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III. Preparing for
a Special Education Due Process Hearing
For starters, you will need a copy of the Second Edition of both of our books, Wrightslaw: Special Education Law, and Wrightslaw: From Emotions to Advocacy. The first editions refer to the old IDEA 97 law, the newest editions contain IDEA 2004.
Wrightslaw: Special Education Law includes the full text of the IDEA 2004 statute with our comments and analysis, the federal special education regulations, Section 504 of the Rehabilitation Act, portions of the No Child Left Behind Act, FERPA, the McKinney Vento Homeless Assistance Act, and decisions by the Supreme Court in special education cases.
Wrightslaw: From Emotions to Advocacy ("FETA") is a tactics and strategies advocacy manual for attorneys, advocates and parents. Attorneys and advocates must insist that parents have both books and follow the steps laid out in From Emotions to Advocacy. The parent must learn how to organize the child's file, write good evidence letters, write "SMART IEPs," effectively control school meetings, so the school provides the child with the services he or she needs, without having to resort to costly litigation..
I. The Need to Know
1. It is quite possible that you now have or will have a child, grandchild, sibling, nephew, or niece who has a disability. Or, you may have neighbors or close personal friends who are raising a disabled child. Parents of these children experience a range of emotions including guilt, anger, frustration, and helplessness as they struggle to raise this child while also working to increase the odds that their child will become an independent, self-sufficient member of society. The laws regarding services for such children are diverse and complicated. Friends and family will look to you, the attorney, for guidance.
2. When you are consulted about a special needs child, you will probably feel empathy and an immediate desire to help. Your first impulse may be to jump in and write a letter or place a telephone call to the specific school official and, by your actions, resolve the problems experienced by these parents and child. Giving in to this impulse may give short-term relief to parents and child, but will usually do little to resolve the real problems. You must realize that special education cases can generate as much emotional intensity as a bitterly contested divorce, and are further complicated by a battle between expert witnesses, as in a medical malpractice case. As an attorney, you must be cautious about assuming that you can actually resolve these complex problems with a minimum of effort.
3. When you understand the principles contained in this outline, you will be able to field preliminary special education questions. You will also know where to look to find more detailed answers to point you and the parents in the proper direction-- to ensure that the child will receive appropriate special education services.
1. The attorney, whether consulted in the role or capacity of a family member, friend, or attorney, must approach a special ed case as one would approach a messy divorce, custody, equitable distribution divorce that has merged with a medical malpractice case being litigated in federal court.
2. The attorney must be aware that he or she will only be involved in the case for a short period of time. When the case is concluded, the matter is closed. Yet the impact of the disability will continue. The parents' struggle to secure and maintain an appropriate level of special education services will continue, often for many years. The parents must learn to deal effectively with the school system-- and should be able to "break bread" with the school staff after the present legal issue is concluded.
3. In special education matters, it is absolutely crucial that the parents develop a clear understanding about the nature of the disability, the laws, and how to measure educational benefit after a child is in a special education program.
4. To effectively represent these clients, the attorney must also understand the nature of the disability, the special education laws, and how educational benefit can be measured. In many cases, the most perplexing disabilities are not the easily observed ones -- being deaf or blind, having severe orthopedic impairments, cerebral palsy, or Down Syndrome. The "hidden handicaps" such as learning disabilities and attention deficit disorder (ADD) are related to neurological impairments. These educational and language learning disabilities can be difficult to identify and remediate. A child with autism presents incredible challenges to parents and educators.
II. Presenting the Problem
1. The parent's initial telephone call to the attorney is almost always precipitated by an emergency situation. Most calls are preceded by one of the following incidents. The crisis may be that the public school has stated that they:
a. Will not accept the private sector evaluations which identified the youngster as being in need of special education services; or that they
b. Have realized that the child's true problem is that the child is not learning disabled but is instead emotionally disturbed, and thus the child's placement and program need to be changed or eliminated altogether; or that they
c. Are doing everything that can be expected of a school system and have tried everything and it is not their fault that the child will not acquire the necessary skills to become an independent, self-sufficient functioning member of society, despite the intellectual ability to do so; or that they
d. Plan to continue providing the same special education services and programs that the child has been receiving for the past several years because the child is "really making progress" even though the parent recognizes that the child can barely read and continues to have significant written language problems; or that they
e. Assert that the child's increasing misbehavior is not related to any neurological or educational issues (causal relationship) and instead insist that the acting out or withdrawal problems need to straightened out before they can reasonably expect the child to learn. Suspensions have increased and expulsion may be the next step; or that they
f. Scheduled a meeting tomorrow, just called the parents today, and the parents do not know if they should go to the meeting, or whether they should they bring you, since the school system has
g. Decided to discontinue special education services because:
i. The youngster has obtained the maximum benefit from special education, (although is still barely able to read, write and/or do arithmetic);2. Immediate action is rarely required.
While the parent perceives the situation as a major crisis, to act quickly is often a mistake. Request that the parent gather together all documents, place them in chronological order and schedule an appointment. Do not call or write to the school officials at that point, despite the parent's urging.
In the situations as described above, the normal and immediate response by most parents is usually a big mistake and self-destructive! Feeling angry, helpless and under attack, parents often want to force a confrontation, write a nasty letter, or request a special education due process hearing.
Parents of special needs children often experience anger toward the school officials, each other, and even the child. They feel guilty, confused, frustrated, helpless, fearful and remorseful.
In many cases, parents also feel that they and their child have been betrayed by the public school educators. From the parents' perspective, they have relied upon the assertions and recommendations of the "expert" school officials for years. When they realize that their child has regressed, has fallen further and further behind and is worse off than before, they frequently shoot from the hip, miss their intended target, damaging themselves and their child in the process. The intense anger, feelings of victimization and subsequent polarization must be defused if parents are to become effective partners with you and effective witnesses.
1. Initial Interview
a. Before face-to-face contact with the parents, review the documents first, in chronological order, oldest first, most recent last.
b. Help the parents understand the gray issues in the law, the hazards of litigation, and that cases are rarely settled unless prepared for trial. At this point the attorney may want to become directly involved before all of the facts are clear and on the table. Query: Would you call the insurance adjuster and demand and force a settlement during or immediately after the initial consultation with the personal injury client? Of course not.
c. The parent's
file and the facts of the case are usually disorganized, disjointed,
and hard to assess. Parents need to understand that while they may
believe that the school system has committed numerous legal violations,
the case needs to be simplified and presented in an organized, cohesive
2. Defuse and depolarize the case. By the time parents contact the attorney, the matter has become polarized. Emotions are running high. Parents and school officials are blaming each other for the child's difficulties. It is absolutely imperative that the parents locate and join the educational advocacy organizations related to disabilities and begin receiving the informational newsletters provided by these organizations. Parents also need to develop an understanding of the disability by reading current books on that topic.
Part of the parents' emotional response is related to feelings of guilt, loneliness, isolation, and fear of the future for the child. By joining organizations and becoming better educated, they will begin the process of becoming "empowered." At that point, they will be able to initiate a more logical and less self-destructive approach toward securing improved services for the child. Instruct the parent to locate information among the books and other publications that may be useful to educate you.
3. Even though you might believe that you have reviewed the entire file, often critical documents are missing. Send out a letter and global release form to all agencies and individuals that may have any documents, evaluations and reports related to the child and family.
4. Organization of the documents. As the documents come in, have the parents organize them and date each document in pencil in the lower right hand corner and place all documents in chronological order, the oldest on top, the most recent on the bottom. Parents should not write on any of the documents or use a yellow highlighter. Notes from the parents to you about a specific document can be made on the document, using "Post-it" notes. If the parents have a computer with a word processing or spreadsheet program, have them develop a list of documents.
These activities will help the parents in at least two ways. First, they will have an opportunity to "Do Something" which will help their child's case and will also reduce their sense of powerlessness. At the same time, these activities (organizing the file, developing lists of documents) will help the parents to develop a broad overview of the child's problems and needs, instead of focusing excessively on the emotions generated by the immediate crisis. You should closely compare the duplicates and check for alterations.
5. Develop an understanding of the law so that you can identify the specific legal and factual issues
a. Legal issues in special ed cases are usually related to procedural matters, i.e. whether the child is eligible for services, and the nature of the handicapping/disabling condition, violations of timelines, and failure to implement an IEP.
b. Factual issues are usually related to Individualized Education Programs, the quality and extent of services, "default" by the public school, tuition reimbursement for private school, and whether the child is educationally benefiting or regressing under the public school's special education program.
6. Develop an understanding of the facts so that you can identify and target the specific factual issues.
a. You will need
to have a working familiarity with the nature of the disability,
educational methodology for working with the child, and an understanding
of the objective tests and measurements that are used to evaluate
progress and regression.
III. Prepare for a Special Education Due Process Hearing
Discuss with the parent that the best course is to prepare for litigation in the hopes of settlement. In many cases, parents want to extract the pound of flesh to which they feel entitled and believe that the facts and law are wholly on their side. I explain to parents that Hearing Officers may have an unconscious identification with, or reaction against, either the parent, school system or attorney. Because of mannerisms, personality style, dress and/or appearance, the Hearing Officer may be reminded of a recently deceased mother, father, brother, sibling, spouse, or child to whom they were very close. Or the association may be negative. The parent may remind the Hearing Officer of the person who successfully sued him or her many years ago.
Parents also need to understand that some Hearing Officers may perceive their role as that of a financial gatekeeper, protecting the public's tax dollars. Or the Hearing Officer may have a neighbor or a grandchild much like your client and may empathize with the parents and recognize the value of an appropriate special education. These are often hidden factors that affect the outcome of the case.
As Gerry Spence has said, more important than the facts and the law, are the perceptions of the facts and perceptions of the law. Our perceptions of the same object, fact, evaluation, and case law differ widely. Parents need to understand that to litigate is to roll the dice.
1. Clean single issue - default theory
At first glance, the case may appear to have a single issue such as tuition assistance, failure to identify child as handicapped, or a need for Extended School Year (ESY) services. These cases are often more than single issue matters, but may need to be simplified to an easy to understand case. Try to establish evidence of "damage" by the public school and show that, despite years of special education services, the child has fallen further and further behind the peer group. This can be done easily by using individualized standardized testing by your expert coupled with a charting out of test scores over time. (Refer to our tutorials about graphing out test scores with PowerPoint using the school's own test data as your evidence!)
2. Multiple Issues - Violation of Child Find Mandate
Frequently the issues may be more complex, such as the failure of the public school to properly evaluate the child in prior years and breach of procedural rules. The child may be entitled to compensatory education, i.e., a special education program that may extend beyond the child's twenty-second birthday. Had the public school not violated the "Child Find Mandate" the child might have been identified as a special education child, received appropriate special education services, progressed, and not even need desired services. (See the Draper case on our website.)
3. Theme of Case
Start to develop an overall theme of the case that is clear, simple and which you can build upon over time. You must structure and format the case so that the Hearing Officer truly wants to rule for you. This is absolutely critical! Your job is to provide this person with the evidence and the law that will allow them to give you a favorable decision.
1. Obtain a copy of your State Regulations and cross reference them with IDEA and Federal Regulations in Wrightslaw: Special Education Law, 2nd, Ed.
a. Individuals with Disabilities Education Act (IDEA) 20 U.S.C. 1400-1485 (This is available on our website at http://www.wrightslaw.com/idea/index.htm
NOTE: The statute, regulations, and U. S. Supreme Court decisions are in Wrightslaw: Special Education Law
b. Code of Federal
Regulations 34 C.F.R. Part 300
d. Obtain all publications from your state's Department of Education and the Protection and Advocacy Office in regard to the rights of parents and special education children.
2. Review special ed publications.
a. Special Education Law and Litigation Treatise by Mark C.Weber, available from LRP Publications (800) 341-7874
c. The Topical Index of Individuals with Disabilities Education Law Report (IDELR), LRP Publications
3. Review the
special education case law. All of the U.S. Supreme Court cases and many critical Court of Appeals decisions are on our website at:
the History and the Purpose of the Special Ed law discussed in the preceding article. Be sure to read the most recent Winkelman v. Parma case at:
1. Look carefully at the IEPs. Were they completed regularly and truly used as a road map to evaluate the child's progress or lack thereof?
2. Determine whether additional evaluations are needed.
3. Meet with
the private sector professionals. Are they committed to becoming
involved and testifying?
1. Compare standard score / percentile ranks re: IQ and Achievement.
2. Have the achievement scores / standard scores / percentile ranks continued to drop steadily while the child was presumably in an"appropriate" special education program?
3. It is important to understand statistics - i.e., the interrelationship between standard deviation, standard score, percentile rank and grade and age equivalent. With this knowledge, you will always be able to interpret the educational and psychological tests administered to your clients.
(Note: Chapters 10 and 11 in Wrightslaw: From Emotions to Advocacy are devoted to testing, how to use test data and how to chart test scores)
1. Have your evaluators observed both programs and are they familiar with all of the exhibits?
2. Your experts should prepare their reports which will incorporate the child's prior educational history and describe what progress, if any, the child has made and amount of progress the child should have made.
1. I usually have the parents prepare a
detailed documented letter to the Director of Special Education
outlining issues, facts and evidence supporting the case. The letter
becomes a "quasi opening statement" related to your "theme" of the
case. Make the request clear, and give the basis for it and the
legal authority justifying their position. It should tell a story using visual imagery, create empathy, and be polite. It should follow the model of our "Letter to the Stranger" at:
3. Don't give all legal theories at that time, leave some rabbits in the hat to use at trial. If you find clear breaches of procedure, alteration of documents, hold that information back until cross-examination.
a. Provide the school system with an opportunity to settle gracefully, making your case an exception to the general rule because of . . . (Such as your own failure to have done something or provided something.) Do not corner them unless you left them (as an oversight, of course) a back door, slightly ajar.
b. Don't attack the school system directly, i.e., their program for most children who have a similar handicap may be appropriate, however it is a shame that your client has so many other handicapping conditions and problems that are so severe that the child can't be educated in the regular special ed program.
1. Pre-trial Preparations
2. Due Process Hearing
a. Order of presentation v. burden of proof. These are different concepts and in special education law the first to proceed does not necessarily have the burden of proof. Determine whether the school system or parents will proceed first. Going first allows you to better structure the trial and put the school on the defensive. Going second allows you to counter-punch and move for summary judgment without calling a witness. In other words, they had the best shot, put the evidence on, and it was insufficient and, as a matter of law, you should prevail. When you make that motion, (assuming that you will be overruled,) you have the opportunity to present your closing argument and point out the flaws in their case prematurely. Despite the Schaffer case law, always assume you have the burden of proof.
b. Move to exclude witnesses. Since your witnesses are better prepared, they will not contradict each other if they do not hear the testimony. Parents and a school board representative will be allowed to remain in the Hearing.
c. If parents go first, consider calling school board representative as your first witness (adverse) and flush out why they believe that their proposal is appropriate. This can be a dangerous maneuver since the witness is being called as your own and you will need to have evidence that is contrary to that witness.
d. Direct examination: child's witnesses
i. Identify witness, educational and professional background and expertise with matters similar to the case at hand.e. Cross-examination: Child's witness
i. While your witness is being cross-examined, listen carefully for any points that may need to be cleared up during re-direct examination.f.Direct-examination: School board witnesses
Listen carefully to their testimony. Often the witnesses will have written notes that they are referring to and parrot the same theme. Frequently the theme will be to blame the parent or child for the child's failure to have a successful educational experience. It will also be asserted that the child's performance is the best that can be expected. Your witnesses will have already addressed that issue on direct. As the opposition's witness testifies, develop other questions to ask on cross and determine where in the sequence you need to ask the question.
g. Cross-examination: School board witnesses
i. This is perhaps the most important stage of the trial. With the earlier advance help from your own experts, you want to use the school's own evidence and testimony to build and win your case! If the witness referred to notes or documents during the testimony on direct other than the trial exhibits, obtain them at some point. Assess whether it is advantageous to secure them in the beginning or to wait until you are midstream in cross.
h. Closing Argument
At the pre-trial hearing determine if the Hearing Officer prefers an oral closing argument at the conclusion of the testimony or a later written brief after the transcript has been completed.
i. Oral - During the course of the hearing, you and your client should record verbatim specific parts of testimony that you can quote in closing that conclusively establishes your client's entitlement to the desired relief. Compare your case to the facts of the other similar decisions that you have with you. In many instances it may be appropriate to have previously furnished them to the Hearing Officer. In other cases it may be appropriate to provide them at closing, dependent upon trial strategy. Sometimes the landmark cases can be provided prior to the Hearing and hold until oral argument the additional cases that are directly on point for the closing argument.
Advocacy, Emotions and Dependency: Ethical dilemmas and unconscious traps.
Ryan K., et. al. v. Puyallup School Districts, 35 F. 3d 1396, 21 IDELR 664, (9th Cir. 1994) This case involved the discipline of a youngster with Tourette's Syndrome and an attention deficit disorder. The District Court and the Ninth Circuit discussed the "counterproductive stance taken by (the parent's) attorney" and his insistence that "they leave the (IEP) meeting with him at once."
Note: This Seminar was initially presented at the Virginia Trial Lawyers Association's Annual Civil Rights and Constitutional Law Seminar entitled "Representing the Special Education Child" on April 12, 1995. The program was repeated at a Continuing Legal Education Training Seminar for Legal Aid and other attorneys in Virginia who earned educational credit in conjunction with the Virginia Poverty Law Center, Inc. on June 29, 1995 at the University of Richmond, Richmond, Virginia.
On December 11, 1996, the program was given as part of a comprehensive six hour Continuing Legal Education program. The training was sponsored by the Professional Development Network for attorneys representing special education children in Virginia. In conjunction with this outline, the attorneys and advocates also learned how to use computer spreadsheets to interpret educational and psychological tests for use as evidence in special education due process hearings.
Since December, 1996, this training program has been given in Continuing Legal Education Seminars for attorneys in different states. This outline is included in one of our publications that is geared to help the inexperienced attorney through the first special education case.
This manual, our WebEx Training Modules and our
Special Education Law and Wrightslaw:
From Emotions to Advocacy are all designed to help parents
and lay advocates become partners with the attorney when preparing
a case for trial.
Make those assumptions! You will go to a due process hearing, there will be no appeal from that point, and you, the parent, cannot testify. Start out with that mindset. You will think through how to prove your points without being able to testify. You will develop a paper trail. You will have experts testify on your child's behalf.
You will prepare for
trial. When you have prepared for trial, you have increased the
odds that you will not go to trial and that you will have a favorable
settlement. Cases are settled with favorable terms after cases were
prepared for trial. These cases are not resolved by a letter from an attorney
to the school district. They require hard work and preparation.