a car (education) that won’t break down every day. It is not shameless fear-mongering to acknowledge that taxpayers are whose money is being used to pay for the school district’s attorneys and those attorneys have an incentive to make money, correct? So this article simply asks people to take a look, from a taxpyer perspective, on whether their money is being well-spent.

  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?

  9. Thanks for the very helpful article. My question is why are school districts so motivated to deny services? Is it a budget issue? Do they have caps on the number of IEP students they can accept? My teenage son had undergone extensive testing by two separate professionals and both believe he qualifies for an IEP. The school district continues to deny our request and the district psychologist’s assessment says he doesn’t qualify. So clearly we have a grey area case and we are now doing due process. The district could have saved on lawyer fees if they simply approved our IEP. I can’t figure out the motive here?

    1. I agree with you, the motivation seems baffling. My opinion is that schools want to avoid setting a precedent. In other words, “if we do this for this child, then there will be 100 other children that we have to do the same and we don’t have the budget for that.” If that is the true motivation (and my years of experience suggest it is), it is illegal and moronic. The law (IDEA) is not about whether a school district has the budget or not; it is a MANDATE from Congress to help children with disabilities in their education. School districts often disregard all of the evidence that suggests a child needs an IEP or even 504 accommodations and would rather fight it out in court (which can take years) so that they don’t have to open the flood gates (which, in my opinion, is an unfounded concern).

  10. Simple question from NH. My son has had an IEP since age of 3. Now a junior and moved to different school who drastically dropped his time with caseworker from 90 mins per school day to 30 mins twice per week and he never tested out of his needs. Matter of fact his test scores are now worse. He hasnt even received the time as they say they are short staff and have been trying to work on the problem. My son was doing well before and successful because of his dedicated caseworker and teachers at previous school. As a junior, he doesnt have time for them to fiddle around and I am.very involved and have requested 2 meetings thus far just for the lack if supports and what are we going to do to fix and I feel they are just beating around the bush. What can I do for them to see that I will not stop and he by law deserves his supports.
    Second, do schools or districts get extra funding for students with IEPs and where does that funding to provide extra teachers, caseworkers for students with IEPs come from? Does it increase the taxes when more students in that town or does the government give extra funding per special education needs? Where is the funding coming from? (Whether it is used properly or not, where does it come from?)
    Thank you kindly

    1. I can’t give specific legal advice on your case or what you should or shouldn’t do for several reasons, not least of which is that I am not licensed in NH.

      I can provide some relevant citations to law that might be helpful:

      (1) Assuming that the “different school” is within the same state, “In the case of a child with a disability who transfers school districts within the same academic year, who enrolls in a new school, and who had an IEP that was in effect in the same State, the local educational agency shall provide such child with a free appropriate public education, including services comparable to those described in the previously held IEP, in consultation with the parents until such time as the local educational agency adopts the previously held IEP or develops, adopts, and implements a new IEP that is consistent with Federal and State law.” 20 U.S.C. 1414(d)(2)(C)(i)(I).

      (2) States get funding for special education from the federal government, specifically Congress, which ultimately comes from tax dollars. States that receive those funds must comply with special education law. 20 U.S.C. 1412. States then allocate those funds to school districts (“Local Educational Agencies”) depending on how many students with disabilities are within their district. School districts must likewise comply with special education law in order to receive those allocated funds from the state. 20 U.S.C. 1413. The amount of those funds and whether they increase from year to year depends on the state allocations. So, the short answer to your question is, the funding comes from us the taxpayers and through a procedure for allocating those funds by Congress.

  11. My son has been mistreated due to his height and disability. My son has adhd. Everything thats implemented in his IEP has not been done. Work wise and breaks. They tell my so to wait or ignore him. I was also told that they have to many children to accommodate him and his needs. These schools are taking our money and dont even know whats on our kids IEP. I am tired and fed up.

  12. I am in Texas. Which government agency do I send the FOIA request to?

    We are about to file against the district again. They had to pay up the first round. I can’t for the life of me figure out how they can be so fearless about non-compliance with an IEP yet again. This article provided some possible answers.

    Some schools may be concerned about parents filing a suit, but our district would much rather lock horns than comply with an IEP (even when they agreed to it).

  13. My child has an IEP in place he has changed several schools because his IEP was not being adminstered correctly. The school he is at now he has only been there for a week in a half and they state the IEP teacher does not come get him from class he has to walk to her class everyday. So, he had an issue today where the teacher sent him out of class to go to the library and on the way to the library he saw a friend who gave him birthday licks because his birthday just passed so the teacher saw him wrote him up and stated he was skipping due to him playing in the hallway with another student. What are my rights can she do that? Also, is it an accommodation I can get him to allow an outside individual to come and sit with him in the classroom to help him because he is struggling to read and write.

    1. I am unable to give you legal advice via a blog. My suggestion is to contact a special education attorney or advocate near you and seek their advice. You can find an attorney or advocate at COPAA’s website http://www.copaa.org. Good luck!

  14. My daughter was and I have been through so much I can’t explain, now I know what “I’m lost words” mean . I’ll try to explain; Before I stopped sending my child to school which was a year & a half ago was bcuz my child was removed AGAIN from a class she loved in the beginning of the year to her old teacher that did not teach her. then placed a child that bullied her and physically hurt her, instead she was removed from their class, left my child Emotionally confused. The old teacher applied a BSP on his own, at a due process hearing the judge said “no behavior support needed, now or future” per BIC. My child is an angel from heaven I am NOT close to kidding. New Hearing just got decision 20 days ago judge left the BSP in place but the IEP was out of compliance. THE DISTRICT IS NOT FOLLOWING THE JUDGES ORDER, WILL NOT REPLY… TODAY IS MY ANGEL’S B AND I WANT TO GIVE HER THE GIFT OF EDUCATION. I HAVE BEEN ADVOCATING FOR HER FOR OVER THREE, I’M EXHAUSTED

  15. My son, who is now 19 and struggles to get or keep a job at any place better than McDonalds was force passed pretty much all the way thru school. He has dyslexia and at the end of his 1st grade year we started him in the Take Flight Program which was supposed to help him learn to read and spell at his grade level. He was considered a child with a disability and had an IEP in place at the begining of his 2nd grade year. By the 4th grade he was still spelling words the way they sounded and reading on a 1st grade level. At the end of his 6th grade year i received a call from his teacher saying he had failed math and needed to do a credit recovery class after school. Which he failed also. I told his teacher i felt like he needed to be held back a year maybe it allow him to catch up. The teacher then told me i would have to talk to the principal at the school becuase she did not want anyone held back. They passed my son on to the 7th grade with a 4th grade math level. I went to the superintendent of the school district trying to request my child be held back. I was told it was not a good idea to hold him back because 80% of all children held back became drop outs. So my son went on to the 7th grade. During enrollment i request to the counselor that we have an iep meeting as soon as possible. It was important to me that the new school and teachers knew what level my child was on and what his needs were. I requested this meeting 7 times during the 7th grade yesr. We never recieved one. The beginning of 8th grade i requested a meeting and threatened to take action if i did not receive one. It was only a few days later that i received a meeting. In this meeting the principal of the school had my son sit in, which had never happened before. The principal informed me that if my son did not pass the taks test that year he would not advance to the 9th grade. I told the my son has never been able to pass one of those test so what will happen. The principal told me he would be able to take the test again. I said he has never passed one of these test. The principal said he would hold my son back until he did pass. At the end of his 8th grade year he was failing all his major classes and did not attend the last few weeks to take his final exams..somehow my son passed to the 9th grade. I had one teacher that apologized to me everytime he saw me for how ECISD had failed and let my child down. He now struggles to read and write and has lost jobs due to the fact he cannot read and comprehend as fast as others. He dropped out of public schools anyways because he felt like they were not concerned about if he was learning or not. I enrolled him in a private school his 10th grade year. He did graduate from this school but not at a 12th grade level. I feel like the school district should be held responsible for not properly educating my child. What can he do now as an adult?

    1. I cannot give legal advice on a blog and I’m not sure what state you are in, but I would strongly recommend you see a special education lawyer immediately. I cannot make any representations as to whether you have a case or not or whether you have missed any deadlines, but a consultation with a special education lawyer in your state will provide those answers. You can find a lawyer at http://www.copaa.org and search in your area. Good luck to you!

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