Supreme Court Petition for Writ Filed on Burden of Proof in Special Ed Cases

Filed today is a Petition for Writ of Certiorari to the U.S. Supreme Court seeking the Justices take up a case involving burden of proof in a special education case when a school district or public agency seeks to change the placement of a child with a disability.  The question presented is:

Under the Individuals with Disabilities Education Act, parents of a child with a disability, who previously received special education and related services from a public agency, may unilaterally enroll their student in a private school and thereafter seek reimbursement for such private placement from the public school. 20 U.S.C. §1412(a)(10)(C)(ii). In Florence County School District Four v. Carter, this Court held that parents initially seeking such relief carry the burden of proving “(1) that the public placement violated IDEA, and (2) that the private school placement was proper under the act.” 510 U.S. 7, 15 (1993).

This Court again addressed the issue of burden of proof in an initial private placement IDEA case in Schaffer v. Weast, 546 U.S. 49 (2005), holding that the “burden of persuasion lies where it usually falls, upon the party seeking relief.” Id. at 58. Yet, nearly fifteen years on from Schaffer, the circuits are desperately divided on the burden of proof when a school district proposes to change the placement of a child with a disability. In this case, the Ninth Circuit, applying the minority position, held that because the parents initiated the administrative proceedings, they bore the burden of proof.

1. Whether the burden of proof shifts when the public agency seeks to change the educational placement of a child with a disability.

Below is a link to the Petition and Appendix filed today with the Court:

Petition

Appendix

State Graduation Requirements vs. Special Education Law – Who Wins?

Before I answer the question in the title, let me share a true story.

I appeared before a special ed hearing officer on behalf of a child with a disability – let’s call the child Chris (changed to protect identity).  Chris has severe learning disabilities and is far behind age-equivalent peers.  Chris does not do well in English class.  Chris is forced take Spanish as a foreign language requirement.  I suggested to the hearing officer that Chris should be excused from the foreign language requirement.  The school district attorney said that can’t happen because there is a state requirement that must be fulfilled.  The hearing officer agreed and said that Chris could simply go to Spanish class and they could have parties and poke a pinata to meet the requirement. . . .

I paused, not quite sure that I heard the hearing officer correctly.  I said, “Really?” in a disgusted tone.  The fact that a hearing officer could be that ignorant, discriminatory towards children with disabilities, and racist was quite shocking to me.  But that’s not the entire point of the story.

State Graduation Requirements

Most states have mandatory requirements for graduation.  For example, in New Jersey, here is the list of subject areas and number of credits required to graduate high school:

  • Language arts literacy: 20
  • Math: 15
  • Science: 15
  • Social studies: 15
  • Financial, economic, business and entrepreneurial literacy: 2.5
  • Health, safety and physical education: 3.75 per year
  • Visual and performing arts: 5
  • Career-technical education: 5
  • World languages: 5

But what if your child has a disability that limits or prohibits his/her participation in gym class? Or if your child’s disability is dyslexia or other learning disability that makes participation in foreign language class an impossible task?  What if the disability clashes with these graduation requirements?

What IDEA Says

The Individuals with Disabilities Education Act (IDEA) does not directly address state graduation requirements.  However, IDEA does provide that an Individualized Education Program (IEP) must include “a statement of the program modifications or supports for school personnel that will be provided for the child.” 1

The IEP must also include “an explanation of the extent, if any, to which the child will not participate with nondisabled children in the regular class and in the activities” 2 and “a statement of any individual appropriate accommodations that are necessary to measure the academic achievement and functional performance of the child on State and districtwide assessments.” 3 In other words, the school district can provide accommodations so the child can still meet standardized testing.  The last I checked, physical education and foreign language are not parts of state standardized tests.

Now we have a clash – state requirements mandate things that your child can’t do vs. IDEA says you can design an IEP to modify these requirements.  School districts must provide accommodations or modify the curriculum in an IEP so as to  “be appropriately ambitious in light of [the child’s] circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives.” 4

Who Wins This Cage Match?

IDEA should win.  I say “should” because not all judges understand what we all learned in grade school civics class – that federal law is more powerful than state law. This is commonly referred to as the Supremacy Clause of the U.S. Constitution which reads:

This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

U.S. Constitution, Article VI, Paragraph 2.  The Supremacy Clause prohibits states from interfering with the federal government’s exercise of its constitutional powers and from making or altering any laws that are exclusively entrusted to the federal government

IDEA is federal law established by Congress.  States may not make laws or rules that conflict with the federal government’s law-making powers or laws established by Congress.

Six years ago a federal appeals court addressed this problem in the context of a special education case.  The U.S. Court of Appeals for the Third Circuit wrote:

Under the doctrine of federal preemption, which is rooted in the Supremacy Clause of the Constitution of the United States, state laws are invalid if they “’interfere with, or are contrary to, federal law.’” Fellner v. Tri-Union Seafoods, L.L.C., 539 F.3d 237, 242 (3rd Cir. 2008) (quoting Hillsborough Cnty. v. Automated Med. Labs., 471 U.S. 707, 712 (1985)). “There are three types of preemption: express preemption and two types of implied preemption, field preemption and conflict preemption.” Treasurer of N.J. v. U.S. Dep’t of Treasury, 684 F.3d 382, 406 (3rd Cir. 2012). Conflict preemption is found where “compliance with both federal and state regulations is a physical impossibility,” Fla. Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-43 (1963), or where state law erects an “obstacle to the accomplishment and execution of the full purposes and objectives of Congress,” Farina v. Nokia Inc., 625 F.3d 97, 115 (3rd Cir. 2010) (internal quotation marks omitted).

R.B. v. Mastery Charter School, 532 Fed. Appx. 136 (3rd Cir. 2013).  That Court went on to hold that the ‘Stay Put’ Rule under IDEA prevailed over Pennsylvania state truancy law.  The state law said that if a student is absent for 10 or more consecutive days, then the student can be disenrolled. 5  The Court said that because R.B. had an IEP and had initiated a complaint against Mastery Charter School, federal ‘Stay Put’ won over the state disenrollment law and the school could not disenroll R.B.

A Final Word?

This is not likely the final word on this issue.  But it is an argument that parents should make if a state law – like a graduation requirement – conflicts with the rights of a child with a disability under federal IDEA law.  That also includes other federal laws, like the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act of 1973 (§504).  Hopefully, federal law wins and, more importantly, the children win!


1 20 U.S.C. §1414(d)(1)(A)(i)(IV).

2 20 U.S.C. §1414(d)(1)(A)(i)(V).

3 20 U.S.C. §1414(d)(1)(A)(i)(VI)(aa).

4 Endrew F. v. Douglas County School Dist., 137 S.Ct. 988, 1000, 580 U.S. ____, 197 L. Ed. 2d 335 (2017).

5 22 Pa. Code §11.24.

Twice (Thrice?) Exceptional Curriculum – Antonia Guccione, MA, MS [Guest Blog Post]

Possession of a college degree as well as a Special Education credential does not necessarily mean one is ready for all the challenges of meeting the needs of diverse learners. If one thinks having a curriculum guide and a set of text books is going to do it, one is mistaken and must seriously reconsider his or her career choice.  Individual planning for certain groups and learning styles is a must.  But don’t count out lessons geared for  gifted and talented students when planning for those with learning or other disabilities.

I learned this through a course I took in teaching the gifted and talented offered by a local college and taught by an expert in the field of Twice Exceptional Education, Dr. Susan Baum. “A Toolkit for Teens” served as the basis of many of the lectures.  The course was not simply taught in a didactic manner; it was also taught experientially.  There were lectures, but there were also less traditional experiences.

Through this course, I learned to weave cinematherapy into my Middle and High School language arts classes. Important themes, such as bullying and independence as well as deceit and, of course good and evil, could be studied by watching characters and the choices they made in movies such as The Princess Diaries, Contact, and Cast Away.   The onus was on the characters in the movies, not on the students in the class. Writing summaries, taking notes, making inferences, and drawing conclusions were included at every step.  If writing was a challenge, drawing, role playing, and giving speeches were encouraged.   We also studied goal setting, action plans, and time management.  These lent themselves nicely to mathematical lessons. We learned about stress busters as tools to combat anxiety and how and when to use them.  We studied Active Listening and “I Statements” as well as the difference between assertive versus aggressive language and actions.

The bottom line is that in the quest to meet standards and assessments, there are different paths to follow. Differentiation is a complex process which requires creativity and skill.  I strongly recommend this Toolkit for Teens in planning your next semester.  It is a strength-based model and focuses on what students can do despite what challenges they might have.  Whether students have been diagnosed with Anxiety Disorder, ADHD, or Executive Functioning issues, these lessons and activities provide helpful strategies. Don’t be afraid to think outside the box. All students need enrichment activities.


Antonia Guccione, MA; MS

Antonia is a consultant, educator, and author with over forty years’ experience working with students of all ages, strengths, and needs.

10 Tips For Hiring A Special Education Lawyer

When parents disagree with their child’s school about special education or services the student with a disability is receiving, they might consider hiring a lawyer.  This may be the first time they’ve ever needed or interacted with an attorney, so they may be overwhelmed and unsure how to decide whether to employ his/her services. I’ve tried to simplify the process in the following 10 tips for hiring a special education lawyer: 1. Don’t tell your whole story during the first meeting or phone call. Most special education lawyers have a pretty good idea why you are calling them and have dealt with situations like yours.  Don’t expect legal advice because he/she needs to learn your case and an initial meeting is usually not thorough enough to do that.  Plus, lawyers like to do legal research before they give advice or opinions.  We often want to make sure we know the current law on an issue.  All this goes hand-in-hand with . . . 2. Remember that time = $$$$. Abraham Lincoln famously said, “A lawyer’s time and advice are his stock in trade.” In other words, that is how lawyers get paid.  Our knowledge and expertise in legal matters is the value we bring to the table.  The fact that you are calling a lawyer indicates you can’t do it without help from someone who understands the legal system.  Plus, lawyers have cases other than yours and they will give equal priority to theirs as they will to yours. 3. Shop Around. I recommend you talk to 2 or 3 lawyers before hiring one of them.  Not every lawyer is the same.  Ask yourself what you want your lawyer to be – aggressive? inexpensive? passionate? reasonable? Are you going to take the lead in helping your child or do you want the lawyer to take charge?  Most importantly, not every lawyer bills fees the same way.  It’s always good to compare among choices. One of the ways to compare is to . . . 4. Research the lawyer. You’re probably not sure how to do that.  There are websites that rate lawyers – Avvo; LinkedIn; Facebook; Yelp – but don’t put a ton of stock in those because lawyers’ friends may be posting the reviews.  Look at the lawyer’s credentials – where they went to law school; how long have they been admitted to the bar; how long has he/she been doing special education legal work; what is his/her reputation in the community or with peers; etc.  Much of this information you can get on websites, but ask your friends. Or when talking to a lawyer you’re thinking of hiring . . . 5. Ask about other special education cases he/she has handled. Lawyers won’t (and shouldn’t) name names of other clients, but they can describe generally other special education cases they’ve handled and what types of disabilities their other clients’ children had.  Ask if they won the case or if it settled; ask what the main issue / problem was; ask how hard the battle with the school district was; ask the highest court they’ve taken a case to; and ask if they have ever dealt with a case similar to yours. And because special education law is becoming more about litigation (lawsuits), ask . . . 6. Does the lawyer know about both special education law and litigation? School districts are fighting harder than ever in special education disputes.  In fact, recently a colleague (who is a trial attorney, but not a special education lawyer) commented that he was shocked at how difficult the school district’s attorney was in a case before referring it to me.  Yes, it is going to be a hard fight and you need a lawyer who understands legal procedure, evidence, examining witnesses, legal precedent, and how to argue persuasively – on top of knowing special education law. 7. Do you like him/her? This sounds petty, but it’s not.  You need to feel comfortable with your lawyer; not as a friend, but as someone who understands you and what you want for your child.  This is a business relationship and just like you want to get along with your plumber, your mechanic, your doctor . . . you want to make sure this relationship is solid. To make sure that this business relationship goes well . . . 8. Get a contract. In legal terms, this is a fee agreement.  Don’t be afraid to negotiate.  Do you walk into a car dealership and just say, “OK, I’ll pay that price for this car with nothing customized to my needs”???  Of course not (or at least you shouldn’t).  You also shouldn’t just accept what the lawyer says for the agreement.  A fee agreement (also called a retainer agreement) is your contract with your lawyer.  You want to make sure that (a) the services are what you want, no more, no less; (b) you understand how fees will be charged and how much; (c) in special education cases, you may be able to recover those fees and if you do, how will they be reimbursed to you; (d) how long the contract shall last; (e) what happens if you fire the lawyer or change lawyers; and (f) what happens if you break the contract.  Expect the best, but plan for the worst. 9. Don’t ask the lawyer to work for free. First, go re-read #2 above.  You may have a great case, but you are asking a lawyer to use part of his/her workday to help you with your case.  Just like an electrician who charges for the time he/she is at your house to fix the wiring, the lawyer needs to be paid for the time spent working on your case.  If you were charged with a crime and needed a criminal defense lawyer, you’d probably find the money to pay him/her to represent you.  The same should apply for a special education lawyer who is representing you and your child with a disability.  Lawyers have bills, need food, clothes, and some pay college tuition – like you.  If you have a job, you expect your employer to pay you.  You are your lawyer’s employer. 10. Your lawyer should be passionate about special education. Notice I didn’t end that sentence with “law”.  Your lawyer should understand that the ultimate goal is to help with your child’s education.  Are they passionate about helping kids with disabilities?  Does he/she have a child with a disability? Ask how and why the attorney got into special education law. You want to hire a lawyer who is passionate about special education so he/she will be passionate and understanding about your case and your child.  That way, you can work as a team to help your child. I hope these tips help the daunting task of hiring a special education lawyer.  

The Appropriate Use of Assistive Technology for Students – Antonia Guccione, MA, MS [Guest Blog Post]

Discerning how, when, and why students should access Assistive Technology to support learning involves many levels of decision making.  It all starts with the IEP, the student’s present levels of performance, his educational needs, and the impact those needs have on learning. Thank goodness there is help! The Wisconsin Assistive Technology Initiative provides a series of tools for educators and parents. The WATI Assistive Technology Consideration Guide is a great place to start if you suspect that there are tools that are necessary to support a student’s learning.

For example, if a student has an issue with writing, it can seriously impact that student’s ability to function in the classroom and do grade level work. For our purposes, we will assume an upper elementary age male child and begin our assessment and decision making there.  He may not be able to express thoughts, opinions, or ideas on paper.  How will he form complete sentences and/or organized paragraphs?  How can Assistive Technology help him?

Discerning how, when, and why students should access Assistive Technology to support learning involves many levels of decision making.  It all starts with the IEP, the student’s present levels of performance, his educational needs, and the impact those needs have on learning. Thank goodness there is help! The Wisconsin Assistive Technology Initiative provides a series of tools for educators and parents. The WATI Assistive Technology Consideration Guide is a great place to start if you suspect that there are tools that are necessary to support a student’s learning.

http://www.wati.org/wp-content/uploads/2017/10/WATI-Assessment.pdf [PDF file]

THE WATI

Enter the WATI Assistive Technology Consideration Guide. First, the team must agree on the impact of this issue.  While many are possible, let’s assume that the major impact for this student is his ability to do grade level work in the classroom and express his thoughts on paper in an organized paragraph.  The question becomes whether there is currently assistive technology- either devices, tools, hardware, or software that might help address this need?

Referring to the Assistive Technology Continuum, there are Low Tech, Mid Tech, and High-Tech tools to consider. Have any been tried?  Is there data to support the trials?  Possible Low-Tech tools include specialized pens, raised paper, highlighters, post -its, and slanted surfaces. Mid Tech Tools include tape recorders, spell checkers and dictionaries.  High Tech tools include word prediction software, word banks, and word processors.

Finally, would the use of these assistive technology tools support the student in performing this skill more easily in the least restrictive environment? If the answer is yes, it is time to consult with the IEP team and document this need, its impact, and interventions that might be helpful.

https://adayinourshoes.co m/wp-content/uploads/2015/09/WATI-Assessing-Students-Needs-for-Assistive-Technology.pdf [PDF file]

Based on lack of progress on IEP goals, the Committee on Special Education must consider a student’s need for assistive technology devices and/or services, as well as possible modifications and accommodations.  If a student needs such devices and/or services, the appropriate sections of the IEP must specify the:

  • nature of the assistive technology to be provided; 
  • services the student needs to use the assistive technology device; 
  • frequency, and duration of such services; 
  • location where the assistive technology devices and/or services will be provided; and 
  • whether such a device is required to be used in the student’s home or another setting in order for the student to receive a free appropriate public education.

http://www.p12.nysed.gov/specialed/publications/iepguidance/present.htm

GOALS

Goals must be written accordingly, and I recommend using the concept of a SMART Goal.  A specific goal which is measurable, attainable, realistic, and timely has a greater chance of being accomplished than a general goal.

https://east.madison.k12.wi.us/files/east/Smart%20Goals%20Information%20CC%2011_0.pdf [PDF file]

Here is an example of an objective taken directly from an AT-Resource Guide for written communication which utilizes Assistive Technology:

Goal: Jon will use an electronic graphic organizer to write an opening topic, a closing, and three supporting detail sentences to construct a five-sentence paragraph, by the end of the first semester.

Objective: Given five sentences in an electronic graphic organizer, Jon will identify and arrange the opening topic, the closing, and three supporting detail sentences to create a paragraph, by the end of the first six weeks of school.

https://www.ocali.org/up_doc/AT_Resource_Guide_6.pdf [PDF file]

IN THE IEP

Another resource which offers support to parents in understanding what Assistive Technology is and how to get it into a student’s IEP is noted below:

https://adayinourshoes.com/assistive-technology/

Once the tools have been obtained, how does one manage the Assistive Technology?  Who trains the teachers and parents? Who trains the student?  But that is a whole other discussion!

Even if the present levels of performance indicate a student who can participate in a discussion, that doesn’t mean he can write about it. A basic understanding of texts and current events is not the issue. However, ask him to summarize that information in a paragraph and the sky falls down.  On the IEP, present levels of performance are recorded, and appropriate sources of data have been discussed and administered.  These have included both formal and informal assessments, with work samples, and data charts to show progress or lack of progress over time. Are there modifications and accommodations that have been incorporated? Have these interventions resulted in significant progress or is this student still having difficulty responding to a writing prompt.

FINAL NOTES

In conclusion, Assistive Technology provides many tools to support learning and can result in a positive outcome.  It is a timely process, but one worth pursuing. Better to know what works sooner rather than later.  Assess the student’s needs, document the impact on learning, and then choose the appropriate tool to support learning in the least restrictive environment.  Keep accurate data to demonstrate progress.

If you suspect your child could benefit from assistive technology, reach out to the professionals involved in his education.  In addition, access the sites documented in this article.  I’ve only presented one need, and that is for writing. I haven’t even touched on communication, mobility, motor aspects of writing, reading, learning and studying, math, recreation, or activities of daily living, vision, hearing, and language processing. Understand that the array of Assistive Technology Tools is vast.  Following a process to obtain these tools may be involved, but it can result in access to tools that can help this child for life. 


Antonia Guccione, MA; MS

Antonia is a consultant, educator, and author with over forty years’ experience working with students of all ages, strengths, and needs.

Why Schools Shouldn’t Reject Your Child’s Diagnosis

Recently, I have heard (far too many) stories from parents that the schools are taking away services from their child and/or denying providing services because the school does not believe the child’s diagnosis.  This is wrong and illegal on so many levels, but I will adress the three (3) most important reasons why schools should never deny or reject a child’s diagnosis. 1. Only licensed physicians (medical doctors, doctors of osteopathy, and/or nurse practitioners depending on your state law) may provide a diagnosis and most IEP team members from the school district are NOT licensed physicians (school psychologists are not licensed physicians). As an example, in New Jersey (and most states have similar laws to my knowledge) a person must have a license to “practice medicine or surgery”.  N.J.S.A. 45:9-6.  Diagnosis is practicing medicine.  N.J.S.A. 45:9-5.1. If one of the school staff suggests or takes the position that your child doesn’t have a diagnosis that has been confirmed by a physician, ask such person if he/she holds a physician’s license in your state. 2. Many diagnoses are “hidden” disorders or neurological problems, but should not be denied simply because you can’t “see” them. If a child has Down Syndrome or Cerebral Palsy or Muscular Dystrophy or is an amputee, the disability is likely obvious.  (I prefer not to automatically assume it is.)  However, many disorders like Autism, ADHD, Generalized Anxiety Disorder, Dyslexia, Cystic Fibrosis, Sensory or Auditory Processing Disorder, Krohn’s Disease, Depression, and others are what I call “hidden” disorders because they are often not obvious just observing a child.  This is another reason that only licensed physicians who understand what tests need to be performed in order to make the proper diagnosis should do so.  I’ve heard teachers and school administrators (people who should know better) say, “But [he/she] looks normal!”  What an awful comment about a child with a disability. Frankly, I can’t understand why school personnel even question this.  For example, I have diabetes – a neurological disease.  Looking at me, you would not know this.  I do long charity bicycle rides of 70+ miles.  Most people would say, “He seems fine.”  While that may be the outward appearance, does it mean that I don’t have diabetes or that the disease does not affect me? It is wrong to deny that. The huge problem with this is that when services are denied because the school does not observe the disorder, the child’s disorder may have devastating effects.  Children with Autism may have meltdowns; children with ADHD may be distracted in classes; children with Auditory Processing Disorder may become disoriented or frightened; children with Krohn’s Disease may become exhausted; etc.  Once this occurs, access to education is impeded.  This is exactly what IDEA, 504, ADA, and other laws are designed to prevent. 3. Schools may respond that they don’t witness how the disability impacts the education, but they also don’t see the aftermath when the child arrives home. While it is true that under IDEA and 504, there are two parts to the question: (a) does the child have a diagnosis that fits them within an eligibility category? and (b) does the child need special education and related services or accommodations because of the disability?  20 U.S.C. 1401(3)(A); 29 U.S.C. 794. However, children have amazing capacity to overcome their disabilities.  In colloqual terms, they can “hold it together” during school hours, but then come home and “let it all out”.  Children know home is their “safe space” and if anxiety, frustration, fear, depression, anger, or similar emotions build up during the school day because the disability is not being recognized by the school, the parents must bear the brunt of those released emotions in the home. In fact, the U.S. Department of Education issued a guidance letter that states “IDEA and the regulations clearly establish that the determination about whether a child is a child with a disability is not limited to information about the child’s academic performance.”  USDOE Guidance, Letter to Clarke (2007).  That means behavior should also be considered – whether in school or in the home, because remember a parent is a critical member of the IEP team.  20 U.S.C. 1414(d)(1)(B)(i). Conclusion Schools should not reject a child’s diagnosis made by a licensed physician because (1) it is unlikely that an IEP team member is a physician; (2) just because they can’t “see” the disability doesn’t mean it’s not there; and (3) they need to consider all effects of the disability, including behaviors at home triggered by the failure to address the issues at school. If a school rescinds services to your child under an IEP or takes away the IEP because they don’t believe your child has a disability, contact a special education lawyer ASAP.  

Why Special Education Due Process Cases Are NOT Full-Blown Lawsuits

School board attorneys have managed to turn special education due process hearings into all-out, scorched Earth lawsuits, as if it was Microsoft vs. IBM.  In fact, they have convinced administrative hearing officers and judges that this is the way it should be.

But Due Process cases are not supposed to be full-blown litigation.  Here are 5 reasons why:

1. Timing.  Most civil lawsuits take more than a year to go to trial; in some states they can take up to 5 years before they go to trial.  This is why IDEA law requires cases to take no more than 75 days from complaint to decision20 U.S.C. §1415(f) (30 days resolution period + 45 days for hearing officer to issue a decision); see also 34 C.F.R. §300.515.  If a special education problem lingers too long, a child is missing out on his/her education.  Can you imagine if a case lasted 5 years?  The child would go from 3rd grade to 8th grade with no help.  Congress never intended this to happen.

2. Discovery. Civil litigation follows the Rules of Civil Procedure, which include discovery (getting documents, asking questions through interrogatories or depositions, and inspections of places).  By contrast, “discovery” in Due Process cases is informal.  In fact, the  hearing is the opportunity to get discovery, not before.  See 20 U.S.C. §1415(h); 34 C.F.R. §300.512.

3. Relief.  If you file a civil suit against someone in a court of law, you are seeking money.  Microsoft wants $10 billion from IBM.  In a special education case, you want your student with a disability to get a Free Appropriate Public Education.  In other words, you want the school to start teaching and being fair to your child.  See 20 U.S.C. §1415(i)(2)(C)(iii) (“shall grant such relief as the court determines is appropriate”); 34 C.F.R. §300.516(c)(3).  [Most courts have interpreted this provision to include an administrative hearing officer.]

4. Executive Branch. Civil lawsuits are conducted in courts of law – that means, the judicial branch of government.  See, e.g., Article III, U.S. Constitution.  Due process cases are conducted by an administrative hearing officer appointed by your state’s Department of Education.  20 U.S.C. §1415(f)(3)(A); 34 C.F.R. §300.511(c).  They are executive branch officers; not a court of law.

5. Fairness.  When two parties battle it out in a civil lawsuit, we presume there is a balance of power between them.  Justice is determined by the evidence.  In special education cases, Congress acknowledged that the parents are at a legal disadvantage20 U.S.C. §1400(d)(1)(b) (“The purposes of IDEA are . . . to ensure that the rights of children with disabilities and parents of such children are protected”); 34 C.F.R. §300.1(b).  Most parents are not lawyers, don’t have any legal training, nor have the financial resources like school districts and state governments.  IDEA attempts to level the playing field.

Conclusion

If the lawyer for the school district involved in your special education dispute is trying to turn your case into Microsoft vs. IBM, fight back against their tactics and let the hearing officer know that due process  hearings are not supposed to be all-out litigation war.

If you need the assistance of an attorney who will push back against these school district counsel tactics, then contact SchoolKidsLawyer.com.

 

Public Schools Have Made Your Child the Enemy and You, the Taxpayer, Are Funding Their Battle – Part II (A Case Study)

An Open Letter to the Williamson County (TN) School Board and Williamson County (TN) Commission from a Concerned Parent . . .

[Reprinted with permission.  Names withheld to protect the identity of the child.]

 

Dear County Commissioners and School Board Members,

I am writing regarding a resolution that both the Williamson County School Board and the County Commission are being asked to approve. The resolution includes amending the 2017-2018 general purchase school budget so that $575,000 can be used for legal fees for special education due process cases The resolution is attached. I am asking the School Board and the County Commission to ask two important questions before voting on this resolution:

1) How many special education due process cases is this $575,000 in legal fees being used for?

2) What was the total amount of money that these parents were asking Williamson County Schools to pay in their due process claim(s)?

If the $575,000 in legal fees surpasses the amount that Williamson County Schools was asked to pay the parents in the first place, as a taxpayer, I encourage you to ask district leaders additional questions.

I am a parent of one of the current special education due process cases against Williamson County Schools and because of this know information that you may not be aware of. Over the years of raising four children there have been times where one of them was struggling but wasn’t ready to talk about it. In some of those instances I remember encouraging them to share with me and telling them that I can’t help what I don’t know. I too believe that people who are elected to serve the community can’t help what they don’t know and it is with that in mind that I write to you today.

In the last five years Williamson County Schools used $570,000 of the taxpayer’s money to pay The Law Office of Melinda Jacobs to fight special education due process cases. As a taxpayer, I am alarmed at the amount of money I see Williamson County Schools spending in our one small claim. I believe that Williamson County Schools is easily on their way to spend more in legal fees with The Law Office of Melinda Jacobs and their expert witnesses to fight our claim prior to the first day of trial than the amount of money I am asking to be reimbursed. My claim is only for the special education services I paid for and not a penny more. Here are just a few of many examples that make me concerned about how tax dollars are being spent.

There is a large amount of taxpayer money being spent on unnecessary depositions. The Law Office of Melinda Jacobs is spending more days doing depositions than the total number of days allotted for our entire trial. They are deposing at least 21 of our people and are flying to New York, California and Missouri to depose providers that only spent a few hours with my child. Some of the people they are deposing didn’t even provide services during the time period of this due process claim so are irrelevant to the case.

There is a large amount of taxpayer money being spent on unnecessary expert witnesses. Williamson County Schools hired two expert witnesses which will likely cost the taxpayers tens of thousands of dollars. They hired David Rostetter to observe my son in his private school in April of 2018 even though our case is for the 2015/2016 and 2016/2017 school years. If Mike Looney and Carol Hendlmyer expect you to approve this they should have to explain to you how an observation in April of 2018 is relevant and necessary especially when there were already reports from a Williamson County School psychologist and a Williamson County School special education teacher who observed my child in this private school when developing the 2015/2016 IEP.

I encourage you to ask Mike Looney and Carol Hendlmyer how much money Williamson County Schools have paid their expert David Rostetter in the past and how much they anticipate paying him in our case and compare that figure alone to the amount of our claim. I think you will find it alarming. In addition, you might want to ask if there are any concerns with David Rostetter’s ability to conduct an observation being that he has been legally blind since the age of 12.

There is a large amount of taxpayer money being spent on other unnecessary attorney fees. Williamson County Schools paid for THREE attorneys from The Law Office of Melinda Jacobs as well as several school employees to go to a mediation for our case when they had zero intentions of settling the case that day. Did the taxpayers really need to pay for three lawyers and several Williamson County School employees that day when they already knew that they were not going to even attempt to settle the case

In addition, I would encourage the School Board or the County Commission to speak to Melinda Jacobs or another attorney special education attorney about the merits of the special education due process cases before approving this money.

In closing, over the last five years Williamson County Schools used $570,000 of taxpayer’s money (126 pages of invoices) to pay The Law Office of Melinda Jacobs to fight special education due process cases. More money may have been paid to other law firms as well. Now, they are asking you, us, for $575,000 more.

Last month Williamson County taxpayers, 8,155 of them, voted for a sales tax increase to fund Williamson County Schools. I would have to think that a large number of them would not have voted the way they did if they were aware of the amount of money that is being wasted on special education due process legal fees. Mike Looney and Carol Hendlmyer have not been good stewards of taxpayer dollars in regards to these legal fees and your oversight is needed to avoid the mistakes that other districts have made. Take a look at the actions of another Tennessee county in the Deal v Hamilton County TN Bd of Ed (6th Cir 2004) where the district spent $2.3 million to fight and lose a special education due process case that they could have settled for $150,000:

http://www.chattanoogan.com/2005/3/14/63675/Atlanta-Law-Firm-Charges-To-County.aspx

At one point, Melinda Jacobs, the attorney Williamson County Schools is using against us, worked for The Weatherly Law Firm who was the law firm for the school district in this case. David Rostetter, the expert witness Williamson County Schools is using against us was one of the expert witnesses in this case and was paid $74,632.47 for his testimony. Melinda Jacobs who has practiced in Knoxville since 1999 opened up a second location here in Franklin on August 15, 2016.

How much more of Williamson County taxpayer’s money is she expecting to make this second location worth her while? Would her other clients pay to put her up in expensive hotels like the Franklin Marriott as Williamson County Schools does? Again, your oversight is needed.

Who is on the IEP Team?

Perhaps one of the most confusing parts of special education law for parents (and some schools) is who is on the IEP team.  There are both “mandatory” members of the IEP team as well as “permissive” members.  IDEA makes this very clear.

Mandatory Members of the IEP Team

There are five (5) mandatory members of the IEP team set forth in IDEA.  They are (in order as the statute lists them):

  1. The parent(s);
  2. At least one regular education teacher who interacts with the child in a general education setting;
  3. At least one special education teacher or provider who interacts with the child;
  4. A representative of the school district (“local educational agency”) who meets certain requirements (see below); and
  5. “an individual who can interpret the instructional implications of evaluation results” (who may be also #2-4).

20 U.S.C. §1414(d)(1)(B); 34 C.F.R. §300.321(a).

Before moving on to the permissive members, let me clarify some things about the mandatory members.  The word “and” is underlined above, because that means ALL five are required.  If Congress meant that only 3 or 4 of those persons were necessary, they would have used the term “or”.  Remember Conjunction Junction from School Kids Rock?

The Parent(s)

At least one parent must be present at an IEP meeting. If there are two parents, both are not required to be there – one can act for both.  But, notice the parent(s) are listed first.

One of the key Procedural Safeguards is “an opportunity for the parents of a child with a disability . . . to participate in meetings with respect to the identification, evaluation, and educational placement of the child.” 20 U.S.C. §1415(b)(1); 34 C.F.R. §300.501(b)(1) . The parents of a child with a disability are mandatory members of the IEP Team. 20 U.S.C. §1414(d)(1)(B)(i); 34 C.F.R. §300.321(a)(1) (emphasis added.)

Indeed, “the concerns of the parents for enhancing the education of their child” is critical in developing the child’s IEP. 20 U.S.C. §1414(d)(3)(A)(ii); 34 C.F.R. §300.324(a)(1)(ii); see also Honig v. Doe, 484 U.S. 305 (1988); Schaffer v. Weast, 546 U.S. 49, 53, 126 S.Ct. 528, 163 L.Ed.2d 387 (2005) (Parents play “a significant role” in the development of each child’s IEP.)

Parental participation in an IEP meeting is so vital, it is set forth twice in the IDEA regulations. 34 C.F.R. §§300.322(a), (c) and (d) ; 34 C.F.R. §300.501(b)(1).

The LEA Representative

The representative of the school district can’t be just anyone.  Often the school will send a case manager or principal or other administration staff member as the representative, but such person might not meet the requirements of IDEA.

The LEA representative must be:

  • qualified to provide, or supervise the provision of, specially designed instruction to meet the unique needs of children with disabilities;
  • knowledgeable about the general education curriculum; and
  • knowledgeable about the availability of resources of the local educational agency (school district).

20 U.S.C. §1414(d)(1)(B)(iv); 34 C.F.R. §300.321(a)(4).

In other words, this person must have supervisory capabilities over special education curriculum and services, know the general education curriculum, and know the services available as well as placement options within the district.  If the person the school district sends to the IEP meeting is constantly having to check with someone else about whether the school district can provide such services, the wrong person is in the meeting.

The Evaluation Interpreter

While the fifth mandatory member is only stated as “an individual who can interpret the instructional implications of evaluation results”, IDEA is no more specific and doesn’t define who this is.

Typically, this person is the school psychologist because that person’s role is to translate evaluation reports into special education and services to be provided to meet the needs of the child.  Most parents don’t know how to interpret evaluation reports.  Heck, even some highly skilled teachers don’t know how either.

Make sure someone is in the meeting who can put testing results into actions and services for your child.

Permissive Members of the IEP Team

IDEA allows other persons to be on the IEP Team.  Specifically,

  • “at the discretion of the parent or the agency, other individuals who have knowledge or special expertise regarding the child, including related services personnel as appropriate”
  • “whenever appropriate, the child with a disability.”

These are “permissive” members because they are not required to be there and are only there if the other IEP team members think it is appropriate or necessary.

The first of these options has been interpreted to include “education advocates” for parents; social workers or therapists contracted by the school district; or, anyone else who might have valuable input into the formation of an IEP.  There is no restriction on the number of these individuals so long as they have the requisite knowledge about the child or services and it doesn’t bog down development of the IEP.

The second option is at the discretion of the parent(s).  Whether you bring your child to an IEP meeting is up to you and most agree that the child should only attend if (a) he/she is emotionally capable of hearing about areas where the boy or girl is struggling; and (b) he/she has valuable input to offer, such as when or where he/she is having difficulties (e.g. “I struggle in math class because of the classroom noise.”)

Is it a properly assembled IEP meeting?

The most important lesson of this article is for both parents and school districts to understand when an IEP meeting is properly constituted.  As stated above, all of the mandatory members must be present [especially the parent(s)].  Without all of the mandatory members present, the proposed IEP may either be improperly designed (because not all of the necessary input was received) or not implemented (because the district does not have the necessary resources) or both.  If there are no permissive members, the meeting can still go forward.

Parents have the motivation to make sure that an IEP meeting is properly assembled so their child receives a FAPE.  School districts have the motivation to ensure that the IEP cannot be challenged on these grounds.  All of this is intended to benefit the child with a disability.

So, if the law is followed on the IEP team, it is a win-win-win.

 

 

 

Relentless – A Michigan Man

I’m going to tell you something about myself, but first I’m going to tell you a story.  You’ll wonder for a paragraph or two where this is going, but stick with me.  You will learn why this post is on my special education law blog.

What is a “Michigan Man”?

There are many articles and blog posts and other sources that try to explain this undefinable quality.   In “What Does It Mean To Be a ‘Michigan Man’?”, author John U. Bacon (a frequent writer about things Michigan, including the football team), admitted that “ultimately, to define it, I have to resort to Supreme Court Justice Potter Stewart’s description of pornography: ‘I know it when I see it.’”

He’s right.  And you have to be a Michigan Man to understand why he’s right.  First, you need a deep association with the University of Michigan (no, not that silly green and white agriculture college in East Lansing, but the Maize and Blue Wolverines of Ann Arbor).  [Note: I hate when after telling people where I graduated, they say “Oh, yeh, Michigan State.” Grrrrr.]

Not this!

Second, you need a passion about doing good work.  That passion requires hard work, sound ethics, and a focus unmatched by competitors.  This quality could be no better demonstrated than in the Amazon Show “All or Nothing: The Michigan Wolverines”.  [Outstanding television if you haven’t seen it yet.]

You strive to be a champion in everything you do, but you are not arrogant or presumptuous in that effort.  Perhaps, most importantly, you must be RELENTLESS.  Opponents always want to take you down and if you let your guard down for a moment, they will defeat you.  [Much like Michigan’s loss to Division II Appalachian State in 2007.]

You must be relentless to be a Michigan Man.

What Has This Got To Do With My Law Practice?

I am a very proud 1984 graduate from the University of Michigan’s College of Literature, Science & the Arts.  I received a Bachelor of Arts degree with a double major and a double minor.  I guess even in my undergraduate studies I was eager.

I don’t pretend to satisfy all of the qualities of a Michigan Man, but I will admit that is my goal.  That is where the practice of law, especially in the area of special education, comes into play.

I am relentless – in my search for justice; in representation of my clients; and in enforcing special education legal rights.

To my clients: Know that I will be relentless on behalf of you and your child with a disability.  If a school district is not meeting the requirements of the law, I will fight to change that so they come into compliance.

To my adversaries: Know that I will be relentless against your tactics.  I have been in litigation for nearly all of my 30 years of practice.  I have witnessed every strategy and method by opponents to try to get clients to back down.  [Some lawyers call this a “Scorched Earth” approach, because the lawyer will try anything – including burning everything – in order to get a favorable result.]  It won’t work with me.  I won’t give up.

Why?

Because I’m relentless.  Because I strive to be a Michigan Man.