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.

USDOE Finds NJDOE Non-Compliant With IDEA 45 Day Rule

Well, well, well.  Seems that someone is taking notice that the NJDOE has been noncompliant with IDEA’s 45 Day Rule (which we’ve written about extensively in the past):

On May 6, 2019, the US Department of Education’s Office of Special Education and Rehabilitative Services (“OSERS”) issued a notice of noncompliance to the NJDOE Commissioner of Education that it is in violation of IDEA’s 45 Day Rule and requires some fixes to the program.

Here is the USDOE’s letter: 190506osers

This will add some fuel to our Class Action case.

Stay tuned!

 

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.

 

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.