Someone recently posted this question to our Facebook group Special Education Law for Families:
I have this question: The Constitution guarantees free legal help for people who are charged with a crime which might lead to imprisonment and who cannot afford a lawyer. Also, In non-criminal or “civil” cases, you do not have the right to a free lawyer. But there are many legal aid and pro bono programs that provide free legal help if people who are elderly, disabled, the victims of domestic violence, enlisted in the military or in other special circumstances may be eligible for help even if their income is a little higher. Is there a directory of free legal aid and pro bono programs in special education for those who have children with disabilities in each state?
We see this question a lot because we understand that legal services are expensive and often the budgets of parents of children with disabilities are already spread too thin. But let me address the question.
The short answer is: Sort of.
Allow me to address the question in several points:
(1) Comparing the 6th Amendment right to counsel in criminal cases to no right to counsel in civil cases is comparing apples to oranges. It is fundamental to our Constitution that we cannot put someone in prison or punish them (via fines or otherwise) without due process of law; and some individuals (only those who cannot afford it) will not get due process of law in a criminal court without an attorney. The government cannot deny someone their life, liberty or property without due process of law. It is also worth noting that some defendants, even though they are entitled to criminal defense counsel, reject such free legal services because everyone also has the right to represent themselves. [This is a very brief dissertation on a very complex topic.]
(2) Legal aid / pro bono services are only for those who cannot afford it. There is a standard, which is typically 125% of the poverty level for each state and depending on the household size, a person must meet to qualify. For example, for the contiguous 48 states and a household of 1, the household income may not exceed $15,613 [I don’t make these rules; they are set by the Legal Services Corporation of America.]
(3) Yes, there are some pro bono / low bono legal services available in some states for special education cases. Many states have a Disability Rights organization funded by the state to provide civil rights legal assistance to individuals with disabilities with staff attorneys. In New Jersey, for example, DRNJ provides pro bono assistance in special education cases. In addition, some states have non-profit organizations that provide these services. However, not all of these organizations provide legal services for special education cases. The reason for this is that these organizations rely on outside volunteer private attorneys to provide the legal help and they recognize that these cases can take a very long time and tax the resources of such volunteer counsel such that it is hard to get private attorneys to dedicate that much time to provide legal services without getting paid. [Imagine if you are a plumber and asked to do plumbing work on a house that took 2 years to finish and you didn’t get paid for it. It is too much to ask someone to go without pay for that long a period.]
Our suggestion is to see if your state has a Disability Rights organization or a legal aid non-profit that assists in special education cases.