I filed a brief in a special education case recently opposing a motion to dismiss the case. Want to share the Introduction as it spells out my view of how school districts (and their insurance companies) are treating kids with disabilities:
What is getting lost in the legal gymnastics of the pending motions to dismiss is that this case is about the education of a young disabled child, D.M., who was abused by the public school system and staff with whom he and his parents entrusted his education and safety. Yet, no Defendant in this case wants to accept responsibility or be held accountable for the tragic harm done to D.M., a little boy with Autism and other co-morbidities. Children with Autism are more susceptible to abuse and bullying, particularly in the public school environment.
Although not expressly stated in the Constitution, our highest Court has recognized that education is a fundamental right. See, e.g., Brown v. Board of Education, 347 U.S. 483 (1954) (“In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms.”) Furthermore, through the Equal Protection Clause and other federal legislation, education of disabled children is also protected as a fundamental right and goal of our society. See, e.g., Board of Education v. Rowley, 458 U.S. 176, 179-84, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982).
Apparently, the Defendants in this case must feel that physically restraining and abusing a disabled child; emotionally and psychologically abusing that same disabled child; and exposing that disabled child to an unsafe, hostile education environment through the efforts of purported ‘experts’ on the Child Study Team by placing D.M. in a classroom with unqualified and dangerous personnel is perfectly acceptable by the standards of 2011-12. One must reach this conclusion by the exhibition of the extensive and ultimately futile efforts of the Defendants to dismiss this action.
Many of you probably don’t know there are laws that exist to protect the rights of disabled kids, but perhaps none more important than the special education laws. I’m quite sure that even fewer of you know that your tax dollars are being used to deny those disabled kids their lawful education and thereby violating the laws. So, your taxes are being used to violate or, at a minimum, obstruct the law.
Here is how this works:
1. Special education laws guarantee that kids with disabilities are entitled to a free appropriate public education (FAPE) adapted to meet their individual needs. Makes sense, right? Just because a child is in a wheelchair or has a neurological problem doesn’t mean they should be denied an education, correct? Yes, correct, because it is the law of our country and it is also our moral duty.
2. Your taxes go to fund public education. Thus, the public schools in your district are, partially, funded by your tax dollars. They are also funded, partially, by federal and state government money. Boards of education or school district administrations determine how to spend those dollars – new football uniforms? new books? supplies? building repairs? etc.
3. School districts struggle with special education laws because they have tight budgets and sometimes it is expensive to comply with these laws. Yet, the reality is that they simply need to redistribute that budget to comply. Indeed, schools get extra money from the federal and state governments depending on the number of disabled kids in that school district. So, maybe the football team can go another year with the same uniforms in order to assure that the disabled kids get an equal education. Or maybe they have to contract with a different school supplies vendor who will offer a discount.
4. But, instead of taking some of those cost-saving or redistribution of budget measures, many school districts elect to fight against enforcement of the special education laws. Some school districts – either blatantly or unknowingly – violate those laws by denying services or the educational needs of those children. The school administrations hire attorneys to represent them and battle parents who are simply trying to get an equal education for their disabled child.
Now, let me stop for a minute and focus on that fact. The parents of children with disabilities didn’t ask to have a disabled child. They had no choice in the matter. Often, they have no choice on where they live – it is usually tied with where their job / source of income is. So, they are already dealing with the stress that their child has a disability and are probably incurring substantial medical expenses to address the disability. And, the people that they hoped to trust most with the education of their child – the local public school district – is putting up a fight with them.
5. Now, it’s probably obvious that the school district has to pay for the attorneys they hire. Where do you think that money comes from? It comes from the school district’s budget. And if we circle back to #2 above, the school district’s budget comes from, in large part, YOU – the taxpayers. So, the legal fees being spent to fight against parents who are trying to help their disabled child is money you have given to the schools for public education.
And, this is no small amount. Some special education cases are fought with such vigilance, that school district attorneys rack up tens (sometimes hundreds) of thousands of dollars in bills. The other trick they would pull is when someone tried to find out how much was spent, the school districts would claim the attorney’s bills were privileged and confidential information and would not release them.
Well, that is no more. Because those legal fees are being paid by tax dollars, the attorney’s bills are public records that must be disclosed just like other public records. Recently, the California Supreme Court said that such attorney’s fees invoices are public records and must be disclosed under that state’s public records act. I believe that every state’s public records act will be, if it isn’t already, applied in that same way.
It is time that you know that your tax dollars are being spent to deny kids with disabilities a free public education, the same education that non-disabled kids receive without any dispute. This is immoral and if you want to stop it, you need to get active in your local board of education or show up to meetings and complain about this.
Take some action and stop this nonsense!
New article just published on mediation and five things that parents should know about mediation in special education cases. Kindly published by my friends at The Special Education Guide: