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)

Don’t Read This – I’m a Liar

I’m going to lie to you.  About special education law.

So don’t read any further. You’ve been warned.

(If you continue reading, you’ll see why.)

I’m a special education lawyer who represents parents and children with special needs.  (All you heard was “lawyer”, so you know I’m lying. So stop reading now.)

If you become my client, here is what I will tell you:

  1. The school district is always wrong.
  2. I guarantee you’ll win.
  3. Of course I’ll handle your case pro bono (for free).
  4. Your kid deserves a one-to-one aide (no matter what).
  5. No IEP? I’ll get your kid one immediately.
  6. This case will be over in a week.
  7. This school district and its attorneys always back down when they know I’m in the case.
  8. Don’t use an advocate.  They’re all idiots.
  9. No one knows more about special ed law than me.  Trust me.

Ever heard any of these?

OK, here is where I stop lying and start telling you some truths:

  1. The school district is always wrong.  No, they’re not and sometimes you or your lawyer needs to listen to find the best way to resolve the case.
  2. I guarantee you’ll win.  No lawyer should ever say this, especially in sped law cases.  Not only does the case depend on the facts, it depends on the Hearing Officer or Administrative Law Judge that hears the case.
  3. Of course I’ll handle your case pro bono (for free).  Be very wary of an attorney who says this.  It might be an attorney who has never handled a special ed case before.  That spells Trouble with a capital T.
  4. Your kid deserves a one-to-one aide (no matter what).  Although parents might like to hear this, it is seldom true.
  5. No IEP? I’ll get your kid one immediately.  What if your child isn’t eligible for an IEP?  And usually having a lawyer involved at eligibility stage is a bad thing (because the school district will get their lawyer involved and they’ll tell two friends and so on and so on . . . nothing will ever get accomplished.)
  6. This case will be over in a week.  If a lawyer says this to you, RUN AWAY VERY FAST.  No special ed case is over in a week.  EVER.
  7. This school district and its attorneys always back down when they know I’m in the case.  Oh really? Why is that Captain Ego?  How many times have you actually interacted with this school district?
  8. Don’t use an advocate.  They’re all idiots.  Actually, most advocates are quite talented.  They have their limits, but real special ed lawyers like trained advocates because they help the parents at a much reduced cost and know when to get the lawyer involved.
  9. No one knows more about special ed law than me.  Trust me.  Umm, no, don’t trust a lawyer who says this.  It is a sales pitch, probably by someone who wants your child to be the guinea pig on the lawyer’s first special ed case.

So why did I write a post like this? and am I lying again?

Many parents of children with disabilities don’t even know that special education law exists, let alone what their rights are.  Too many lawyers are trying to ‘cash in’ on this burgeoning area of the law.  It is kind of like those digging for gold in the Wild Wild West, only there isn’t any gold.

I want you to be careful.  From a selfish perspective, I’ve seen too many lawyers who don’t know what they’re doing in this area make bad law for the parents who fight these battles later.  (One example is the Batchelor case out of the 3rd Circuit.  An employment law attorney named Frank Schwartz made really bad law probably because he knew nothing about special ed law.)

Here is the point: a special education case involves the education of YOUR child.  Do you really want to trust your child’s future to a lawyer who just wants to make some money?  If you want the best possible result for your child, you need to invest time in researching your special ed lawyer as much as you do researching the therapies and physicians who help your child.  If you don’t, you may end up spending a lot of money (paying YOUR lawyer) with very little results (or worse, negative results).   Work closely with your lawyer (and/or advocate) to make sure you have a ‘team’ approach to the case.  After all, it is about YOUR child.  In the end, you will be much happier and won’t think all lawyers are jerks.  And liars.

I wouldn’t lie about this. (Even though I’m a lawyer.)

Now, back to more lying:

I’m naturally thin and eat cheesecake for every meal.  😉

Don’t go to a heart surgeon for a broken arm . . .

If you fell and broke your arm, would you go to a heart surgeon?  Of course not.  You would go to an orthopedic doctor who could determine whether you need a cast, sling, surgery, etc.

The same principle applies in law.  If someone has sued you for cutting down the tree on their property, you wouldn’t hire a tax attorney to represent you.  Similarly, if you have a special education law issue, you shouldn’t hire an attorney who focuses on wills.

Perhaps people don’t realize that lawyers focus their practices on certain areas.  We do this so we can become ‘experts’ in those areas.  The days of the ‘general practice’ lawyer who handles any and every legal problem are long gone.

However, hiring the wrong lawyer is exactly what happened in the case Z.Z. v. Pittsburgh Public School Dist. (PA Commonwealth Ct., Nov. 30, 2016).  The Pittsburgh, PA firm that represented parents, Steele Schneider, consists of primarily employment law and business law attorneys.  While they do list special education law as one of their practice areas, I don’t believe they are members of COPAA (special education advocates and attorneys organization) or any other special education law group nor have I heard of them before this case (and I practice a fair amount of special education law in Pennsylvania).

I believe the Z.Z. case was correctly decided by the court in favor of the school district and against the parents.  I also believe the reason for that is the parents (and perhaps also their attorneys) were overzealous in this case and jumped the gun, specifically seeking legal remedies through Due Process before even completing the IEP process.  The Hearing Officer found (and confirmed by the Commonwealth Court) that the IEP process had not even been completed and parents had not fully cooperated with the process before filing for the lawsuit, thus the school district had not violated IDEA.  Good special education lawyers would have counseled the parents against filing a lawsuit until the IEP process was completed and, if the case was already filed, would have advised the clients not to pursue it further.

There is an ethics rule that states that an attorney should withdraw from representing a client if “the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement.” PA Rule of Professional Conduct 1.16(b)(4).  I’m also concerned that the lawyers involved in the Z.Z. case had the wrong motive for representing the parents.  (I’ll leave that up to your imagination as to what that motive might be.)

Unfortunately, a similar thing occurred in the case Batchelor v. Rose Tree Media School Dist., (3rd Cir. 2014).  In that federal court appeal, Frank Schwartz, Esq., a commercial / employment law litigator from the firm Lamm Rubenstone LLC, created horrible special education law for parents.  That case ruled that parents have to exhaust every legal remedy against a school before a hearing officer prior to going to court, even including anti-discrimination laws like Section 504 and the Americans with Disabilities Act (ADA) which say you can go directly to court.  How did this happen? Simply, Schwartz based his argument using an old version of the law that was no longer applicable (specifically, relating to exhaustion.)  This is much less likely to happen if the clients had selected an attorney that focused his/her practice on special education law (or Schwartz had referred the case out to a special education lawyer).

Thus, my conclusion is that lawyers who don’t truly practice in special education law on a regular basis should not take these cases because they end up creating bad precedent for parents and children with disabilities.  These cases also harm the public’s perception of special education lawyers and advocates.  This frustrates attorneys whose true motive is to assist these clients.  My advice to special education clients is do your research and make sure your attorney focuses his/her practice on special education law.

 

Press Release: NEW BOOK ON SPECIAL EDUCATION LAW PUBLISHED

Amazin Blue Press LLC is pleased to announce publication of its new title:

SchoolKidsLawyer’s Step-By-Step Guide to Special Education Law: Workbook for Parents, Advocates and Lawyers

by Robert C. Thurston, Esq.

cover04

This 266 page book is a user-friendly guide to assist families of children with disabilities, complete with forms, helpful tips, and links.

According to the 2010 U.S. Census, about 2.8 million school-aged children have a disability.  In 2014, the Centers for Disease Control (CDC) identified 1 in 68 children in the U.S. as being on the Autism Spectrum.  Yet, most of these children are not getting equal access to education and most of their families don’t even know they have legal rights available.

This book not only makes special education more accessible to students with disabilities, but also explains in non-legal terms how to enforce their legal rights within the public school systems.  The guide is applicable to all 50 U.S. states, D.C., Puerto Rico, and U.S. territories.

About the Author: Rob Thurston is a well-respected attorney that focuses his law practice on special education law.  He has published numerous articles and lectures widely on the subject.  He has two sons, the older of which has Autism and is a major inspiration for writing this book.

# # #

For more information about the book, go to http://schoolkidslawyer.com/book or contact Robert C Thurston, Esq., via email at rthurston@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.

 

Ethics Rules You Might Not Know . . .

I think many, too many, lawyers have forgotten what the ethics rules (“Rules of Professional Conduct”) really say. I encourage every lawyer (especially school district counsel) to go back and read their ethics rules (each state has their own, based on the ABA’s Model Rules of Professional Conduct) periodically. This will help them understand that the role of lawyer is not just to make money.

Here are some ethics rules you might not have known, excerpted from the Preamble to the Model Rules of Professional Conduct:

• A lawyer, as a member of the legal profession, is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice.

• A lawyer who commits fraud in the conduct of a business is subject to discipline for engaging in conduct involving dishonesty, fraud, deceit or misrepresentation.

• In all professional functions a lawyer should be competent, prompt and diligent. A lawyer should maintain communication with a client concerning the representation.

• A lawyer should use the law’s procedures only for legitimate purposes and not to harass or intimidate others. A lawyer should demonstrate respect for the legal system and for those who serve it, including judges, other lawyers and public officials.

• 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.

• 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.

• A lawyer is also guided by personal conscience and the approbation of professional peers. A lawyer should strive to attain the highest level of skill, to improve the law and the legal profession and to exemplify the legal profession’s ideals of public service.

• These principles include the lawyer’s obligation zealously to protect and pursue a client’s legitimate interests, within the bounds of the law, while maintaining a professional, courteous and civil attitude toward all persons involved in the legal system.

• The legal profession has a responsibility to assure that its regulations are conceived in the public interest and not in furtherance of parochial or self-interested concerns of the bar.

• Lawyers play a vital role in the preservation of society. The fulfillment of this role requires an understanding by lawyers of their relationship to our legal system. The Rules of Professional Conduct, when properly applied, serve to define that relationship.

Excerpted from ABA Model Rules of Professional Conduct

My favorite of these is that “A lawyer is also guided by personal conscience”; in other words, lawyers should not be guided simply by the pursuit of money, but rather should be guided by a set of morals. I think this is the one that lawyers most often forget. That being an attorney is not just a job; what makes it a “profession” is that we act as professionals and use good, sound, moral judgment in using our license to practice law in any capacity.

Please always keep this in mind.

Your Tax Dollars Are Being Used to Deny Education to Disabled Kids

Many of you probably don’t know there are laws that exist to protect the rights of disabled kids, but perhaps none more important than the special education laws.  I’m quite sure that even fewer of you know that your tax dollars are being used to deny those disabled kids their lawful education and thereby violating the laws.  So, your taxes are being used to violate or, at a minimum, obstruct the law.

Here is how this works:

1.  Special education laws guarantee that kids with disabilities are entitled to a free appropriate public education (FAPE) adapted to meet their individual needs.  Makes sense, right? Just because a child is in a wheelchair or has a neurological problem doesn’t mean they should be denied an education, correct? Yes, correct, because it is the law of our country and it is also our moral duty.

2.  Your taxes go to fund public education.  Thus, the public schools in your district are, partially, funded by your tax dollars.  They are also funded, partially, by federal and state government money.  Boards of education or school district administrations determine how to spend those dollars – new football uniforms? new books? supplies? building repairs? etc.

3.  School districts struggle with special education laws because they have tight budgets and sometimes it is expensive to comply with these laws.  Yet, the reality is that they simply need to redistribute that budget to comply.  Indeed, schools get extra money from the federal and state governments depending on the number of disabled kids in that school district.  So, maybe the football team can go another year with the same uniforms in order to assure that the disabled kids get an equal education.  Or maybe they have to contract with a different school supplies vendor who will offer a discount.

4.  But, instead of taking some of those cost-saving or redistribution of budget measures, many school districts elect to fight against enforcement of the special education laws.  Some school districts – either blatantly or unknowingly – violate those laws by denying services or the educational needs of those children.  The school administrations hire attorneys to represent them and battle parents who are simply trying to get an equal education for their disabled child.

Now, let me stop for a minute and focus on that fact.  The parents of children with disabilities didn’t ask to have a disabled child.  They had no choice in the matter.  Often, they have no choice on where they live – it is usually tied with where their job / source of income is.  So, they are already dealing with the stress that their child has a disability and are probably incurring substantial medical expenses to address the disability.  And, the people that they hoped to trust most with the education of their child – the local public school district – is putting up a fight with them.

5.  Now, it’s probably obvious that the school district has to pay for the attorneys they hire.  Where do you think that money comes from?  It comes from the school district’s budget.  And if we circle back to #2 above, the school district’s budget comes from, in large part, YOU – the taxpayers.  So, the legal fees being spent to fight against parents who are trying to help their disabled child is money you have given to the schools for public education.

And, this is no small amount.  Some special education cases are fought with such vigilance, that school district attorneys rack up tens (sometimes hundreds) of thousands of dollars in bills.  The other trick they would pull is when someone tried to find out how much was spent, the school districts would claim the attorney’s bills were privileged and confidential information and would not release them.

Well, that is no more.  Because those legal fees are being paid by tax dollars, the attorney’s bills are public records that must be disclosed just like other public records.  Recently, the California Supreme Court said that such attorney’s fees invoices are public records and must be disclosed under that state’s public records act.  I believe that every state’s public records act will be, if it isn’t already, applied in that same way.

It is time that you know that your tax dollars are being spent to deny kids with disabilities a free public education, the same education that non-disabled kids receive without any dispute.  This is immoral and if you want to stop it, you need to get active in your local board of education or show up to meetings and complain about this.

Take some action and stop this nonsense!