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.

 

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.

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.

 

 

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 can access 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!

New special ed case involving charter schools and attorney’s fees

The U.S. Court of Appeals for the Third Circuit handed down an excellent decision on October 11, 2017 for parents of children with disabilities.  In the case of H.E., et al.  v. Walter D Palmer Leadership Learning Partners Charter School, et al., the Court held and reaffirmed its prior ruling that “success on a claim for procedural relief can constitute a victory ‘on the merits’ that confers ‘prevailing party’ status” allowing the parents an award of attorney’s fees.

Parents had children with disabilities enrolled at Walter D Palmer Leadership Learning Partners Charter School.  The parents had alleged that the charter school was not providing a Free Appropriate Public Education (FAPE) to their children.  The parents entered into a settlement agreement with the charter school whereby the school was to provide the children with compensatory education and contribute towards the parents’ attorney’s fees, but before the school could deliver on the agreement, it closed in 2014.

The parents filed a Due Process complaint against both the charter school and the Pennsylvania Department of Education (PADOE), alleging that PADOE as the state agency was responsible to make good on the charter school’s agreement.  However, the administrative hearing officer dismissed the parents’ case and held that the parents could not go after PADOE and had to get their relief through the charter school’s settlement claims process.

Parents filed an appeal in the federal district court seeking reversal of the administrative hearing officer’s decision plus attorney’s fees and costs for having the fight the battle.  The federal court vacated the hearing officer’s decision and sent the case back to the hearing officer on the issue of compensatory education, but denied the parents’ claim for attorney’s fees because it was a victory on purely procedural matters, not a substantive claim, and therefor they were not “prevailing parties”.

The federal appeals court reversed the federal district court on that basis and said that parents were indeed prevailing parties and entitled to reimbursement of their attorney’s fees and costs.

Thankfully courts are beginning to recognize that these battles are difficult and expensive for parents to bear and their statutory right to be reimbursed for the costs and fees paid to fight these cases when they win should be honored.  It is a re-balancing of the playing field.

The full decision can be downloaded from the Third Circuit Court of Appeal’s website here.  (It is a PDF file)

Special Education Law and Child Custody

According to the American Psychological Association, 40-50% of marriages in the United States end in divorce.  Of all children born to married parents this year, 50% will experience the divorce of their parents before they reach their 18th birthday. (Patrick F. Fagan and Robert Rector, “The Effects of Divorce on America,” Heritage Foundation Backgrounder, May 2000.)

So, the question arises: What happens to kids with special education needs who come from broken homes?

It is important to recognize that special education law is, for the most part, federal law and the same in all 50 states, but family law is state law and may differ from state to state.  Thus, the following are just a few issues facing divorced parents and the education of their children with disabilities.  You should check with your own state’s family law or hire a local attorney to get answers to your specific situation.

Which parent makes the special education decisions?

Education decisions fall under the category of “Legal Custody” of the children.  This is different from “Physical Custody and Visitation”.  Usually both divorced parents share legal custody of the children born during the marriage.  This means that unless a court Order or divorce agreement says otherwise, both parents of a child with a disability share the education decision-making ability and rights.

However, the divorced parents might not always agree on the education choices for the child.  For example, one parent might not feel the child has a disability or is eligible for special education; or one parent might not agree with the other parent on what the school is offering for services.  There are a number of provisions in the special education law which require parental consent.  Who has the ability or right to give such consent?

If there is (or might be) a dispute between the divorced parents, the parties should work out an agreement or have the Court decide to alter the general rule.

What happens when there is an agreement or Court Order?

A divorce agreement (sometimes called a Joint Parenting Agreement) or Court Order controls how education decisions are made for a child.  Again, if the agreement or Order simply says “joint legal custody” (which is typical) or is otherwise silent, both parents have equal rights to making education decisions and should cooperate for the best interests of the child.

As stated above, sometimes one divorced parent allows his/her emotions towards the other ex-spouse interfere with the decisions for the child.  In these situations, the agreement or Order should be very specific about who makes the special education decisions for the child or how a dispute can be resolved.  Even if there is “joint legal custody” on other issues (religion, morals, etc.), education decisions may be separated out and either one parent has the exclusive right to make these decisions or the power to override the other parent.

The Court always has the power to enforce such agreement or Order or to modify it so as to protect the child.

How does physical custody or visitation impact this situation?

Although “joint physical custody” is a possibility (usually meaning the child spends equal amounts of time in each divorced parent’s home), it is not as common as granting one parent physical custody and the other parent visitation rights.  This means one of the parents’ homes will be the ‘primary residence’ of the child and the other parent gets to see the child on a regular schedule.

This has a number of effects on the education of a child, particularly one with special needs.  First, ‘primary residence’ of the child will determine the public school responsible for the child’s special education (who manages the IEP or 504 plan).  If that school district is not particularly helpful to children with disabilities or has a track record of violating special education laws, it will impact both the Court’s and the parents’ positions on physical custody.  Careful thought should be given to where the parent having physical custody resides and the ‘home school district’ (not to be confused with homeschooling).  This is also a challenge if there is joint physical custody and the divorced parents live in two different school districts; it may be unclear to which school district the child is assigned.

Another issue that can arise is which parent has the right to attend IEP meetings.  IDEA says that parental participation is critical, but the law does not say if that means one or both parents.  What if the parent who doesn’t have legal custody wants to attend an IEP meeting just to make sure that everything is being done right for his/her child?  Can the school bar him/her from the meeting?  Also, is the non-custodial parent allowed to pick the child up from school?  What if one of the parents has a restraining order against the other parent, but the order doesn’t discuss whether the restrained parent can visit with the child?  Or attend school events?

The school may be caught in the middle.

If the joint parenting agreement or court Order spells out these issues, then the school should be provided with a copy of that document so there is no question.  However, if the document doesn’t explicitly say what happens in these situations, the school might demand that the parents sign a document that clarifies the issues.

What if the child is not doing his/her homework?

Suppose either the custodial parent is not making the child complete homework assignments or it is the parent who has overnight visitation not enforcing homework because such parent doesn’t want to reduce their limited time with the child.  What happens when the other parent learns that the child’s performance in school is deteriorating because of the homework issue?  What can that parent do?

Again, the school’s special education services will likely be blamed when it may not be its fault at all.  The school should not be caught in the middle on this issue either, but also the school should not be allowed to rely on this as an excuse for inadequate services.  In this situation, it may be necessary to bring in a family law mediator or the judge to figure out a solution to this problem.

Who has the right to file a dispute with the school district?

It is not clear that even if one parent has sole legal custody on education decisions that such parent is the only one who can file a dispute against the school district.  For example, if the custodial parent is not enforcing the special education rights of the child against the school, can the non-custodial parent file the lawsuit against the school?

In most states, non-custodial parents do not relinquish all of their legal rights over the child.  For example, a custodial parent usually cannot leave the state without notifying the other parent and obtaining court approval to do so.

Thus, the non-custodial parent may retain the right to file a lawsuit on behalf of the child for violation of the special education laws by the school district.  What is not clear is the role of the custodial parent in this situation.

These are unresolved issues at this point and I won’t propose to resolve them here.  The purpose of this is to give you some food for thought on concerns you might face when parents of a child with a disability divorce.

As always, for specific legal advice consult with a lawyer in your locality.  You may wish to consult with both a family law lawyer and a special education lawyer if one lawyer does not handle both areas.

 

 

Beast of Burden

You may look at the title and think you’ve accidentally wandered onto a blog about pack animals.  No, don’t worry, you’re in the right spot.  I’m not talking about actual beasts of burden, but rather the beast of the burden of proof in special education disputes and how to overcome the beast that it is (or how school districts and hearing officers interpret it to be).

What does IDEA say?

IDEA does not say who bears the burden of proof (“BOP”) in special education disputes between parents and school districts.  However, BOP is a critical legal issue in litigation.  In simplest terms, the BOP means who has to prove their case and how strong the proof needs to be.  Most people are familiar that in criminal cases, the prosecution has to prove the guilt of the alleged defendant “beyond a reasonable doubt.”  In civil cases, the standard of proof is not that high and is typically “by a preponderance of evidence.”

What does the Supreme Court say?

In 2005, the U.S. Supreme Court decided the case of Schaffer v. Weast.  That case says that when a parent challenges an IEP, the parent has the burden to prove that the IEP is not appropriate for the child with a disability in the special ed context.  So, this means the parent must put on a strong case to convince the administrative hearing officer that the IEP is either poorly designed or improperly implemented for the child.  This is a difficult proof.

Exceptions to the rule

As a result of the Schaffer v. Weast case, most people in the special education legal arena assume that the parents always have the BOP, probably because it is usually the parents challenging an IEP.  But the BOP is not always on the parents and recently this has become a very important issue.

Again, we look to the Supreme Court in what they actually said in Schaffer v. Weast.  The Court said “[t]he burden of proof in an administrative hearing challenging an IEP is properly placed upon the party seeking relief.” 546 U.S. at 62.  That isn’t necessarily always the parents.  Indeed, the Court acknowledged that there are cases that “will be in evidentiary equipoise” where the burden should be on school districts.  546 U.S. at 58.  Justice Stevens in his concurring opinion agreed, writing “a court, taking into account ‘policy considerations, convenience, and fairness,’ . . . could conclude that the purpose of a statute is best effectuated by placing the burden of persuasion on the [school district].”  546 U.S. at 62.  In other words, there will be situations where the school should bear the burden of proof.

Examples where the exception should apply

One example is when parents demand an Independent Educational Evaluation (“IEE”) of the child with a disability at the public school’s expense after rejecting the school’s evaluation, the school has two options: (1) pay for the IEE or (2) file a Due Process case.  If the school files for Due Process to defeat an IEE, the school district bears the BOP.

Another example is placement of a child with a disability and here is the recent critical trend.  A school district always bears the BOP that it is in compliance with IDEA.  A Prior Written Notice (“PWN”) is required whenever a school proposes to change the placement of a child with a disability.  20 U.S.C. §1415(b)(3).  A PWN must include at least a description of the proposed change in placement by the school district, an explanation of why the school proposes to change the placement and the basis for such explanation, and a statement that the parents of a child with a disability have the right to challenge such action. 20 U.S.C. §1400(c)(1).

Now, if parents seek to change placement of the child with a disability (usually from the public school to a private school that the parents believe is more appropriate), the parents are always entitled to pay for such private placement out of their own pocket.  If the parents want the school district to pay for the private placement, they will have to file for Due Process and prove that the public school did not provide a Free Appropriate Public Education (“FAPE”) to the child and that the private school is more appropriate.  34 C.F.R. §300.148(c); see also Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 129 S.Ct. 2484, 2493, 2496, 174 L.Ed.2d 168 (2009).

Here comes the tricky part to which I want you to pay close attention.  Let’s say the parents have done that.  They’ve taken on the school district and met their BOP that the school did not provide FAPE to their child with a disability and that placement in the private school is appropriate, so the administrative hearing officer or judge has said the public school has to pay for the private school.  Let’s assume that a week after the parents have won that case, the school calls another IEP meeting and wants to change placement of the child back to the public school.  Do the parents now have to bear that beast of burden of proving once again that the school does not provide FAPE and the child should remain at the private school?  Is that fair?

Currently battling this issue

Well, I argue it is not fair.  And in my brief recently filed in the 9th Circuit case of J.M. v. Department of Education, State of Hawaii, Case No. 16-17327, I argue that the parents in that exact scenario should not again have the BOP immediately after they have won the private placement case.  Cross your fingers that this becomes good law for parents who are fighting this same tactic by school districts across the country.

[Supplement: We lost this issue in the 9th Circuit and then took it to the Supreme Court, who decided not to hear the case.  BUT, the same issue is again before the 9th Circuit in J.G. v. State of Hawaii, Department of Education, Case No. 18-16538 and is likely to be heard later this year 2019].

If you have questions about burden of proof in special education cases or need any assistance with your child with a disability, please contact us via our website schoolkidslawyer.com or via email at info@schoolkidslawyer.com.