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by Sonja Kerr, Esq.
Iíve found this area of the law to be intellectually challenging, emotionally charged and basically, a great deal of fun! Here are three tips.
Donít Sail Solo
If this is your first special education case, my advice is donít go it alone. There are four reasons for this.
First, special education law is complex. Even when you think you understand it, you donít.
Second, special education law changes fast and it is very extremely hard to keep up. Even when you think you understand it, and maybe you did, then something changes the landscape completely.
Third, special education law is largely dependent on the unique needs of the individual child. Because of this, the childís disability is an extremely important factor. There are many kinds of disabilities. In my practice, Iíve represented children who have: learning disabilities, hearing impairments, spina bifida, cerebral palsy, autism, central auditory processing problems, vision impairments, mental retardation, Downís syndrome, emotional impairments (i.e. schizophrenia, depression, obsessive compulsive disorder), San Filipo syndrome, Williamís syndrome, fragile X, etc.
The trick is to learn enough about the disability or syndrome to fit it into the law and to help the parents detercmine what the child needs, usually with guidance from an expert. Is one hour of one-to-one tutoring a day enough for this particular child? What method of reading does this child need? Unfortunately, there are those out there who will offer solutions to parents that are either unrealistic or improper. It is part of my job to help parents sort these things out and come up with realistic answers and proposals.
Finally, the hearing system is bizarre. In one state, procedure may rule the day. But in another, procedural issues may not be viewed as important. Each state has its share of hearing officers who are less than helpful. It takes time to learn about this too. So, because it can take a lot of time to "come up to speed" on these issues, it is best not to go it alone.
Remember Whose Job it is to Educate
Above all, remember that it is the schoolís job to educate and to know what the child needs. Often the teachers know and are secretly on your clientís side but are afraid to say so. If you give them an opportunity, they just might speak up.
I donít know that there are any specific cases that are the "best" to refer to in a brief. In addition to the usual U. S. Supreme Court cases, however, there are a few that I feel are helpful because they address certain key points.
One of the most irritating school district defenses comes when they try to paint parents in a bad light. In response to this tactic, I usually cite C.B. v. Kasson-Mantorville, 22 IDELR 380 (MN SEA 1994) where the hearing review officer said:
engagement in the educational process. However, the failure of a student to cooperate
with school staff in attaining the goals and objectives in the childís IEP does not relieve
school officials of the responsibility to provide a FAPE to that child. (Citing OSEP Letter
16 EHLR 884). Further, "the law is about what the district must do, not what parents
must do." Citing Bateman, Better IEPs, 1992.
in our area, I rely on Brantley v. ISD 625. In that case,
four wonderful things happened. First, the Judge pointed out that an
IEP with "vague" goals and objectives could not provide FAPE. He
also upheld the requirement that ESY must be considered and discussed
at every IEP meeting for the child.
Though this case had some downsides, such as no payment for parochial school (this was decided before the most recent Zobrest ruling from the U. S. Supreme Court), and threw out the ADA and race claims, it is a nice case to study because it addresses many many issues. The end of that story, by the way, is that the case settled quite well for my client. (You can find the four decisions in Brantley v. ISD 625 at: 22 IDELR 308, 22 IDELR 920, 24 IDELR 969 [also 936 F. Supp. 649], and 26 IDELR 839.)
Building a Perfect Case
If you are careful, you can build the perfect case even if your clients donít have one when they walk in your door. Here are the key steps to follow. The most perfect case I ever built is In RE ISD 318, (24 IDELR 1096 (MN 1996)), a case about Lovaas therapy.
A. Focus the Case on One Key Issue, Preferably a Programmatic One
The key is to build your case around the programmatic issue. In our case, we wanted an intensive behavioral therapy program called "Lovaas" for the child.
We had the testimony of a Ph.D. who stressed the scientific research about Lovaas therapy. Also, he had evaluated the child two times. We had the testimony of a masterís level psychologist who had significant practical experience in writing and using the program. He had also visited with the child and his family every three months for two years, and he kept in touch by videotape and phone calls. We also had the testimony of a very articulate parent who had extensive documentation to show how the program she constructed for the child, with the help of the experts, had worked for a two year period.
Each of these pieces, together with video tapes of the child (a tape of excerpts over a two year period) was extremely convincing.
We limited the effectiveness of the school districtís expert by finding two parents who testified that this expert told them the behavior program we wanted would be hazardous to their child and by announcing publicly that we questioned her approach.
Finally, prior to the hearing, we made a prehearing motion demanding to know what curriculum and method the school district was using. The school lawyers failed to respond to the Judgeís order to reveal this. At hearing, the Judge said she would take this into consideration in the decision.
Throughout the hearing, whenever the school teachers said that they had used this approach or that approach, I would simply ask whether they had ever told the parents about it. In short, if you study this case and apply its principles to any case you have, you will look like you know exactly what youíre doing.
When this case came into my office, the missing links were:
c) Refuting the schoolís expert. We solved this problems with the two adverse parent witnesses, and prep from a prior hearing I had with this witness. The parent had not been totally clear about using a home program because the school was denying FAPE, so I sent the parents back into an IEP meeting and had them do a couple of letters before I got involved. Later, this proved to be invaluable.
B. Collect All Cases on Programmatic Issue- Keep a Summary of these Cases Handy for the Hearing
In the case above, and in most cases, I collect all the cases I can on the programmatic issue. Some of the best cases are not published, so I often call around to people who may be familiar with the issue to see what the latest unpublished cases are. Then, I create a summary page (just one) of all the cases and the key points, including all defenses used by the school districts.
I rarely do prehearing briefs. Instead, I will usually send a letter to the hearing officer referencing the key issues and the key cases (on both sides). This is often very helpful to the hearing officer because it may be the first time he or she sees a completely unbiased summary on the issues.
C. Big Brother -- the State Department of Education
My final tip is to always try to learn the "lay of the land" before you take the case or ask for a Due Process Hearing. Is the state handing out grants on this issue? Has the state recently changed a rule on this question? That is, what is the state department of educationís position or view about this issue - whether or not you think they might be a party at some point. If there is anything in rule or informal letter ruling or decision, get a copy of this.
Now, I ask for the results of the districtís last state monitoring visit before the hearing. Inevitably, the areas of citation in the stateís monitoring are similar to the problems the parent is facing. This makes sense - if there is are systemic problems about ESY, most likely the child you represent wonít have been offered ESY.
I no longer have to make formal noises about bringing the state in as a party. When I'm involved, they know they must be careful and distance themselves. The way to achieve this is to sue them - just once - on a case. Alternatively, find a ruling in your jurisdiction that they have ultimate responsibility, then send them a friendly letter to advise them about the problems your client is encountering. Most times, they will write back and say "Go to a hearing," but you have put them on notice and funny things then seem to happen for your client (usually good).
In my case, I had to sue the state once and got a federal judge to rule that they had final responsibility and that did it. (See Moubry v. ISD 696, 22 IDELR 119 (D. Ct. MN 1996))
short, donít sail alone, remember whose job it is to educate, and build
the perfect case. If you do that, you will be successful or close. I
hope that this information is helpful to you. Good luck!