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)

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).

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.”

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.

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.  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?

Well, I argue it is not.  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.

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.

School District Lawyer Tactics May Violate Ethics Rules

I am an attorney who represents children with disabilities and their families in special education matters. I am also a member of the Council of Parent Attorneys and Advocates (“COPAA”, www.copaa.org), a national organization of special education lawyers and advocates with the same client base.  Recently, my colleagues and I have witnessed a substantial uptick in very aggressive opposition by school districts and their counsel to our clients’ exercise of their legal rights, namely trying to ensure access to a public education for children with disabilities.

I believe that such opposition by school district lawyers may be in conflict with attorney ethics rules.

Applicable Ethics Rules

Most state organizations that regulate lawyers have adopted the Model Rules of Professional Conduct (ethics rules, hereinafter abbreviated as “RPC”) or a similar version.  The RPC guide the conduct of lawyers in their practice and representation of clients.  “The Rules of Professional Conduct are rules of reason.”  RPC, Preamble, ¶14.

Lawyers are public citizens.  “As a public citizen, a lawyer should seek improvement of the law, access to the legal system, the administration of justice and the quality of service rendered by the legal profession.”  RPC, Preamble, ¶6. “A lawyer should use the law’s procedures only for legitimate purposes and not to harass or intimidate others.”  RPC, Preamble, ¶5.  In addition:

“a lawyer should further the public’s understanding of and confidence in the rule of law and the justice system because legal institutions in a constitutional democracy depend on popular participation and support to maintain their authority. A lawyer should be mindful of deficiencies in the administration of justice and of the fact that the poor, and sometimes persons who are not poor, cannot afford adequate legal assistance. Therefore, all lawyers should devote professional time and resources and use civic influence to ensure equal access to our system of justice for all those who because of economic or social barriers cannot afford or secure adequate legal counsel. A lawyer should aid the legal profession in pursuing these objectives and should help the bar regulate itself in the public interest.”

RPC, Preamble, ¶6.

Finally, a lawyer’s conduct should not be guided only by the rules, but also by basic morals.  “Many of a lawyer’s professional responsibilities are prescribed in the Rules of Professional Conduct, as well as substantive and procedural law. However, a lawyer is also guided by personal conscience and the approbation of professional peers.”  RPC, Preamble, ¶7.

These sections of the RPC mandate that lawyers improve access to the legal system, particularly by those members of our society who may face obstacles in obtaining such access, e.g. those with disabilities.

Statistics of School-Aged Children With Disabilities

According to the 2010 U.S. Census, off the 53.9 million school-aged children  (ages 5 to 17),  about 2.8 million (or 5.2%) were  reported to have a disability.  A study performed by the National Institutes of Health (NIH) revealed that “out-of-pocket expenditures, particularly those for medical costs, for example, are higher among families with children with a special health care need.” That study further found that costs “average $30,500 a year per family with a disabled child.” Several other studies conducted by the Social Security Administration and the American Psychological Association indicate that families that have a child with a disability have a greater economic hardship than those families that don’t.

The obvious conclusion is that a family with a child with a disability has fewer financial resources to enforce its legal rights.

The Purpose of Special Education Law

The main law in special education is the Individuals with Disabilities Education Act, 20 USC §1400 et seq. (“IDEA”).  When passing this law, the U.S. Congress made the following findings:

  • “Disability is a natural part of the human experience and in no way diminishes the right of individuals to participate in or contribute to society.  Improving educational results for children with disabilities is an essential element of our national policy of ensuring equality of opportunity, full participation, independent living, and economic self-sufficiency for individuals with disabilities.”  20 USC §1400(c)(1)
  • “the education of children with disabilities can be made more effective by . . . strengthening the role and responsibility of parents and ensuring that families of such children have meaningful opportunities to participate in the education of their children at school and at home” 20 USC §1400(c)(5)(B)
  • “Parents and schools should be given expanded opportunities to resolve their disagreements in positive and constructive ways.”  20 USC §1400(c)(8)

Congress went on to state that the purpose of IDEA is:

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.

20 USC §1400(d)(1).

IDEA establishes ‘procedural safeguards’, which are designed to protect the legal rights of children with disabilities and their families.  “Any State educational agency, State agency, or local educational agency that receives assistance under [IDEA] shall establish and maintain procedures in accordance with this section to ensure that children with disabilities and their parents are guaranteed procedural safeguards with respect to the provision of a free appropriate public education by such agencies.”  20 USC §1415(a).

Those procedural safeguards include “an opportunity for any party to present a complaint with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child,” 20 USC §1415(b)(6), and a method for filing a lawsuit to enforce those rights, i.e. a “due process complaint.” 20 USC §1415(b)(7).  Indeed, recognizing that enforcing legal rights is often a cost-prohibitive venture for families, Congress ensured that such families may be reimbursed for attorney’s fees and costs incurred if they prevail in a lawsuit.  20 USC §1415(i)(3)(B)(i)(I).

Therefore, IDEA enables a child with a disability and his/her parents to enforce their legal rights and improves their access to the legal system.

How Aggressive Opposition Conflicts With Ethics Rules

I do believe that school districts are entitled to legal representation and to defend against frivolous claims.  Indeed, IDEA guarantees these rights.  See, e.g. 20 USC §§1415(i)(3)(B)(i)(II) and (III).

However, some school district counsel have employed what we in the litigation field refer to as “scorched Earth tactics.”  This means that they will do anything to win their case even at the expense of a party’s legitimate rights.  Examples of this conduct include: (1) filing a motion to dismiss a due process complaint (which is not provided for in IDEA or most administrative codes); (2) filing other motions that are expensive to contest; (3) making what was intended to be an informal process a very expensive, formal proceeding for the families; and (4) generally being very caustic to parents’ counsel.

In other words, the school district attorneys that employ these tactics are trying to make access to the legal system more difficult and more expensive for families of children with a disability.  I believe that this is in direct and express conflict with the ethics rules cited earlier.  It also seems counter to basic human morality (“personal conscience”).

I would respectfully request that counsel stop these tactics and work in a more collaborative manner in order to comply with the express purpose of Congress in special education cases.  After all, these cases involve children with disabilities who are some of the most vulnerable in our society.

 

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.

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?