Put Communications Between Teachers and Parents in the IEP

A new tactic being used by schools against parents of children with disabilities is to require / funnel all communications with the school through one person, usually the case manager.  We’ve seen numerous questions by parents if this is illegal or whether parents can request two-way communication be listed as an accommodation in the IEP.

Yes it is, yes it can and it should be.

But you won’t find the requirement in IDEA.  You’ll find it in ESSA.  Read on.

Not in IDEA

IDEA does not have a requirement or regulation that says that there should be ongoing communication between teachers and parents of children with disabilities.  Probably because Congress felt that such communication was basic common sense and they wouldn’t need to actually write it into a law.

What IS in IDEA is the following:

IDEA guarantees parents and their child with a disability numerous legal rights identified as “Procedural Safeguards”.  See 20 U.S.C. §1415; 34 C.F.R. §§300.500-520.  The U.S. Supreme Court has held that it is not only the child with the disability that has legal rights under IDEA, but the parents are also entitled to assert legal rights on their own behalf under IDEA.  Winkelman v. Parma City School Dist., 550 U.S. 516, 127 S.Ct. 1994, 1996 (2007).

One of the key Procedural Safeguards is “an opportunity for the parents of a child with a disability . . . to participate in meetings with respect to the identification, evaluation, and educational placement of the child.”  20 U.S.C. §1415(b)(1); 34 C.F.R. §300.501(b)(1) (emphasis added.)  The parents of a child with a disability are mandatory members of the IEP Team.  20 U.S.C. §1414(d)(1)(B)(i); 34 C.F.R. §300.321(a)(1).  Indeed, “the concerns of the parents for enhancing the education of their child” is critical in developing the child’s IEP.  20 U.S.C. §1414(d)(3)(A)(ii); 34 C.F.R. §300.324(a)(1)(ii); see also Honig v. Doe, 484 U.S. 305 (1988); Schaffer v. Weast, 546 U.S. 49, 53, 126 S.Ct. 528, 163 L.Ed.2d 387 (2005) (Parents play “a significant role” in the development of each child’s IEP.)

Parental participation in an IEP meeting is so vital, it is set forth twice in the IDEA regulations.  34 C.F.R. §§300.322(a), (c) and (d) (emphasis added); 34 C.F.R. §300.501(b)(1).

But that is all concerning parental participation in the development of an IEP.  These provisions don’t discuss the daily, ongoing communication with the school.

Now, we look at ESSA . . .


In 2017, Congress passed and President Trump signed the Every Student Succeeds Act, 20 U.S.C. §6301 et seq. (2017) (“ESSA”).  This was an amendment of the prior No Child Left Behind Act (“NCLB”).

The ESSA guarantees parents of a child with a disability to participate “in regular, two-way, and meaningful communication involving student academic learning and other school activities” and “play an integral role in assisting their child’s learning.” To accomplish that goal, parents are “encouraged to be actively involved in their child’s education at school . . . [and carry] out of other activities, such as those described in section 1116.” 20 U.S.C. §7801(39) (emphasis added.)

The activities referenced in “section 1116” state that parents may engage in to participate in their child’s education include, inter alia, ongoing communications between teachers and parents and classroom observation. 20 U.S.C. §6318(d) (emphasis added.)

Put Two-Way Ongoing Communication in Your Child’s IEP

Thus, since Congress deemed this so important that they wrote it into law, it is important enough to make it part of your child’s IEP.  Show them the law quoted above.  (Maybe even print out this article and bring it to the IEP meeting.)  Tell them that you want this accommodation written into the IEP, especially if the school is trying to deny this right of access.

I’m quite sure that even teachers would welcome such ongoing dialogue.  The key is not to abuse this right – don’t contact the teachers several times every day.  Be reasonable as teachers have other students and their parents to meet this obligation.  But, if you do so reasonably, there is no legal basis for a school to block such regular and common sense communication.

It’s no longer just common sense – it’s now the law.


Bullying and the Gebser Letter

You probably know what bullying is. You may not know what a Gebser Letter is or what it does. Sit down, grab your cup of coffee and read on.

The Effects of Bullying

First things first. It is now widely accepted as fact that children with disabilities are more likely to be bullied than their neurotypical and able-bodied peers.  About 20% more likely, to be precise.  A study was performed by Chad Rose of the University of Missouri College of Education and Nicholas Gage of the University of Florida examining 6,500 students from K-12 during the years 2011-13.  Although the study did not include online bullying (which has now become more pervasive through social media), it found that students with disabilities were bullied more than other kids particularly in grades 3 through high school graduation.

More about the study can be found in this excellent article “Disabled children more likely to be bullied during school years, study says” by HealthDay News.  There is even more helpful information on the statistics on bullying and harassment of students with disabilities at the National Bullying Prevention Center’s website.

It is also now widely accepted that bullying negatively affects a student’s ability to learn.  It directly impacts that student’s education.  The U.S. Department of Education’s official blog published an article called “Keeping Students With Disabilities Safe from Bullying” that highlighted a 2013 Guidance Letter on bullying.  A year later, the USDOE’s Office of Civil Rights issued an even stronger Guidance on how schools should handle bullying.

What is a Gebser Letter?

In 1998, the U.S. Supreme Court issued its opinion in a case titled Gebser v. Lago Vista Independent School District, 524 U.S. 274 (1998), in which Justice Sandra Day O’Connor wrote the opinion for a divided court.  The Court decided that under Title IX, you cannot sue a school district for damages for bullying or harassment unless you have notified a school official who has the ability to take corrective measures on the district’s behalf of the misconduct and the school district is “deliberately indifferent” to the notice.

Out of that case came the very simple concept of preparing a letter – a so-called Gebser Letter – to provide the proper notice to the school.  The only question was whether the school then acts with deliberate indifference to the conduct.

This case emphasizes our constant mantra in special education law – If it ain’t in writing, it never happened. Document everything!

We strongly urge you to consult with a lawyer on the proper format and language of a Gebser Letter and/or if your child has a disability and is the victim of bullying.  We have provided a form Gebser Letter in our packet of special education legal forms, which are FREE to download, but remember that these forms do not constitute legal advice and are not a replacement for consultation with a lawyer in your state.  But the letter could get the ball rolling for your child and you.

Free Special Ed Legal Forms on SchoolKidsLawyer.com.

You can also have a 30 minute consultation with us for $100 to discuss your child’s case.


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!

Websites for Parents of Twice Exceptional (2e) Kids








Audio Recording IEP Meetings – Is It Allowed?

Having an audio recording of what happens in an IEP meeting is powerful evidence, especially when school districts deny what was said or fail to put a service in writing into the IEP.   For example, an audio recording can prove or disprove what was actually discussed during the meeting, whether the parents were given proper opportunity to participate, and what decisions or objections were made.   For those reasons, parents often wonder if they are permitted to record an IEP meeting.

So, can you do it?

Federal Law

There is no federal law prohibiting a parent or school official from recording IEP meetings.  IDEA and the other special education laws are silent on that specific issue.

However, IDEA does say a few things that are relevant to the discussion:

  • Parents are critical members of the IEP team
  • Parental participation in IEP meetings is vital and if a school blocks such participation, it is a denial of FAPE
  • Parents have the legal right to understand the IEP and, if necessary, have it explained to them

Audio recording an IEP Meeting, when the IEP Team is aware and consents to it, is not a violation of federal privacy law.

So that means you can do it, right? Not so fast.

The U.S. Department of Education (USDOE) Office of Special Education Programs (OSEP) has issued a letter opinion and Policy Memorandum on this subject in June 4, 2003 (PDF file).  The bottom line of the analysis is that it is a local policy issue and depends on several factors.

When a federal law is silent on an issue, the individual states can decide or legislate on the issue.

State Privacy Laws

The next hurdle to overcome is what state law says on privacy and audio recordings.  Each state has its own laws regarding the consent required to audio record events, even if they are ‘public’ events.

Some states are known as ‘dual consent’, which means both parties must know about and agree to the recording.  Some states are ‘single consent’ which means that only one of the interested parties (usually the parent who wishes to record the IEP meeting) has to agree to it.

While not exhaustive of every state’s law, the Digital Media Law Project collected links to some state’s laws on this issue.  This site is not being kept up to date, so make sure you check your own state’s law on recording or consult with a local attorney.

School District Policies

It is therefore left to the State Educational Agency (SEA) or Local Educational Agency (LEA) to determine the policy on audio recording these sessions.

The SEA or LEA (local school district) may issue a policy requiring, prohibiting, limiting or in any other way regulating audio recording of IEP Meetings.  If the public agency has a policy that prohibits or limits the use of recording devices at IEP meetings, the policy must have exceptions necessary to protect parental rights, such as the ability to understand the IEP or the IEP process. Any such policy on tape recording IEP meetings must be uniformly applied.

Protecting Access to Recordings

Any recording of an IEP meeting maintained by a public agency is an “education record,” within the meaning of the Family Educational Rights and Privacy Act (FERPA)[1] and would be obtainable by the parents through a written request.  It would also be subject to the protections of FERPA prohibiting its release to anyone not authorized under that law.

So what do you do?

Parents wishing to use audio or video recording devices at IEP meetings should consult state laws or local school policies for further guidance or consult with a local education attorney.


[1] 20 USC §§1232g and 1232h; Regulations 34 CFR §99.1 et seq.

The New Jersey Dyslexia Handbook

A group of smart minds in the New Jersey world of special education gathered and put together an excellent guide to assist schools, parents, and providers in helping children with dyslexia.  They recently issued “The New Jersey Dyslexia Handbook: A Guide to Early Literacy Development & Reading Struggles” (PDF) which is free to download from the NJ Department of Education website.

The table of contents shows that it covers everything from the definition of dyslexia to screening to various interventions and accommodations that can be made for the student.

If you have a student with dyslexia, you should download your free copy here:




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

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

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

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

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

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

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

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

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

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

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

What’s a FERPA letter?

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

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

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

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

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

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

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

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

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

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

Pass the IEP, please!

You remember at the dinner table (perhaps most notably the Thanksgiving Dinner table) when you would ask someone to pass something along?  Maybe it was the stuffing bowl; maybe it was the cranberry sauce; maybe it was the dinner rolls; or maybe it was the fruit cake (OK, I know it wasn’t the fruit cake because no one asked to have that passed, unless it was to pass it along to the waste basket).

The point is, you wanted to make sure everyone at the table had equal and full access to every part of the meal.  Wouldn’t you have felt left out if you didn’t get any mashed potatoes? or Pumpkin Pie?  or [insert your favorite part of the meal here]?  Of course you would.

The same principle applies to your child’s IEP.  You want to make sure each and every teacher and school staff member that may encounter your child has equal and full access to your child’s IEP.

Failure to do so might result in one teacher violating the IEP unknowingly or not knowing how to respond to a certain situation.  For example, if the gym teacher doesn’t know that Tina isn’t supposed to be required to participate in group sports and the gym teacher makes her the pitcher in softball, Tina may have a complete meltdown or other reaction that triggers her disability.  Then Tina may have to miss her remaining classes for the day, all because the gym teacher didn’t even know Tina had an IEP and wouldn’t have assigned her to that task had she known.

As a parent, do not assume the school has circulated your child’s IEP to all of the contact points.  You need to handle this yourself.  Whether that means sending an electronic copy to each contact person by email or even walking a hard copy in to every person, you need to assure that this is done.  You need to consider every potential aspect of your child’s day: special education teachers; general education teachers; “specials” teachers (art, music, gym, computer lab, etc.); school nurse; school guidance counselor; director of special education; vice principal; principal; even the janitor, if that person interacts with your child.  So what if they’ve already received it?  A duplicate is not going to harm them (and an electronic duplicate doesn’t harm the environment).

This is not a silly concept.  If your child is experiencing some aspect of his/her disability, let’s say it is epileptic attacks, and a teacher encounters your child not knowing what is going on, they may make an incorrect and potentially dangerous decision.  A simple thing like providing these personnel with the IEP at least will clue that person into the fact that someone in special education or the medical staff need to be alerted to the situation.

So, much like the salt and pepper on the dinner table, make sure you pass the IEP to everyone at your child’s school to avoid any misunderstandings and help your child succeed in the system – even if they never have need of the IEP (like the salt).

Special Education law is not about revenge

Many clients come to me with vindication on their minds.  They feel they have been wronged and want to inflict pain on whomever did the wrong.  They want revenge.  This is especially true in the field of special education law.  They want to “get back” at the school district that they felt is interfering with their child’s education; or, the school district wants to show the parents their place, which is not to interfere with how they are handling the disabled children in their programs and that, somehow inherently, they know better than the parents.

However, that is not what the law is about.  The following is a longer version of what I tell any client that comes to me with a revengeful goal.

The law, especially the civil law of which special education law is a subpart, is not about revenge or vindication.  If that is the sole goal of pursuing legal assistance, two things are true for me: (a) I won’t take the case; and (b) the client will never feel satisfied.  More on these two results in a minute.

But, first, the response I get to this principle is “Well, what’s the point then?”

The answer to this is very simple: The purpose of civil law (and especially special education law) is to put the wronged person back into the same position they would have been had there been no wrong.

Let’s examine this with a simple hypothetical: Imagine a neighbor was trimming her hedges and she accidentally cut off a limb on a tree in your yard.  You had grown that tree from a sapling.  The tree doesn’t die, but does suffer a bit in growth.  You have to spend a lot of time and effort to protect the tree and make sure it lives.  You are really mad at your neighbor (probably, there is some other cause of that anger and this merely exacerbated it).  You want your neighbor to go to jail.  You come into my office seeking legal help.

Aside from me giving you a shorter version lecture on this topic, what will the law do?

First, the law will NOT put your neighbor in jail.  Jail is only for criminal actions and this is not a crime.  It was an accident, for which the civil law is designed.  We will discuss the nature of the civil wrong – it is trespass (unlawful encroachment onto your property without permission causing a harm).

Second, I will try to ascertain why you are so angry (if it is caused by something other than the tree) and what the true costs (we lawyers call this “damages”) the harm to your tree incurred.  For example, you spent money to protect the tree; the tree survives; and there may be some sentimental value to the tree to you.

Third, I will discuss what is the goal of the case.  What would put you back in the position you were had your neighbor not accidentally cut off your tree limb?  This might be an apology; it might be some money to reimburse you for the costs incurred; or it might be for the neighbor to pay to have a new tree planted in your yard.

But you want to sue and get them back for what they did.

At this point, I will politely thank you for coming to my office and advise you that I don’t take cases for revenge.  Maybe you will say, OK, I don’t want revenge, I just want some repayment here.  Then we have a conversation on how to go about achieving the goal.

Now, this is the most important part of this post.  Achieving the goal is RARELY if EVER reached by litigation, by suing someone.  Adopting a “bully” attitude NEVER achieves the goal.  Remember that old saying your mom used to say, “You catch more flies with honey than with vinegar?”  (We won’t discuss why you want to catch flies in the first instance, but you get the point).

There are many ways to achieve the goal without a big fight.

These principles ARE and SHOULD BE applied in the special education arena.  If your disabled child is not receiving services that provide them with an equal opportunity at a “free appropriate public education” (FAPE), then we need to have a discussion on how to achieve that goal.  Resolution may be as simple as explaining to you your rights as a parent and your child’s rights and how the process works.  It may also be as simple as being an active, yet collaborative, participant in an IEP meeting or an eligibility meeting or in the evaluation process.

Occasionally, clients come to me after working with an advocate.  Some advocates (certainly not all or even most, but some) either provoke the revenge mentality or make it worse with the clients.  While I understand the reasons behind this (often advocates are parents of disabled students who have had to fight their way through the system on behalf of their own child with little knowledge of special education law and with some resistance from the school districts), it does not justify it.  Some advocates misdirect their anger from their own experience towards the client’s school district.  This causes a lot of misperception and sometimes legal inaccuracy about the client’s situation, and consequentially creates a negative atmosphere in which to create a solution.

Representing parents in a special education matter must be handled in a calm, objective atmosphere with the goal of a collaborative solution that truly helps the child.  Bitter fights over minor procedural mistakes do not necessarily help the child.  Certainly, a battle purely on “principle” is not a reasonable strategy because it ignores the needs of the child.

Part of this calm, objective atmosphere is the realization of two key facts: (1) the parents are often panicked or in grave fear for their child’s future; and (2) most school district special education personnel really want to do the best thing for the child.  [Thank you to my colleague Katie Kelly www.katiekellylaw.com for expertly enunciating these two salient issues to me.]

Most people, including those on the school district side, do not go into education (or special education, for that matter) without the bests interests of children in mind.  Extremely few school district personnel are vindictive about a special education situation.  Thus, parents should likewise not be vindictive.  It makes resolution that much harder (and expensive, if you are paying a professional, such as an advocate or attorney).

So, if you arrive in my office or contact me with a special education issue, I will represent your rights zealously and with passion.  I will try to reach the best possible solution to your disabled child’s educational problem.  I will NOT seek revenge or a bitter fight with the school district, but I will fight with fervor if I encounter the rare obstinate administration.

If you keep these thoughts fresh, in the end, you will be much more satisfied with the result and with the legal process.

Now I will sit and wait for the anticipated onslaught of hate mail . . . LOL