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School Attorney at IEP Meeting – Parents Walk Out!

07/02/08
by Pete Wright

I am an attorney practicing Special Education. I do not attend IEP meetings. We have an advocacy service and an advocate attends IEP meetings with parents. In our district, when an advocate from our advocacy service attends an IEP meeting, the district makes sure their attorney is also present.

The parents request that the school attorney leave. The district’s attorney states she is there because she is representing the district, not because she has special knowledge and expertise regarding the child.

The parents and the advocate leave because of the hostile adversary environment. The IEP is held without the parents. Here is my question …

I believe that the IEP is not appropriate because the parents did not have an opportunity to participate.

Is this cause for a Due Process Complaint?

No, the presence of a school board attorney is not cause for a due process complaint.

The Feds have pretty consistently said that it is up to either the parent or the school board to determine if a person has special knowledge that permits them to attend. This came up in the Commentary re: new special ed regs. The feds did not revise the regulation, but left it up to the party inviting the other person.

When parents walk out of a meeting and refuse to participate, some courts have held that against them. By walking out, they waived their right to participate.

When the school board sends their attorney when they know an advocate will attend a meeting, this tells me that they are fearful of the advocate. The advocate has more power than probably recognized. I do not recommend that parents and the advocate leave because the school attorney attends a meeting. I encourage them to ask questions of the attorney re legal issues in order to clarify matters.

If the meeting is being recorded, the attorney will be very cautious in answering questions. If the case goes to a due process hearing and if the attorney was an active participant in the IEP meeting, then the attorney is at risk for being called as a witness at the DP Hearing.

This legal principle is the same in other areas of law. If an attorney witnesses an automobile accident, that attorney cannot represent either party in a civil suit. In your situation where the school board attorney represents the district, that attorney is at risk of violating the State Bar’s ethical rules.

I’ve seen this happen before, both ways, when an attorney represented parent and when the attorney represented a school district.

Something else to bear in mind: If the parent can convince the school district attorney that what the parent wants is the right thing to do for the child, the case is over. Convince their attorney and this person will convince the district to resolve the matter. While the presence of a school board atty is usually viewed as a threat by parents and advocates, this is actually a great opportunity to market and sell what the child needs.

Over the years I have represented many parents who were fearful about IEP meetings, especially if the school bd attorney would be there. After they consulting with me, their perspective and demeanor changed. They were able to view and approach the IEP meeting as a marketing/sales opportunity, and they prevailed.

On another note, if you are not a member of the Council of Parent Attorneys and Advocates (COPAA), you should consider joining. Questions like this are discussed on the COPAA Law list every day. URL is http://www.copaa.org . Pam and I are charter members.

Pete

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33 responses so far ↓

  • 1 Amy 04/04/14 at 11:58 pm

    My son’s school district has sent a refusal to sign contract for him to enter a new facility until attorneys view the contract. Do most school districts go this route? He is 19 and developmentally disabled and still under child services.

  • 2 Christie 01/16/14 at 3:38 pm

    Pete, this is a great reminder that walking out of a meeting, though it may feel good in the moment, can put the parents’ right to participate in the process at risk. Instead, take a deep breath, stay, ask questions, and document! Thank you!

  • 3 Antoinette 06/21/12 at 7:21 pm

    I had a scheduled written and signed confirmation of an addendum to an I.E.P. When I arrived I was told that no I.E.P. would be held in fact what they wanted to discuss was if I was going to accept the resolution that they provided to the Office of Civil Rights. Are they out of compliance and have any laws been violated?

  • 4 Sharon L. 10/17/11 at 9:38 pm

    Jan yes the school can bring their attorney to any IEP meeting but they should let you know in the invitation. I would highly recommend you get someone to go with you, your spouse, an advocate, a friend, or an attorney if you have one. This sounds like an intimidation tactic. I would take a digital taper recorder as well and let them know you are bringing it. Lastly you can ask why the attorney is there and get it on tape. You don’t have to sign anything and you can ask for a DRAFT IEP to take home with you to look at it to be sure you don’t miss something.

  • 5 Jan 10/17/11 at 2:38 pm

    Can a school district invite their attorney to attend an IEP when the parent doesn’t have any advocate or attorney present?

  • 6 Cindy 03/03/11 at 1:23 pm

    This sounds like the kinds of things my son’s school does. They often have people brought to meetings, and I find out only when the person gets there and sits down. I have an IEP meeting coming up, and they have stated that they want to have an administrator from another school present. I’m not sure why, and, since I will come without any advocate, it makes me very nervous. I would like to convince them that no outside people need to (or even should) be there. Is there a good way to do this?

  • 7 Dorothy 02/21/11 at 8:26 pm

    The parent of a Moderate MR student has refused to sign the IEP because she states that the school district has not held to the promise to ensure that her child has what is needed (materials, etc.) to be properly educated. The child entered the present school district from another state, but not IEP was held within 30 days. What grounds does this parent have to stand on. Presently, the child is in the classroom, receiving services under a current evaluation but not a current IEP.

  • 8 Sue 02/11/11 at 6:51 pm

    Did the parents have prior notice the school district attorney would be there? If not, then how is it equitable to have legal counsel available to the school district and not to the family? In our school district, the public schools “match” your resources. If you notify you’re bringing a tape recorder, then they bring one, also. Same with bringing an attorney; if you have one, the school district attorney shows up. The schools insist on prior notification always – don’t parents have the same right?

  • 9 Gay V 02/11/11 at 1:02 pm

    I advocate for families. One meeting the union president attended, representing the teacher. This we felt could be a breach of confidentiality, as he had no information on the student or wouldn’t offer knowledge to benefit the student.

  • 10 colleen 02/11/11 at 12:48 pm

    Our school hired consultants to come in and help with their special ed. program. Can the consutlants be at CSE meetings and run them? If they don’t have direct contact with our student can we ask that the consultants not be there?

  • 11 lisa 02/08/11 at 4:57 pm

    if the dist brings an attorney to an IEP meeting without notifing us is that legal?

  • 12 Judy 08/19/10 at 2:00 pm

    School requests’ specific name of assistive technology” is not written on IEP
    Assistive tech is in Part B, under accomodations and there is a language arts goal computer /or the assistive tech can be used. i.e. Kurzweill is the specific name.

    Is this in the law, or simply a school preference, that the Assistive Tech is not ” named ” on the IEP

    Students need is identified and all agree student needs the assistive tech, but school is requesting ” do not write specific name of the assistive tech” on IEP

    This is fine, correct, as long as school does not in some way used as denial of service. District would have to challenge the type of assistive tech being asked for, correct?

    thank you

  • 13 Francis 02/26/10 at 7:04 pm

    Does an attorney for a school district (who is not considered an employee of the school district) who attends a CSE meeting, allowed to look at a student’s school record without the consent of a parent? Since a CSE meeting is not considered a legal proceeding, we believe that the attorney did not have the right to look at our child’s information. If he is not allowed to look in the file, what law did he break?

    Thank you for your time.

  • 14 Yolanda 01/21/10 at 4:39 pm

    Unfortunately the SB attorney in my district does not act for the child’s interest. He tells the school IEP team what to say, what not to say, what to agree to, etc…before the meeting; then I enter and feel like I’m in a private meeting with the attorney and a bunch of robots who all look to the atty before responding to Qs. For two years my son was denied simple services (reading & writing assistance) due to SB atty. He now has them in place, but is over a year behind and a teenager with no interest in learning. SB atty has also delayed evaluations for 2 years after parental request and refused to accept IEE’s as current evaluations (even after SB paid for them!). Unfortunately the SB atty here is NOT in place to assist the child. Then again, neither are the Florida courts.

  • 15 Tanya 12/14/09 at 1:14 am

    YIKES! I just signed and returned to my school a waiver to 10 days notice of meeting. I just now noticed that they are inviting for the 1st time an attorney to the IEP meeting. (Our son recently got injuried at school due to staff not being trained in MANDT or any restraints.) Can I revoke consent for him to attend? I understand that he/she has to have ‘knowledge or expertise’ about my son, withstanding the law. Why now? I think they are scared and worried but on the other hand, I am too – we withdrew him from the school – this is the second time he has been injuried. We desire a return but they MUST get trained. Should we allow the attorney to be there??/ Help the meeting is Dec 17!

  • 16 Maritza 12/13/09 at 12:44 pm

    I have read through the comments, my question is: if there is an IEP meeting and a teacher can not attend for (X), is this teacher responsible for signing any document of this meeting although he/she is not present? Please need advise.

  • 17 Wrightslaw 11/12/09 at 12:55 pm

    Colleen:

    It is difficult to prove retaliation. Complaints can take a long time to resolve – and they may not resolve the issue.

    There is bad blood between you and the CSE chair over the earlier incident, so her behavior (refusing to grant requests, bringing the attorney to meetings) make sense.
    When you push for a service, she pushes back. She cannot give in to you without losing face. Result? Your child does not get the services he needs.

    Because of the history and negative emotions between you and the CSE chair, you need to pull back and get another person involved – an independent evaluator and/or educational consultant. Get a comprehensive psycho-educational evaluation of your son. Ask the evaluator to attend the next IEP meeting. Based on his/her test results, the evaluator can describe your son’s strengths, weaknesses, and what he needs in an educational program.

    Look for an evaluator who provides training to school staff and knows how to communicate with school personnel.

  • 18 Colleen 11/12/09 at 12:26 am

    I am advocating for my son, now a high school senior, and am faced with retaliatory behavior from the Committee on Special Education (CSE) Chairperson. She has the district’s attorney attend all of our meetIngs, and she refuses every request we have made for our son. I have taped every meeting.

    I am an advocate for a local advocacy organization. I was assigned to advocate for a child in a neighboring school district for a number of years. The CSE Chair in that district is now the CSE Chairperson in my district. She left her former district shortly after a meeting where I asked her to produce a policy she claimed prevented her from including a particular statement on the child’s IEP. No such policy existed. The parents complained about her behavior to the BOE and she left that LEA.

    Retaliation? State Complaint?

  • 19 Casandra 10/29/09 at 8:14 am

    Question: What if the attorney was not listed on the written invitation? Are not the parents supposed to be notified ahead of time of the attorney’s attendance along with everyone else who will take part in the meeting? I thought the school must document the “positions” of those who would be attending, i.e. school psych, speech path., attorney, etc. on the invitation. If this is true, and the school blindsides the parents at the start of the meeting, do not the parents have the right to refuse that parties attendance? What are the proper protocols to deal with this matter?

  • 20 Casandra 10/29/09 at 8:06 am

    I am about to have an IEP for my son again…The first the school wrote the IEP before I even entered the meeting and they did not consider anything I had to say. They even wrote the IEP without his records from the previous school. Most data was missing or incorrect, for they only had a copy of my draft I gave at the beginning of the school when he arrived. IT was not the final IEP because we had so many problems at the previous school, denying him rights and that school never sent me my final IEP. I have a disability which makes it hard for me to comprehend what they are saying and I requested a mediator but they have not responded to me again

    Q: How do I properly ask for a Mediator? Am I allowed to ask for someone who is not affiliated with the school system or my child? Is there a list of people that I need to request to be @ IEP?

  • 21 Maureen 04/27/09 at 5:21 pm

    I wanted to ask about parents rights as far as when IEP meetings are held. I just found out today that my son’s school is having an IEP meeting tomorrow morning. I thought I was supposed to receive written notice. My ex-husband received a letter four or five days ago, but I got nothing and I am the custodial parent. I asked them to cancel the meeting and make it another day so I can attend. What do I do if they hold the meeting without me?

  • 22 Keith 03/10/09 at 7:56 pm

    I have a daughter that has special needs and in her IEP it stated she would recieve occupational and physical therapy. There was a delay with her services and the therapies did not start until the summer after the school year. We were told that they usually did not do it in the summer but they would for us since we waited so long. I have been told that this is a violation of the IEP. What action should we take?

  • 23 Shawn 09/08/08 at 2:18 pm

    If the school has their attorney marked as going to be present
    at your IEP, and you need to reschedule due to conflict of times and dates, the SPED direstors calls you and says that the meeeting can be rescheduled and without attorneys. What should you do? I think I would want my attorney there given the
    run around that we have had. Is that coorect? What would you do?

  • 24 Stefanie 08/05/08 at 10:24 am

    Deb
    What Long Island lawyer scandal are you referring to? Thanks. Stefanie

  • 25 Blake 07/24/08 at 11:24 pm

    Question: What if the attorney was not listed on the written invitation? Are not the parents supposed to be notified ahead of time of the attorney’s attendance along with everyone else who will take part in the meeting? I thought the school must document the “positions” of those who would be attending, i.e. school psych, speech path., attorney, etc. on the invitation. If this is true, and the school blindsides the parents at the start of the meeting, do not the parents have the right to refuse that parties attendance? Just wondering.

  • 26 Deb 07/23/08 at 7:36 pm

    We had one attorney here that districts would pay to travel five or six hours to sit in iep meetings if I was attending. A lay advocate. (I attended your seminar) He started to show up at many schools. He would give the school borderline legal advice. He never had any intention of meeting the childs needs. He got paid travel time, meeting time and of course every other fee he could bill for. His name and his firm came up in the Long Island Attorney scandal investigation. The fees they were fined were nothing in comparison to what they took districts for or the kids they hurt. I would check out who the attorney being invited is. It changes your strategy and how you deal with them if they are true hired guns and been doing sped law for years or the standard school board attorney who really knows very little in regard to much of sped law. That’s been my experience anyway.
    Deb

  • 27 kelly 07/08/08 at 7:58 am

    If an attorney has attended IEP meetings and has advised the school to do things that are clearly not O.K., is there not an ethics violation for that attorney? How do you go about letting that be known? Can that be reported somewhere? I am a teacher as well as a parent and I have indeed seen attorneys say things in IEP meetings that was not in the best interest of the child and was contradictory to the law. I have also seen them sit quietly while district staff said things that later caused violations. On the flip side, once or twice I have seen the attorney pull the school district back into line and be helpful. It appears that most if not all of the districts in our area are represented by one group of attorneys. In parent support group meetings we are hearing stories similar to ours over and over. So it is not unique. My next question would then be… if the district’s attorney has been in IEP meetings and even led the IEP meeting, can they then be the attorney for a Due Process hearing? It seems that they are more of a witness just as the other IEP team members.

  • 28 Wrightslaw 07/07/08 at 12:55 pm

    David: An attorney is responsible for representing their clients’ interests – this is true of school attorneys and parent attorneys. Good attorneys (parent and school) want to develop creative solutions that meet the needs of both parties.

    I agree that we do not live in a perfect world. The world is not perfect for parents of kids with or without disabilities. The world is not perfect for people who have been held in Guantanomo Bay for years with no charges against them, nor for people who are incarcerated for crimes they did not commit because the evidence that would clear them was withheld.

    I mention these issues because it’s important for people to accept responsibility for protecting and asserting their rights in every area of life. Many parents hand over the responsibility for educating their child to others, expect them to make decisions that are in the child’s best interestS, then get angry when this doesn’t happen.

    It sounds like you asserted your rights. You filed complaints. As Debbie wrote, the best way to protect your interests and minimize future problems is to keep records and create a paper trail by putting things in writing at the time they happen. If you take these steps, it will be very hard for the school to claim innocence later. ~ Pam

  • 29 Wrightslaw 07/07/08 at 12:31 pm

    Susan: I’m not sure I understand your situation and I didn’t see a question. You say you attended an IEP meeting with an advocate. The school district attorney told your advocate that the district was open to summer placements. During the meeting, the IEP team discussed in-district and private summer placements. So far, so good. The attorney gave you paperwork to sign.

    What was in the paperwork? Why did you leave before the meeting was over?

    If you left because the attorney wanted you to sign paperwork, why couldn’t you ask for a copy of the paperwork, then schedule a short meeting in a few days, after you read the paperwork and/or consulted with an attorney?

    Regardless, I doubt the entire IEP team would have to meet again. According to IDEA 2004, parents and schools can modify IEPs by agreement.

    What am I missing? What is your question? ~ Pam

  • 30 David 07/06/08 at 3:48 pm

    Debbie,
    I can only speak from my personal experience. My son’s education did not benefit from our school district attorney’s involvement. My son’s school district’s attorney began attending IEP meetings after the OCR and SDE found that my son was denied a FAPE. We began meeting monthly and eventually had to hire an attorney. Their attorney made an offer to provide current school year services in exchange for comp ed svcs owed, then falsely reported the status to the OCR. The SPED director and staff signed this agreement that committed that they would accurately report this offer to the OCR investigator. Compared to the option of no services at all, this ridicules offer was accepted.
    I do not agree that parents should assume good intent when the district brings an attorney into an IEP meeting.
    In a perfect world, I would have never heard of Pam and Pete Wright and I would then agree that parents need not worry about attending an IEP meeting in which the district has brought in their attorney. In our school district I would not leave a meeting without accurate documentation in the minutes that indicates why I do not feel comfortable meeting.

  • 31 susan 07/06/08 at 1:00 pm

    In my recent dealings with a school district attorney without us having one, the ISD attorney approached our advocate outside of the IEP meeting and said “The district is willing to be VERY open to summer placements for your client”, she must have said this 3 or 4 times. When we walked into the IEP meeting, they presented the in district options as well as a private placement summer option. Because we failed to get this in writing during the IEP and left prior to the end of the IEP meeting, the whole story changes afterwards, in fact the private placement option wasn’t even noted in the minutes of the IEP meeting. The ISD attorney wanted us to sign paperwork and I continued to say, I didn’t feel that I have equal access to the law and wanted to wait until I spoke to an Attorney. They would not grant a recess so we could call an attorney, we left the IEP meeting in process.

  • 32 Debbie 07/05/08 at 10:43 am

    David, If I read your response correctly, you are saying that the school board attorney is there to back the district, even if they are violating the law. There may be times you are right, but my experience has been that the school lawyer can be an advantage to the parents, just as Pete was saying. S/he can help keep everyone focused on the child, rather than on individual personalities. A skilled parent/advocate can use the attorney’s knowledge of the law to bolster their own position. Especially if you have gathered sufficient information from the district, and then use their own data to make your point, the attorney can really facilitate a win-win.

    If the attorney is clearly not taking that position, and I have only seen one time that that happened, then you simply end the meeting and come back another time. The school is frequently not willing to continue to pay large sums for a service that is not being helpful.

  • 33 David 07/03/08 at 6:43 pm

    The school district’s attorney does not attend IEP meetings to represent our children’s needs. The attorney is there to “protect” the school from parents who know their child’s rights to a free and appropriate education. If by chance you misunderstand a portion of IDEA law, the school’s attorney will educate you on what the minimum the school district is required to provide. In the event that the school district exercises a portion of IDEA law that Congress is unaware has been added by the school district, their attorney will look at you with a straight face and say, “that’s right”.
    The attorney who represents my son’s school, helped to educate me on a number of terms that I would have otherwise never known. Other offenses on a discipline record is a code the represents that your child is on an IEP, We are willing to provide Home Based educational services but in a school setting, we need for you to sign this “IEP ADDendum” that waives your child’s right to a free education. We can provide more services through a service plan if not enrolled. They even put it all in writing. No kidding.
    You can learn from them.