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A Saturday Morning Question: Settle or Fight?
by Wyner & Tiffany

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One Saturday morning in the fall of 2005, I was in the office catching up on work when the phone rang. The caller was Denice Morgan from Georgia.

Denice had learned about my firm, Wyner & Tiffany by reading articles on Wrightslaw.com, including an article about the $6.7 million dollar settlement my firm had negotiated in Porter v. Board of Trustees of Manhattan Beach Unified School District, et al.

Denice was thinking of representing her nephew, Jarron Draper, had filed a due process case against Atlanta Public Schools (“APS”) and wanted to discuss her chances of winning. She explained that Jarron's dispute began in June 1998, when he was in 4th grade. Denice believed that APS had misdiagnosted Jarron as mentally retarded, and failed to identify his reading disability or provide appropriate remedial instruction.

Facts in Jarron's Case

As Denice described the facts in Jarron's case, I was perplexed. How could APS have been so mistaken about Jarron’s intellectual abilities?

Why did APS refuse to re-evaluate Jarron for five years when the law requires re-evaluations at least every three years, or more often if needed?

And why did APS continue to implement the same reading programs and interventions when it was clear that Jarron was not making meaningful educational progress?

"Should We Settle or Fight?"

Denice’s immediate question was whether Jarron should accept a modest settlement that APS had offered. This settlement did not provide for Jarron to graduate from high school with a diploma.

Should the family settle or continue to fight?

As I discussed the key legal issues and the evidence needed to prove a denial of FAPE, it was clear that Denice had taken full advantage of the articles and publications available on Wrightslaw. She was well educated about special education law and the procedures and strategies needed to prevail.

At the end of our conversation that Saturday morning, I urged Denice to keep fighting, and that is what she did. Denice represented her nephew Jarron in his special education due process hearing. She prevailed, besting the attorney representing APS.

Appeals

After APS appealed the due process decision to federal court, my firm took over Jarron’s representation.

In U. S. District Court, Jarron prevailed and established a precedent in compensatory education. When Judge Marvin Shoob issued his decision, 20 year-old Jarron was stocking shelves at Target and working as a security guard. Despite his best efforts, he couldn't read, earn a high school diploma, or fulfill his dream of attending college.

Judge Shoob ordered Atlanta Public Schools to pay Jarron Draper's tuition at a private special education school for four years as compensatory education for their persistent failure to educate him.
Read the decision at http://www.wrightslaw.com/law/caselaw/07/GA.jdraper.atlanta.htm

On appeal, the U.S. Court of Appeals for the Eleventh Circuit upheld the District Court's decision. Read the decision at http://www.wrightslaw.com/law/caselaw/08/11th.jdraper.atlanta.htm

Through these years, Jarron persevered. He had the support of his family, and his aunt, Denice, in particular. To learn more about the challenges he faced, read A Lesser Spirit Would Have been Crushed Years Ago: Jarron Draper v. Atlanta Public Schools.

Jarron Graduates from High School

On May 28, 2010, Jarron and his family accomplished their goal. Jarron graduated from The Cottage School and received his high school diploma. This accomplishment took years of hard work, perseverance, courage, sacrifices, and faith on the part of Jarron, Denice, and other family members.

As Jarron's attorneys, my partner Marcy Tiffany and I are proud of the legal precedent established by the Draper case. But we are even prouder that Jarron persevered and earned his diploma. We take pride in his accomplishment, and are grateful that we were able to help Jarron dramatically change his life

Rather than settle for an outcome that did not allow him the opportunity to earn a high school diploma, Jarron's family decided to fight. If Jarron and his family had accepted the settlement offered by APS, would Jarron have graduated from The Cottage School?

Costs of Litigation

We know that even when a family prevails and sets a precedent, years of litigation with your hometown public school district is a life altering experience that has a profound impact on the entire family. Apart from the extraordinary time and expense, special education litigation evokes strong emotions, worry, fear, and stress.

Litigation is not for everyone. Children are better served when they receive appropriate services, supports, programs, and placements sooner, not later. In this sense, Jarron’s case is unusual. Many families simply cannot hang on for years. But in some cases, as in Draper, there is no viable choice but to litigate.

Negotiating in Mediation

In many cases, parents have a choice. In general, it is advisable to prepare seriously for mediation negotiations and to make a good faith effort to settle. In our experience, parents often achieve better results in mediation (e.g., services and placements) than the services and/or placement that a hearing officer might award as a remedy after a due process hearing.

For example, while a school district generally cannot contract with an agency that is not certified by the state, the school district can agree to reimburse parents for the cost of services provided by that agency, even though it is not certified. Thus, while a hearing officer might not order the school district to pay the agency directly or indirectly, in a settlement, the school district can agree to reimburse the parents for these costs.

Preparing a Settlement Agreement

Over the years, we have drafted many settlement agreements that cover a “continuum” of special education disputes. In our article, Demystifying Settlement Agreements and its accompanying Sample Settlement Agreement, we incorporate the provisions that we commonly consider in negotiating and preparing a settlement agreement.

With these provisions in mind, readers may be able to prepare their own settlement document, or compare a document presented by a school district with the provisions incorporated in our Sample Settlement Agreement.

It is critical to recognize that settlement agreements are legally significant documents. Once a claim is released, no further remedy is available, even if the settlement agreement does not lead to the anticipated outcome. For these reasons, we strongly advise a consultation with an experienced attorney before signing a settlement agreement.

Steven Wyner, Esq.

Marcy J.K. Tiffany, Esq.

About the Authors

Steven Wyner and Marcy Tiffany have represented hundreds of children and their families in connection with various special education issues in administrative hearings, federal district court and the Ninth and Eleventh Circuit Court of Appeals.

Steven WynerSteven Wyner of Wyner Law Group, PC. In 1988, Steve began advocating for the special education needs of his oldest son, involving him in extensive legal research and analysis of the Individuals with Disabilities Education Act ("IDEA"), the California Education Code, and federal and state law regulations promulgated under such laws. In 1993 he opened his own law office, focusing on special education law.

Mr. Wyner graduated with honors from King Hall Law School at the University of California, Davis in 1977, after which he clerked on the federal district court. He received an LL.M. from New York University in 1981. Steve has practiced law at various law firms and as a sole practitioner.



Marcy TiffanyMarcy J.K. Tiffany, formerly a partner in the law firm of Wyner & Tiffany, is currently practicing as Tiffany Law Group, P.C.  Ms. Tiffany graduated with honors from UCLA Law School in 1977, after which she clerked for both a federal district court and a federal appeals court judge. She subsequently practiced law with private firms, in various government positions, and as corporate general counsel.

In 1999, she left private practice, in part to focus on her own special needs child who was struggling in middle school. Concerned about the lack of services for special needs students in her community, she formed a support group for parents and ultimately began representing parents of special needs students.


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Created: 06/06/10
Last revised: 05/31/11

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