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Special Education Law Book – Get Help NOW!

I just published a book titled “SchoolKidsLawyer’s Step-By-Step Guide to Special Education Law” and it is currently now on sale to the public.  I think this book would benefit so many of you who have a child with a disability or special needs.

Do you know your and your child’s legal rights?  Do you know how to make sure they get the right services and therapies at school?  Is your child’s school meeting all of his/her needs? Are you battling with the school on your child’s behalf?

This Guide will help you with any of those issues.  To learn a bit more about the book, you can visit its website at:

http://schoolkidslawyer.com/book

SchoolKidsLawyer’s Step-By-Step Guide to Special Education Law:

Workbook for Parents, Advocates and Lawyers

 

Aggravation about trying to access student records

As you may know if you have been reading my 2 Things: Special Education Law Tips Newsletter, there are laws which grant access rights to parents of their student’s educational records.  This is especially true when the student is a child with a disability.  Such rights are granted by the Family Educational Rights and Privacy Act (FERPA) and its regulations (20 U.S.C. §§1232g and 1232h and 34 C.F.R. §99.1 et seq.), by the Individuals with Disabilities Education Act (IDEA) and its regulations (20 U.S.C. §1415(b)(1)), and usually also by state laws and regulations (for example, in New Jersey it is the Special Education Code N.J.A.C. 6A:14-2.9).

But schools and their lawyers put up roadblocks to parents trying to review their child’s file.  First, often they do not even inform the parents that they have the right to review those records, even though the law says they must tell the parents of such right.  See 34 C.F.R. §99.7(a).  Second, schools and/or their attorneys play games with the definition of “education records” so as to block parents from seeing ALL of their child’s file, even though “education records” is clearly defined by the laws.  See 34 C.F.R. §99.3 Education Records.  That definition has very few exceptions, so essentially everything “maintained by an educational agency or institution or by a party acting for the agency or institution” that is “directly related to a student” must be produced to the parent.  34 C.F.R. §99.3 Education Records.

There are some other delay tactics that schools will play, but from my perspective the most aggravating one is that the schools and/or their counsel take the position that I, as the attorney for the parent(s), may not review the records; that it must be done by the parents themselves.  This is an inaccurate statement of the law and purely meant to obstruct this right.  Most state laws permit the access and review of the records by a “designated representative” of the parent, e.g. the parent’s attorney.  See e.g. N.J.A.C. 6A:14-2.9(b).  I can understand the precaution if a neighbor wants to review the records, in which case a school should make sure that such neighbor has the consent of the parent.  But when an attorney has already represented in writing that he/she is counsel for the parent, he/she is, by the nature of being an attorney-at-law, the legal designated representative of the parent.

This is the type of nonsense that needs to STOP in special education cases.  This is a source of my anger at the legal profession because it reeks of a lawyer trying to rack up fees instead of having his/her client obey the law.  It is no wonder that parents are so frustrated and annoyed by schools anymore, because it just seems like schools would prefer to play a litigation game rather than do the right thing for a child’s education.  IMHO, of course.

School District Lawyer Tactics May Violate Ethics Rules

I am an attorney who represents children with disabilities and their families in special education matters. I am also a member of the Council of Parent Attorneys and Advocates (“COPAA”, www.copaa.org), a national organization of special education lawyers and advocates with the same client base.  Recently, my colleagues and I have witnessed a substantial uptick in very aggressive opposition by school districts and their counsel to our clients’ exercise of their legal rights, namely trying to ensure access to a public education for children with disabilities.

I believe that such opposition by school district lawyers may be in conflict with attorney ethics rules.

Applicable Ethics Rules

Most state organizations that regulate lawyers have adopted the Model Rules of Professional Conduct (ethics rules, hereinafter abbreviated as “RPC”) or a similar version.  The RPC guide the conduct of lawyers in their practice and representation of clients.  “The Rules of Professional Conduct are rules of reason.”  RPC, Preamble, ¶14.

Lawyers are public citizens.  “As a public citizen, a lawyer should seek improvement of the law, access to the legal system, the administration of justice and the quality of service rendered by the legal profession.”  RPC, Preamble, ¶6. “A lawyer should use the law’s procedures only for legitimate purposes and not to harass or intimidate others.”  RPC, Preamble, ¶5.  In addition:

“a lawyer should further the public’s understanding of and confidence in the rule of law and the justice system because legal institutions in a constitutional democracy depend on popular participation and support to maintain their authority. A lawyer should be mindful of deficiencies in the administration of justice and of the fact that the poor, and sometimes persons who are not poor, cannot afford adequate legal assistance. Therefore, all lawyers should devote professional time and resources and use civic influence to ensure equal access to our system of justice for all those who because of economic or social barriers cannot afford or secure adequate legal counsel. A lawyer should aid the legal profession in pursuing these objectives and should help the bar regulate itself in the public interest.”

RPC, Preamble, ¶6.

Finally, a lawyer’s conduct should not be guided only by the rules, but also by basic morals.  “Many of a lawyer’s professional responsibilities are prescribed in the Rules of Professional Conduct, as well as substantive and procedural law. However, a lawyer is also guided by personal conscience and the approbation of professional peers.”  RPC, Preamble, ¶7.

These sections of the RPC mandate that lawyers improve access to the legal system, particularly by those members of our society who may face obstacles in obtaining such access, e.g. those with disabilities.

Statistics of School-Aged Children With Disabilities

According to the 2010 U.S. Census, off the 53.9 million school-aged children  (ages 5 to 17),  about 2.8 million (or 5.2%) were  reported to have a disability.  A study performed by the National Institutes of Health (NIH) revealed that “out-of-pocket expenditures, particularly those for medical costs, for example, are higher among families with children with a special health care need.” That study further found that costs “average $30,500 a year per family with a disabled child.” Several other studies conducted by the Social Security Administration and the American Psychological Association indicate that families that have a child with a disability have a greater economic hardship than those families that don’t.

The obvious conclusion is that a family with a child with a disability has fewer financial resources to enforce its legal rights.

The Purpose of Special Education Law

The main law in special education is the Individuals with Disabilities Education Act, 20 USC §1400 et seq. (“IDEA”).  When passing this law, the U.S. Congress made the following findings:

  • “Disability is a natural part of the human experience and in no way diminishes the right of individuals to participate in or contribute to society.  Improving educational results for children with disabilities is an essential element of our national policy of ensuring equality of opportunity, full participation, independent living, and economic self-sufficiency for individuals with disabilities.”  20 USC §1400(c)(1)
  • “the education of children with disabilities can be made more effective by . . . strengthening the role and responsibility of parents and ensuring that families of such children have meaningful opportunities to participate in the education of their children at school and at home” 20 USC §1400(c)(5)(B)
  • Parents and schools should be given expanded opportunities to resolve their disagreements in positive and constructive ways.”  20 USC §1400(c)(8)

Congress went on to state that the purpose of IDEA is:

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.

20 USC §1400(d)(1).

IDEA establishes ‘procedural safeguards’, which are designed to protect the legal rights of children with disabilities and their families.  “Any State educational agency, State agency, or local educational agency that receives assistance under [IDEA] shall establish and maintain procedures in accordance with this section to ensure that children with disabilities and their parents are guaranteed procedural safeguards with respect to the provision of a free appropriate public education by such agencies.”  20 USC §1415(a).

Those procedural safeguards include “an opportunity for any party to present a complaint with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child,” 20 USC §1415(b)(6), and a method for filing a lawsuit to enforce those rights, i.e. a “due process complaint.” 20 USC §1415(b)(7).  Indeed, recognizing that enforcing legal rights is often a cost-prohibitive venture for families, Congress ensured that such families may be reimbursed for attorney’s fees and costs incurred if they prevail in a lawsuit.  20 USC §1415(i)(3)(B)(i)(I).

Therefore, IDEA enables a child with a disability and his/her parents to enforce their legal rights and improves their access to the legal system.

How Aggressive Opposition Conflicts With Ethics Rules

I do believe that school districts are entitled to legal representation and to defend against frivolous claims.  Indeed, IDEA guarantees these rights.  See, e.g. 20 USC §§1415(i)(3)(B)(i)(II) and (III).

However, some school district counsel have employed what we in the litigation field refer to as “scorched Earth tactics.”  This means that they will do anything to win their case even at the expense of a party’s legitimate rights.  Examples of this conduct include: (1) filing a motion to dismiss a due process complaint (which is not provided for in IDEA or most administrative codes); (2) filing other motions that are expensive to contest; (3) making what was intended to be an informal process a very expensive, formal proceeding for the families; and (4) generally being very caustic to parents’ counsel.

In other words, the school district attorneys that employ these tactics are trying to make access to the legal system more difficult and more expensive for families of children with a disability.  I believe that this is in direct and express conflict with the ethics rules cited earlier.  It also seems counter to basic human morality (“personal conscience”).

I would respectfully request that counsel stop these tactics and work in a more collaborative manner in order to comply with the express purpose of Congress in special education cases.  After all, these cases involve children with disabilities who are some of the most vulnerable in our society.

 



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