Public Schools Have Made Your Child the Enemy and You, the Taxpayer, Are Funding Their Battle

You pay federal taxes.  You have schools in your town.  Those schools have special education programs.  If you’re reading this blog, you’re probably a parent of a child with special needs.

Well, guess what?  If you have a dispute with your school about your child’s IEP or otherwise not meeting your child’s special education needs, YOU are paying for the school to fight against you and your child.

Guess what else? Even if you don’t have a child with special needs or don’t even have a child in the school district, YOU are still paying to have the school fight against the child with a disability and his/her family.

Yes, you heard that right.  YOU are paying to fight against children with disabilities in your community – maybe your own child.

Let me explain this in greater detail and why the system should change.

Federal Funding For Schools

The federal law known as the Individuals with Disabilities Education Act, 20 U.S.C. §§1400 et seq. or “IDEA” protects students with disabilities and guarantees they receive an appopriate education from their local schools.  This is accomplished and enforced through a federal funding mechanism within IDEA.  If a state receives federal funding for its schools, it must provide special education and related services to children with disabilities in its public schools.  20 U.S.C. § 1412.

In other words, some of the federal taxes you pay goes to fund special education and related services for students with disabilities.  You probably don’t object to ensuring a wheelchair-bound child access to the school via ramps or a child with diabetes having access to the school nurse to administer insulin shots.  You also likely don’t object to a chid with a learning disability receiving extra help in the classroom so they can achieve with their non-disabled peers.

YOU don’t object . . . but the schools are.

Where Does the Funding Go?

Those federal funds for special education – your tax dollars – are supposed to be used to assess if children have disabilities and evaluate their needs, prepare Individualized Education Programs or “IEPs” with special education adn related services to meet those needs, and decide the best location to provide those services for the child.  20 U.S.C. §1414.  Just as non-disabled children can get their education at their local public school for free, the goal of IDEA is to provide the same for children with disabilities, called a Free Appropriate Public Education or “FAPE”.  20 U.S.C. §1401(9).

Still sounds pretty reasonable, right?

How Does A School Make Sure It Provides a FAPE?

Schools are supposed to ensure a child with a disability provides a FAPE via two main mechanisms: (1) assembling an IEP team; and (2) ensuring that the rights of the child are protected and the parents are active participants in enforcement of those rights.  Tax dollars pay for schools to assemble an IEP team, which consists of the child’s parents (and the child if appropriate) and several key school personnel, to discuss how best to provide FAPE for the child with a disability.  20 U.S.C. §1414(d)(1).  States and schools must also put procedures in place to secure the legal rights of the child with a disability and his/her parents.  20 U.S.C. §1415.

This is where the system usually breaks down.  Because the parents and the school staff don’t alawys agree on how the IEP is developed or what services are provided to the child with a disability.  Thereby, a dispute arises.

How IDEA Addresses Special Education Disputes – The Problem

IDEA provides mechanisms to address these special education disputes between parents and schools.  If a school wants to do something with which the parents don’t agree or if the school doesn’t want to do something the parents have suggested, the school can issue a Prior Written Notice or “PWN”.  20 U.S.C. §1415(b)(3) and (c)(1).  Parents can review their child’s education records kept by the school as a check on whether the school is providing a FAPE.  20 U.S.C. §1415(b)(1).

There are other “Procedural Safeguards” in IDEA, but none that causes as many problem as a party’s right to file a complaint challenging the “identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child” a/k/a a “Due Process Complaint.”  20 U.S.C. §1415(b)(6) and (f).

Why is this a problem?  Well, anytime lawyers get involved, there’s a problem, right? [He says half-jokingly, half-seriously.]  Each party to a Due Process case has “the right to be accompanied and advised by counsel.”  20 U.S.C. §1415(h)(1).

Still not a bad thing until you realize who is paying the school district’s lawyer’s bill.  The answer is . . . you probably guessed it . . . YOU ARE!

Paying For The School District’s Lawyer

That’s correct.  Whether attorney’s fees are paid directly by the school district’s Board of Education or through insurance (which is purchased using school budget money), the source of the money paid to the lawyers fight against your child with a disability is tax dollars.  YOUR tax dollars.

Schools are misdirecting funds intended to provide education to children with disabilities by spending it on legal bills or insurance to fight special education cases.

So what does that mean?  It means YOU, the taxpayer, are paying for the attorney sitting across the table from you and representing the school district.  The harder the school district lawyer fights, the more YOU are paying him/her.  The school district never has the incentive to resolve the dispute because they’re not truly paying the bill.

Now, I don’t know if you have ever been in a lawsuit before, but if you have, you know what a financial burden it is to pay a lawyer.  You have the incentive to get it over as quickly as possible because, in all likelihood, you are not Bank of America (or Citibank or Goldman Sachs or some other big bank).  But if you didn’t have to pay for your lawyer, you’d fight to the ends of the Earth, right?  That’s how the school district views it.

Not What IDEA Was Designed To Do

IDEA was not set up to favor the school districts.  In fact, IDEA was designed by Congress to “level the playing field” so that parents had a stronger role in the education of their child with a disability.  Specifically, Congress stated: “The purposes of [IDEA] are 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” among other goals.  20 U.S.C. §1400(d)(1).

IDEA was meant to improve collaboration and cooperation between schools and parents to help children with disabilities receive better education.  Certainly, Congress did not intend for states and schools to use federal funds to wage bitter lawsuit wars against parents and their children with disabilities.

But that is what it has become.  Ask any of my colleagues at COPAA.

So What Can You Do About It? – TAKE ACTION!

If you are like me and fed up with this system of injustice and abuse of taxpayer money, you can take action.  What school districts and their attorneys don’t want you to know is that because the source of funds paying the lawyer fees is public tax money, they MUST disclose such payments to the public who are paying those taxes.

In other words, if you live in a school district that is waging a special education war against a child with a disability, you have the RIGHT to know how much the school is paying its lawyers.

How do you find this out?  You make a Freedom of Information Act or “FOIA” request (or your state’s version of FOIA; for example, in New Jersey it is called the Open Public Records Act or OPRA).

Each state has a website for FOIA requests (I’ve listed a few below as examples) and usually a form to fill out.  On the form ask to see “All fees and costs paid to lawyers by XYZ Schooll District for special education disputes or legal disputes under IDEA for the last 5 years” or something similar.  Prepare for a fight, but you have the lawful right to that information as long as you live in XYZ School District.

New Jersey OPRA Records Request Website and Form

Florida Public Records Act Website and Forms

Texas Open Records Requests Website and Forms

Pennsylvania Open Records Request Website and Forms

For those not listed here, Google “[Your state] FOIA request” and look for an official state website URL.

Go get ’em!

Aggravation in 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.

What’s a FERPA letter?

For those of you who are new to education law or are in a battle with your school district to make sure your disabled student is getting a “Free Appropriate Public Education”, you may have heard the term “FERPA” or been told to send a “FERPA letter“.  And you’re probably wondering “What the heck is a FERPA letter?” but are too proud / afraid / embarrassed to ask.  Well, now you’ll know!

FERPA is an acronym standing for the “Family Educational Rights and Privacy Act” [a U.S. federal law located at 20 U.S.C. §§1232g and 1232h and with regulations located at 34 C.F.R. §99.1 et seq.]

Now, that doesn’t tell you much, but it is a VERY powerful law.  The most important part of this law is that you, as a parent of a minor student (regardless of whether the child is disabled or not; the law applies to EVERY student), are entitled to see and make copies of EVERY document that is in your child’s educational records file.  This means, any document that is generated about your child as a student in your school district MUST be made available to you to review and copy.

  • If a teacher writes a note about your child, you get to see it.
  • If they test your child, you get to see the test, the results of the test, and the testing methodology.
  • If they evaluate your child, you get to see the evaluation, the credentials of the person who did the evaluation, the results, and the methodology.
  • If a disciplinary report is made about your child, you get to see the report, the investigation (if any), and any notes made (including those by witnesses, etc.)

In other words, every scrap of paper that has something on it about your child, you get to see it.  There are some limitations, but not many.

As a lawyer, I have sample FERPA letters that I use in nearly every case.  Because it is critical to know what is in your child’s file.  Here are some tips if you do this on your own (but I do recommend that you at least consult with an attorney who knows this law and its limitations and, more importantly, how the school’s try to circumvent the law or misinterpret the law):

  • Do NOT write on the original documents or your copy of the document.  Why? If you need this document later in a legal battle, you need to preserve it exactly as how they have it (otherwise, they can say you altered the document to your benefit)
  • Make sure you ask for EVERYTHING.  You may not know what “everything” is (another reason to consult a lawyer), but when in doubt, ask for it anyway.  The worst they can do is say no (and they may be flat out wrong, which gives you a reason to contest them later).
  • They can charge you for copies, but the charge must be reasonable.  And they can’t block you because it is too expensive or takes too much time to copy.  If you need more than one visit to review or copy everything, make as many visits as possible.

Download your very own FREE form FERPA letter from our website here.

(This is federal law, so it doesn’t matter where you are located to discuss this with me).

There is a lot more to know about FERPA letters and other documentation of your child’s school experience in our book SchoolKidsLawyer’s Step-By-Step Guide to Special Education Law.