the Special Education Child:
Manual for the Attorney and Lay Advocate
Peter W. D. Wright, Esq.
I. The Need to Know
A. Personal impact
B. Professional role
II. Presenting the
A. Crisis! Emergency!
B. Parent's response
C. Attorney response
III. Preparing for
a Special Education Due Process Hearing
A. Hazards of litigation
B. Analyze issues
C. Evaluate applicable legal principles
existing evidence and decide whether
additional evaluations are needed
E. Chart test data and educational history
F. If tuition assistance case, evaluate
child's present progress.
G. Request relief desired from school system.
H. If relief denied, request a due process
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.
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.
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..
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
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.
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
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
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
ii. The child is not benefiting from the program and doesn't
really need it anyway;
iii. The school system has had a financial shortfall and
certain staff have resigned or have not had their contracts renewed,
and besides, the child is better off not being in the special
ed program now;
iv. The services the child needs are simply not available
at the school and parents need to recognize the school's limitations;
v. The new triennial evaluations have disclosed that the
true problems are that the youngster is not motivated, that the
real problems lie within the "dysfunctional" family, which is
composed of a single parent or a couple with marital problems,
which according to the school system's "experts" is not an educational
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.
C. Attorney's Response
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
d. As you review the file, assume, for discussion, that parents will not be permitted to testify. Given that, how will you be able to prove the case? What outside evaluations do you have that will validate the claims? How can you use the school systems own test data to prove that the child has fallen further and further behind the peer group? How can you use their files to prove that the school did not comply with or implement the IEP? What kind of a paper trail is in the file? Look carefully at the case from that perspective, that parents will be unable to testify, even though they will.
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
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
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.
b. In addition to the Internet, the private sector professional who is involved with the child (often
a psychologist or educational diagnostician) is your best resource to help educate you in this area.
for a Special Education Due Process Hearing
Hazards of Litigation
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!)
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.
Evaluate Applicable Legal Principles
1. Obtain a copy of your State Regulations and cross reference them with IDEA and Federal Regulations in Wrightslaw: Special Education Law, 2nd, Ed.
with Disabilities Education Act (IDEA) 20 U.S.C. 1400-1485 (This
is available on our website at https://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
c. Download the U. S. Department of Education's Analysis and Commentary issued on August 14, 2006 about the IDEA 2004 Regulations at:
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
2. Review special
Education Law and Litigation Treatise by Mark C.Weber, available
from LRP Publications (800) 341-7874
Special Education Law is available from the Wrightslaw
store and from other online bookstores including Amazon.com
c. The Topical
Index of Individuals with Disabilities Education Law Report (IDELR),
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:
U.S. Supreme Court cases through June 26, 2006 (Arlington v. Murphy) are in our Wrightslaw: Special Education Law book. The
first two cases below triggered the passage of Public Law 94-142, now
known as IDEA.
Pennsylvania Association for Retarded Children v. Commonwealth
of Pennsylvania (P.A.R.C.) v. Commonwealth of Pennsylvania, 334
F. Supp. 1257 (E.D. Pa. 1971)
Mills v. Board of
Education, 348 F. Supp. 866 (D. D.C. 1972)
To gain an overview of special education law and history and learn more about the PARC and Mills cases, in addition to the initial chapters in our law book, you will want to read Pete Wright's National Council on Disability monograph "Individuals with Disabilities Education Act Burden of Proof: On Parents or Schools? which was filed with the U. S. Supreme Court in the Schaffer case.
The URL is: http://www.ncd.gov/newsroom/publications/2005/pdf/burdenofproof.pdf