SKL Blog

Making a Complaint About Your Child’s Special Education

Your child is not receiving the attention or services he or she needs in school. As a result, your child is doing poorly in school. You’re not even sure of the cause of the problem, but you know something is wrong. What do you do?

If you are the parent of a child with special needs, this may sound painfully familiar. But, there is a solution. Remember the old saying, “the squeaky wheel gets the oil?” Well, that is just as true in special education as it is in other aspects of life. For those who feel uncomfortable being a “squeaky wheel,” remember that you are acting for your child’s benefit.

The following is an outline of the ways you can complain about your child’s special education services.

Consultation to Discovery the Problem

A good first step is to consult with a special education advocate or attorney to discuss your options. Perhaps the biggest problem in this area is that most parents do not know their options or that they have options at all. Most parents share the sentiment, “The school will do what is right for my child.” Tragically, that is not always true.

You, as the parent acting on behalf of your child, have many options. The approach to improving your child’s services may vary depending on your child’s specific diagnosis, individual educational capacity, the school district’s resources or current individualized education program (IEP). An advocate or attorney is trained to know the best way to address the issue, so seek a consultation.

Addressing the Issue With the IEP Team Manager / Case Manager

The first approach is to bring your complaint to the person identified by the school as the point person for your child’s special education needs. In most school districts, there is a case manager or head of a “child study team” assigned to your child. This person should have the most knowledge about your child and his or her IEP; however, you may need to go to the director of special education for your school district if this approach has already failed. You need to get someone to listen. Again, you need to be the squeaky wheel that someone hears.

Due Process Complaint

If you reach an impasse with the school district or disagree over something relating to your child’s special education, you may need to file a due process complaint. This is not something to be taken lightly and I highly recommend that you consult with an attorney (not an advocate) for this approach. This is akin to suing the school district and if you don’t do it correctly, you will fail.

Essentially, a due process complaint is a complaint to your state’s department of education alleging that your school district is not complying with the law with respect to your child’s education. You will need to prove that before a hearing officer, sometimes called an administrative law judge. This is called a due process hearing and looks very much like a trial, involving presenting evidence, witnesses and sometimes an expert witness.

Each state has its own due process procedures and forms. You need to follow those procedures carefully or the case will be dismissed without any help for your child. If you win at due process, you are likely to get most or all of your attorney’s fees back. However, even if you don’t succeed at the due process stage, you have another chance (see the section on appeal below).

Other options at this stage are filing a formal state complaint or requesting mediation. Both can be done before or after filing a due process complaint.

Civil Rights Complaint

Another option is to file a civil rights complaint to the U.S. Department of Education’s Office of Civil Rights. Essentially, this is an allegation that your school district has violated your child’s civil rights, which are guaranteed to him or her as a child with a disability. Just like employers can’t discriminate against people of certain races, creeds, gender, etc., schools cannot discriminate against students with disabilities.

Filing a civil rights complaint does not necessarily preclude the filing of a due process complaint, but the two may be filed simultaneously as they involve different laws. However, like a due process complaint, a civil rights complaint is very technical and must follow its own set of procedures and forms. This is another area where a special education lawyer is critical, and pursuing it alone is not for the inexperienced or faint of heart.

Appeal / Lawsuit in Court

The losing party at the due process or civil rights stage has the right to appeal that decision to a court of law. This may be state or federal court. Although you can handle any part of this process pro se (by yourself), you risk not helping your child. I don’t meant this to be an advertisement for lawyers, but simply a caution that even though you are passionate about your child’s needs, you may get in over your head. There is a reason that lawyers went to law school, took a bar exam, take hours of continuing legal education credits each year and “practice” law; it is to ensure that they have experience and knowledge on how the court process works and are therefore in the best position to protect your child’s rights.

At the end of the day, that is the goal of any of these complaints: to enforce your child’s special education rights and to make sure your child is provided a “free appropriate public education.” Since children typically can’t do this for themselves, the parents (and their counsel) must be the squeaky wheels to get the oil that will help their child succeed.


Originally published on the Special Education Guide Blog.

Evaluating a Child for Disability: The Wrong Way and the Right Way

Article on the wrong way and right way to evaluate a child for a disability is available on Special-Ism.com website at this URL:

http://special-ism.com/evaluating-a-child-for-disability-the-wrong-way-and-the-right-way/

 


Tales from the Front – Actual (Illegal) Statements Made by School Personnel

I did a seminar recently. My seminar was on what to expect at an IEP/504 meeting. Here are some of the comments I heard from parents spoken to them by school districts:

“We are at our quota of eligible disabled students already. We can’t have more.”

“Evaluations must be done in the summer time.”

“Your child (with muscular dystrophy) is not allowed to use a wheelchair in school.”

“[A disciplinary action against a child with a disability and IEP] is completely an internal school matter. You don’t need to worry about it.”

[From a case manager] “I’m not sure what to do. What do you want me to do?”

“You want a person assigned to your child (in a manual wheelchair) to ensure they get out of the school during an emergency? We don’t do that.”

“[A child with MD but not in a wheelchair] is not entitled to use the elevator. She must use the stairs.” (Child falls a lot).

“Your child is depressed.” (No, exhausted from fatigue by the middle of the school day.) “She needs to be on anti-depression medication so that her grades improve.”

[Child has received 50s and 60s on math tests, yet child got a “B” on her report card].
———————-

I heard these statements with great dismay. They are not only false, hurtful, and deceitful, they are illegal. The law protects against all of these things, but too often parents don’t know that the schools are wrong.

If you think the school is telling you incorrect things concerning services or accommodations for your disabled child, please contact a special education lawyer or advocate and ask questions.


Stop the Bullying Madness – That Means YOU, Parents!

On January 6, 2011, New Jersey Governor Chris Christie signed into law one of the toughest anti-bullying civil rights laws in the United States.  As with most laws, the creation of the law was the easy part.  The difficult part is the enforcement.  Most states have anti-bullying laws (some, like New Jersey apply to cyberbullying) but the training and implementation of those laws has been sporadic at best; ineffective at worst.

There continue to be events in which kids are committing suicide or having emotional problems because they are being bullied.  The old schoolyard bully who openly picks on a fellow student has gone by the wayside, primarily because such bullies have gotten smarter.  Now they have resorted to anonymous (or what they believe is anonymous) cyberbullying – texting or posting on social media – to intimidate other kids.

– There is the 12 year old Rebecca Sedwick who jumped off a building to her death because of incessant text bullying by her ex-boyfriend’s new girlfriend and a group of girls that Rebecca thought were her friends.  Thankfully the Sheriff arrested two of the girls responsible after they boldly and stupidly remarked about their involvement in the bullying and death of Rebecca. http://www.hlntv.com/article/2013/10/16/rebecca-sedwick-cyber-bullying-arrests

– Joel Morales, a 12 year old boy from Harlem committed suicide after relentless bullying. http://nymag.com/daily/intelligencer/2012/05/harlem-boy-commits-suicide-after-harsh-bullying.html

– In Buffalo, NY, 14-year-old Jamey Rodemeyer committed suicide after being consistently bullied at school.  http://cartersville.patch.com/groups/schools/p/bullying-in-america-reaches-home

There are so many of these incidents that this blog post could go on for pages.  It is disgraceful.

But there are plenty of laws on the books supposedly to prevent this.  Here is a great page (PDF file) that summarizes the various state laws on bullying: http://cyberbullying.org/Bullying-and-Cyberbullying-Laws.pdf

In my opinion, however, it is not laws that will stop bullying.  It is parenting.  Parents of both bullies and victims need to pay attention to their children and their activities and spot the signs of bullying.  In many of these cases, the parents saw some of the signs, but chose to ignore them with the age-old response of “kids will be kids.”  No!  Bullying is not kids being kids.  Bullying is a crime and it is hurtful.

So, parents and school personnel need to learn the signs of bullying, spot them, and do something about it.  Proactive.  I keep seeing commercials that tell kids to speak up about bullying.  Why are we putting the onus on kids who are in the most precarious of positions in the bullying scheme?  Why are we taking the pressure off of parents from being parents?  Parents of victims need to protect their children and, if need be, report it to the authorities and consider removing their child from the school environment if the school will not take action.

But my strongest admonition is for the parents of bullies.  YOU need to take responsibility and parent your kids.  This means discipline; this means controlling your child’s actions; this means teaching your children that bad actions, such as bullying, have bad consequences.  It is not an excuse to say you can’t control your children.  You are the adult; you are the parent.  You accepted that role the second you knew that you were going to have a child.  So you must examine your own actions, because bullies often beget bullies.  And, trust me, if I learn that one of my clients was bullied, I’m not just coming after the child who bullied my client – I’m coming after you, the parents too.

Let’s wake up and stop this bullying madness.  Please.  TODAY!

If anyone has a bullying problem, please contact my office for assistance.  Phone: 856-335-5291; Web: http://schoolkidslawyer.com; Email: info@schoolkidslawyer.com.

Robert C. Thurston, Esq.


When Is It Time to Contact a Special Education Lawyer?

When is it time to hire a special education lawyer? I’ll explain how to keep this from being a $64,000 question.

I’ll answer this question in a moment, but the first thing to understand is the special education process.

Understanding the Special Education Process

Briefly, the process usually follows these steps: (1) either the parent or a teacher notices some delays or challenges in your child’s learning process; (2) your child is identified or diagnosed with a disability that interferes with his or her education; and then (3) a 504 plan or IEP is developed for your child. The process is designed to be “non-adversarial,” meaning the intention is for you and the school district to collaboratively develop an appropriate plan and services to help your child without the need for lawyers or court systems.

Unfortunately, the process has become adversarial because of pushback from school districts. When schools are asked to do more than just stick your child in a special education classroom that may or may not address the specific challenges your child faces, schools often respond “NO.” In other words, when the “cookie cutter” approach to disabilities does not work for your child and you want more, school districts have been trained to fight back. School districts know that they can usually win this fight because most parents don’t know special education laws or the rights of their children.

This is the time to, at a minimum, have a consultation with a special education lawyer. You should hire a lawyer as soon as the school district decides it is going to fight you on the services you want for your child. One of the biggest reasons is that the school district is going to bring in their lawyer at this point.

Why Not Hire an Advocate Instead?

But, you may ask, why not hire an advocate or just handle it myself instead of hiring a lawyer?

As for handling it yourself, I recall the old saying “the lawyer who represents himself has a fool for a client.” Because the case involves your child, it is nearly impossible to remain objective and keep your emotions out of it. You need someone besides yourself to represent you and your child.

The Limitations of Advocates

While advocates provide wonderful services, they are limited in what they can do. The Individuals with Disabilities Education Act (IDEA) provides that parents are entitled to have “other individuals who have knowledge or special expertise regarding the child, including related services personnel as appropriate” with them at IEP meetings.(1) In other words, such “other individuals” can be advocates who are experts on your child’s diagnosis, testing methodologies or the requirements of 504 plans and IEPs. The advocate can help you prepare for an IEP meeting, accompany you to the meeting and take notes and assist you with interpreting test results.

However, that is where advocacy services must end. Anything more might be considered the Unauthorized Practice of Law (UPL). If an advocate doesn’t have a license to practice law in your state, providing legal advice to you or assisting you with the preparation of a due process complaint or any other “legal action” (like appearing on your behalf at a hearing) is actually illegal.(2)

Thus, even if your advocate has done great work, it can be discarded by the school district and the advocate can be in real legal trouble for UPL. And, you have spent a lot of your hard-earned dollars for nothing. Lawyers do not have this limitation.

Price vs. Value

People also hire advocates for the simple reason that they are less expensive than lawyers. The old saying, “you get what you pay for” applies here. Perhaps Warren Buffet said it the best: “Price is what you pay. Value is what you get.” While many advocates receive excellent training or have substantial experience from being in the field of education, lawyers often have knowledge that you or even the best advocate won’t have. Beyond special education laws, lawyers understand legal procedure and evidence rules, have knowledge of the hearing officers and judges, have courtroom experience, know how to conduct direct and cross-examination of witnesses, know how to obtain critical documents through discovery and the Family Educational Rights and Privacy Act (FERPA), are proficient at locating witnesses and, perhaps most importantly, know how to make “the record” for appeal (if the case goes beyond a due process hearing). In addition, unlike lawyers, advocates are not required to take mandatory continuing legal education so they are informed on the latest laws and cases in special education.

A great example of this value is demonstrated in special education lawyers’ ability to locate and use an expert witness at a due process hearing. Special education lawyers have a network of experts they can draw from, and most would agree that an expert witness is critical at the due process stage for two reasons: (1) many hearing officers will simply accept the school’s interpretation of your child’s documents if you don’t have an expert to provide your own version; and (2) in states where you don’t get to add documents to the record on appeal, if there is no expert witness at the due process hearing, there is no expert for appeal.

You also shouldn’t skimp on legal services when protecting the civil rights of your child with a disability. My colleague Amy Anderson wrote about this topic in a recent article in Forbes magazine “Nothing Is More Expensive Than A Cheap Lawyer.”

Remember, attorney’s fees in special education cases are recoverable while advocate’s fees are not.(3) In other words, if you succeed, you get your money back. A consultation with a good special education lawyer will inform you about the strength of your case and whether you should invest in a lawyer.

Thus, I strongly urge you to bring a lawyer into your child’s special education case the minute you sense the school is going to fight you on what you (or your child’s physicians) believe are the appropriate services necessary to educate your child.

Sources

1 See 20 U.S.C. §1414(d)(1)(B) and 34 CFR §300.321(a)(6).

2 You can find more details on this problem in an article I wrote on this topic, “Are Special Education Advocates Performing UPL (Unauthorized Practice of Law)?

3 20 U.S.C. §1415(i)(3) [Individuals with Disabilities Education Act or IDEA], 29 U.S.C. §794a(b) [§504 of the Rehabilitation Act], and 42 U.S.C. §12133 [Americans with Disabilities Act].

Originally published in the Special Education Guide Blog.

The Dangerous Use of the Word “Cure”

I’m shocked. It takes a lot to shock me these days, but I am admittedly shocked. My alarm has been set off by numerous recent studies into the “cause” of Autism. I’m not alarmed purely because of the research, but rather what it may implicate and the resulting frightening thoughts of how we, as a society, would implement a “cure”.

There were studies attempting to link childhood vaccinations to Autism, but those studies were found to be faulty and in one case “an elaborate fraud”, but nevertheless absent of a link between vaccines and Autism.  See Autism Speaks Policy Statement on Vaccinations and Autism; and CNN report about the British Medical Journal’s retraction of Dr. Wakefield’sstudies as fraudulent.

Another recent study published in the August 12, 2013edition of the Journal of the American Medical Association Pediatrics links induced or augmented labor to Autism.  Still another report by the New York Times attempting to say that Autism and cancer were linked via a “cancer gene” was exposed as extremely unreliable.

This brings me to my concern; actually, two concerns.

The first – that because Autism is a hot topic and the rapid increase in the number of cases of Autism in the population is startling to some (disregarding the fact that proper techniques to diagnosis Autism are a recent event proving that there is not an increase in the development of Autism, but rather an increase in number of discovered incidence) the media jumps on any report that seems to find the “cause” of Autism – I can do nothing about.  What sells “news” and media is beyond my control and I can do nothing other than be exasperated.

The second concern, about which I believe I CAN do something, is what I believe is the next step that follows the discovery of the “cause” of Autism – the “cure” for Autism.  This should be a source of alarm and concern for everyone and, frankly, is a disturbing and dangerous use of the otherwise constructive term “cure”.This dangerous use is attempting to redefine “cure” to mean “prevention” rather than its true definition.

Most dictionaries define “cure” as follows:

cure: n. 1. a means of healing or restoring to health; remedy. 2. a method or course of remedial treatment, as for disease. 3. successful remedial treatment; restoration to health.

Source: Dictionary.com, http://dictionary.reference.com/browse/cure?s=t

Thus, “cure” means to “restore to health” or “remedy”.  In other words, if you have a virus or disease, the cure may be a drug or treatment that restores you to health. In a sense, chicken soup may be viewed as the cure for the common cold.  (I know several Jewish mothers who swear by that.)  This definition refers to healing people who are currently alive.

How can this be bad?

On August 14, 2013, the Autism Support Network’s Facebook page posted this question: “Would you terminate your pregnancy if you knew your child would have autism?”  Thankfully, the responses were unanimously “no” and several people were puzzled why an “Autism support network” would even pose that question.  The members of this network are parents of children with Autism who have already been born.

The insidious and heinous implication of this question is that we, as a society, will view abortion or intra-uterus genetic alterations as a “cure” for Autism.  People are seeking to prevent Autism.  While that, too, sounds like a noble pursuit, it is extremely dangerous and Orwellian in its possibilities.  What is next? Sterilization of those who have a gene that causes Autism or those who have Autism?  Government-imposed removal of reproductive parts of people who have Autism in their family history?

I know these examples are extreme and hopefully absurd, but I do wonder how this urge to find the cause of Autism has led to tenuous research projects and where such research might lead.

I have a better idea.  Rather than spend millions (perhaps billions) of dollars on fruitless research into the cause of Autism (which is most likely genetic and not “curable” absent one of the horrific methods I describe above), redirect those funds to research into therapies or providing services for families that have living, breathing, wonderful children with Autism.  The daily lives of such families are rife with challenges and they deserve all of the help and support that we, as a society, can muster.

If you want to redefine the word “cure” when it comes to Autism, redefine it to mean “support”.


Are Special Education Advocates Performing UPL (Unauthorized Practice of Law)?

The answer to the question posed in the title is, typically, lawyerly – it depends.

What is the “practice of law”? “Unauthorized practice of law (UPL)”?

First, let’s discuss what is the “practice of law” and “UPL”.  Virtually every licensed occupation is regulated by the State.  For example, in Pennsylvania, the Bureau of Professional and Occupational Affairs regulates almost every licensed occupation, such as accountants, nurses, barbers, funeral directors, dentists, etc.  However, lawyers are regulated exclusively by the highest court of the state – in Pennsylvania, it is the PA Supreme Court.  This regulation includes the power to define what constitutes the practice of law.  See PA. Constitution Article V, Section 10(c).

That is not as easy as it sounds. Courts don’t face this issue very frequently. Generally, there are three categories of activities / services reserved to those who are admitted to the bar: (1) advising clients as to what the law is to enable them to act and pursue their affairs; (2) preparation of documents that require familiarity with legal principles an ordinary person wouldn’t know (such as preparing a court document); and (3) appearing before a public tribunal, such as a court or administrative hearing.  Put another way, a person who doesn’t have a license to practice law should not tell someone what the law is and advise them to act accordingly, prepare a legal document, or show up in court on behalf of anyone but him/herself.  Doing so would be the unauthorized practice of law, or “UPL”.

A person can get in serious trouble for UPL.  In fact, in most states it is a crime.  In Pennsylvania, for example, it is a misdemeanor of the 3rd degree for a first time offender; misdemeanor of the 1st degree for a repeat offender.  See 42 Pa.C.S. Section 2524(a).  It may also be a violation of a state’s Unfair Trade Practices and Consumer Protection Law, which would subject them to civil (money) penalties.

Special Ed Advocates and UPL

So how does this apply to Special Education Advocates?  Again, it depends.  A description of the typical special education law case timeline is helpful.

Briefly, the first event is that a child is diagnosed with a disability that triggers the right to have special education in school.  The next event is that a team of school personnel, physicians, and the parents decide what should be in the special education program for that child (this is called an Individualized Education Plan or “IEP”).  Sometimes there is disagreement over what should be in the IEP or how the school is implementing it.  What comes next may be a due process complaint and hearing.  This is a semi-formal process where the school and the parents put on a case before a hearing officer (not always even a lawyer).  The hearing officer decides whether the services are appropriate or not.  If either the school or the parent disagrees, they can then appeal that hearing officer decision to a court.

The laws and regulations make it clear that parents are entitled to have “other individuals who have knowledge or special expertise regarding the child, including related services personnel as appropriate” with them at IEP meetings.  See 20 U.S.C. §1414(d)(1)(B) and 34 CFR §300.321(a)(6).

As a result of this language in the laws, a cottage industry of advocates, mostly made up of parents of disabled children themselves who are veterans of the battles with schools over special education, has developed and flourished.

Do not misunderstand me – I think advocates are wonderful and perform great services to parents, especially since most parents of special needs kids are heavily burdened with medical and other expenses making lawyers unaffordable at almost every level.  Well-trained advocates offer objective, yet passionate assistance to parents so that they can make informed decisions without the emotions getting in the way.

However, there are limits to this participation.  The portion of the law quoted above comes under the definition of an “IEP team”.  Matching that with the description above of what is the practice of law, an advocate should stick to helping a parent to prepare for and make it through the IEP meeting in an informed manner.  The advocate should be careful not to suggest a path for a parent based on an interpretation of the law – this is acting like a legal advisor and is likely UPL.  However, an advocate can certainly tell a parent, “the law states that an IEP should include . . .” or that the law requires certain procedures to be followed.

So what CAN’T an advocate do?  This depends a great deal on state law.  While some states permit advocates to act as lawyers in due process hearings, most states still do not.  To be safe, an advocate should not prepare a due process complaint, represent a parent at a due process hearing, or draft an appeal of the hearing officer decision in a court pleading.  These are all the practice of law and if an advocate, not licensed to practice law in that state, provides one of those services, it is UPL.  Of course, there are licensed attorneys who provide advocacy services, so they are entitled to provide any and all of these services.

Why is UPL a bad thing?

The reason why the above-described tasks are UPL may not be so obvious.  Many people might think, “I represented myself in my own divorce case, so why can’t someone help me with my special ed case?”  And therein is the answer – you can represent YOURSELF in any legal proceeding (that is called acting “pro se” or for yourself), but someone else cannot represent you.  Why?  Lawyers are trained to understand, not just the law, but legal procedure.  For example, it is important in a due process complaint to make sure you plead every option available to you; failure to do so might give up a right or two or seven.  In some states, you may have a civil rights case under Section 504 or the ADA, but many advocates don’t know this or even if they do, they don’t know you MUST include those allegations in your due process complaint.

Two other critical examples are the Rules of Evidence and Appellate Procedure.  Most advocates don’t know the rules of how documents or testimony get “into evidence” so that a judge can consider them.  Further, if you have to appeal an administrative decision to court, it is like an appeal and sometimes only the record that is made at the due process hearing is considered by the court and if you don’t get the information in at the due process level, you might have to fight a battle at the appeal level to get it in – and you might lose.  Many well-trained advocates don’t know these rules because they aren’t licensed lawyers.

To conclude, Advocates are a necessary and crucial part of the special education process.  There is no better (and more affordable) help with making sense of this maze of special education law, especially when you are simply trying to get services for your child at school, than a well-trained advocate.  However, remember that they are limited in what they can do and when it comes to advising you on a legal path or preparing your complaints or representing you at a hearing, only licensed attorneys can help you in those situations.


Recommended reading: “Guidelines for Choosing an Advocate” from COPAA.

 

I love teachers! . . . (really, I do!)

There is a bad reputation out there for special education lawyers, advocates and parents of special education kids.  The reputation is that we hate all school teachers and those who work in the schools and we are simply out for vengeance.

I’m going to focus this post on the misrepresentation that I must hate teachers because I’m a special education lawyer.  Absolutely – 180 degrees – the opposite.  I LOVE teachers.  Let me explain why and how we all fit as perfectly aligned spokes in the wheel of special education.

Teachers have thankless jobs.  Often they aren’t paid very well, but are teachers because they love kids and they love education.  Big plus in my opinion.  After all, that is what we all want; people in the field of education who love to teach kids.

Most teachers are also sensitive to the needs of disabled / special education kids.  They understand the challenges that these kids face and try their best to accommodate them so that they, too, receive a good education along with the “neuro-typical” or otherwise non-disabled kids.

Some teachers even go out of their way (bless their hearts) to go above and beyond their job requirements to help these kids.  Some even violate rules or the directions of the administrators in order to assist special ed kids.

So, often, my beef is not with the teachers.  In fact, almost never is my argument with the teachers.  My argument is with the school district who handcuffs the teacher or who misinforms the teacher as to what he/she should do for the special education child.  I have seen the school districts actually incorrectly state the law to teachers.  Whether that is intentional or not, I don’t know.

Granted, there are some teachers that are not altruistic and just want their paycheck.  But like any occupation, there are a few bad apples in every bunch.  Of course the really bad ones make the news, which is unfortunate because the overwhelming majority of teachers are fantastic.  And I love them for that.  It is no different than lawyers and having to deal with the ones that make the news leaving a bad impression on people that all lawyers have heinous or monetary objectives.  Similarly, there are doctors who don’t really care about their patients and may even commit fraud in order to make money.  But these bad apples do NOT represent the bunch.

Where I, as a special education lawyer, fit in to this mix is just to make sure the disabled child (and his/her parents) have a voice and to assure that school districts are meeting the requirements to provide the child with a Free Appropriate Public Education (“FAPE”).  My job, as I see it, is to level the playing field.  Sometimes that simply means legally justifying or backing up what the well-intentioned teacher is already trying to do, but for whatever reason the school administration is not permitting.  Frequently, I work with and speak with teachers (the old line, ‘Some of my best friends are teachers’ ha ha – but it’s true) as a team.  We work together to find solutions for the children.

If you walk away after reading this blog post with ANYTHING, please keep the idea that special education lawyers, advocates and parents do not hate teachers.  We love them.  We love them just as much as the disabled children we are trying to help.

So let’s work together in this area of law.  Do not generate stereotypes that only serve to interfere with cooperation and progress in the field of special education law.  Our children deserve better.


Free (legal services) or not free . . . that is the question

I’ve had a lot of people ask me lately if I provide free legal services or if I can take their case for free.  The answers are: (1) Yes, I do pro bono (free legal) work through South Jersey Legal Services (www.lsnj.org/sjls);  and (2) No, if you can afford a mechanic, HVAC repairman or doctor, you can afford a lawyer and I won’t take your case for free.

Some interesting (you might think boring) statistics about lawyers that I want to share (from an ABA survey in April 2012):

1.  Of the 1.2 million lawyers in the U.S., 75% or 934,000 are in private practice (rest in gov’t, corporations, legal aid, etc.)

2.  Of those, 460,000 or roughly 50% are solo attorneys

3.  Studies vary, but my estimate is that the median income of solo attorneys is about $60,000. (NOTE: I’ve read virtually every study on median incomes of attorneys and the articles criticizing those studies too.)

4.  Most analyses suggest that a family of 3 or 4 cannot survive on $60,000 in today’s economy.  See e.g. Can a family of four survive on a middle class income in America today?

The purpose of this post is to dispel the myth that all lawyers are really rich and not working hard for their money.  Most lawyers are solo lawyers just trying to eke out a living and provide for their families.  But solos are people too, who need to pay their mortgage, bills, and feed their families.

I realize that many parents of special education children are already financially tapped to the maximum, but the good news is that under most special education laws if you win your case you get your legal fees repaid!

So, despite what jokes Jimmy Fallon or Jimmy Kimmel are telling about lawyers and in spite of the moron lawyers who are filing stupid lawsuits (like the one against the Sandy Hook school for $100M), most lawyers are NOT rolling in the moolah and can’t afford to take your case for free.  After all, do you ask your doctor to cure you for free?  Do you ask your car mechanic to fix you car for free?  When your heater is broken down in the dead of winter, do you expect the HVAC specialist to come out to your house and fix it for free?


A Huge Problem in Special Education: Teacher Unions

There have been many recent, well-publicized incidents of teachers and school staff doing horrible things to kids – and not just any kids, special needs kids.  Here are just a few examples:

This is just a representative sample of hundreds, perhaps thousands, of incidents of abuse of special needs kids.

Unfortunately, the teachers are rarely fired in these cases and in some of them not even removed from the classroom in which the abuses take place.  You probably wonder WHY?

The answer is sadly simple: teachers’ unions and their contracts.  Most unions have negotiated contracts with the school districts requiring a thorough investigation (which the unions usually control) before any disciplinary action can be taken against an accused teacher.  The basic principle behind this is a good one: you don’t want to fire good teachers who are being falsely accused.  The unfortunate reality behind this is that bad teachers are protected and the investigations are suspect.

In many cases, the schools (working with the unions) try to cover up these events because of the negative publicity and the potential loss of funding.  Saying that developing evidence to prove these events (beyond a reasonable doubt, which is the criminal standard) is difficult is a huge understatement.  School personnel and school district administrations are more adept at cover ups than those involved with Watergate.  After all, whose word are you going to believe?  The teacher or principal who denies the incident or the special needs kid who probably can’t even express what really happened because of the trauma or their social skills (many children with Autism are unable to explain a traumatic event to a parent or anyone else).

In fact, this is why there is a huge battle raging on across the country between parents of special needs kids and schools as to whether to permit audio and/or video recording equipment in special education classrooms.

  • Maine family fighting to allow audio recordings of school day for child with autism

     Even when there is overwhelming evidence of the abuses (sometimes surreptitiously obtained because there was no other option), the schools will shortshrift the investigation (or something more heinous, like destroy the evidence) and transfer the offending teacher or staff member to another school in the district.  All to prevent a huge legal battle with the union.

I won’t get too political here and discuss whether unions are useful in ANY industry, but they are a huge problem in properly dealing with abuses by teachers and staff in the education industry.  Tragically, many parents don’t have the resources to push the issue (attorneys are expensive and the legal system is not set up well for non-lawyers to understand how the battle works – I’m working on a solution to this) and therefore the unions “win”.

Until we as a society realize that we need to put our children – especially our children with special needs – FIRST, these abuses will continue and the unions will continue to protect the bad teachers and the ones who abuse the system or their students.  Unions are not there to protect the good teachers and the highly qualified ones, because they don’t need protecting; they do their jobs expertly and with care and compassion.  The teachers who don’t do their jobs well or who don’t treat their students with care and compassion and who violate the children’s rights are the ones who should not be protected and should not only lose their jobs, but be placed into a system that alerts future potential school employers as to prior violations (if you want to call this “blackballing”, so be it), and potentially face criminal charges.