The Special Ed Advocate Newsletter
November 13, 1998

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Issue - 17

ISSN: 1538-3202

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The Special Ed Advocate is a free online newsletter about special education legal issues, cases, tactics and strategy, educational methods that work, and Internet links.

We publish this newsletter occasionally, when time permits. Back issues of The Special Ed Advocate are archived at our web site -


As a subscriber to The Special Ed Advocate, you will receive announcements and "alerts" about new cases and other events. Contact, copyright, and subscription information can be found at the end of this newsletter.

(1) DOE v. WITHERS in LAW LIBRARY: $15,000 Jury Verdict Against Teacher Who Refused to Follow Child’s IEP

(2) GUEST ATTORNEY BILL BYRNE: Creative Ways to Win Tough Cases

(3) SPECIAL ED ATTORNEY PAUL ERICKSON Reflects on the High Cost of Doing What’s Right - and Failing to Do What’s Right . . .

(4) U. S. SUPREME COURT UPDATE: Garett & Family at Oral Argument


(1) DOE v. WITHERS in LAW LIBRARY: $15,000 Jury Verdict Against Teacher Who Refused to Follow Child’s IEP

The landmark case of Doe v. Withers stood for two significant legal propositions: that schools and teachers can be accountable for refusing to follow the child’s IEP and that schools and teachers can be sued for dollar damages in jury trials.

Read the Complaint in Doe v. Withers

Read the Jury Order in Doe v. Withers

(2) GUEST ATTORNEY BILL BYRNE: Creative Ways to Win Tough Cases

Bill Byrne was one of the attorneys in the landmark case, Doe v. Withers that we added to the Law Library. Mr. Byrne discusses two recent cases and shares some ideas about creative ways to win cases.

Recently, Bill Byrne represented a a profoundly deaf high school student who ran afoul of an age rule that prevented him from playing inter-scholastic sports in J. R. Traylor v Board of Education. The young man fell a year behind in school because of his hearing impairment.

Mr. Byrne argued that under the West Virginia Human Rights Act, this deaf high school student was entitled to a "reasonable accommodation" and an individualized determination as to whether the waiver of a rule prohibiting 19 year olds from playing high school basketball violated the purpose behind the rule.

"Lots of federal cases against us but we used the state statute successfully. Our state Supreme Court let stand a lower court ruling granting us an injunction. Also able to settle attorney fee issue."

In Board of Education vs. Chris A. et. al., "A boy with ADHD brought a knife to basketball practice to impress his friends. The school expelled him under the "Safe Schools Act." The school held a "manifestation determination" and concluded that his action was in no way was connected to his disability."

"We filed for due process. After four days of hearings, we won. The school appealed to federal court. Later, the school district settled in mediation and agreed to abide by the due process decision. They also paid $30,000 in fees and expenses."

(3) SPECIAL ED ATTORNEY PAUL ERICKSON Reflects on the High Cost of Doing What’s Right - and Failing to Do What’s Right . . .

Paul Erickson, special education attorney from North Carolina, writes about the high cost of NOT doing what’s right.

"My client asked why is it that people can only see the financial cost of doing what is right? Why can’t they see the overwhelming costs associated with refusing to do what is right?"

This mother was referring to the average cost of a Lovaas program (approximately $25,000 a year for three years, for $75,000).

This is the cost of doing what is right.

The child completed the Lovaas program and was "exited out of special education" before entering kindergarten. He attended kindergarten, was promoted, and now attends a regular first grade class in his neighborhood school where he is making above average grades.

Read Paul Erickson’s letter about "The Cost of Doing What’s Right"

(4) U. S. SUPREME COURT UPDATE: Garett & Family at Oral Argument

In the November 5, 1998 issue of The Special Ed Advocate, we included an article about Oral Argument in the Cedar Rapids v. Garret F. case.

A few days later, we received a message from Garett’s aunt:

I just read your newsletter article about Cedar Rapids School District v. Garret F. I am Garret's aunt and was fortunate enough to sit in on the Supreme Court hearing along with Garret and his mom, my sister. I think you summed up quite well the Justices' frustration with the school district's position.

Justice O'Conner expressed concerns about our position of adhering to the previous definition of the bright line for "medical services"- physician-assisted v. non-physician services. She asked where the line should be drawn. She used the example of a child who did need 1:1 continuous nursing services and an ambulance parked outside the school on standby (neither a nurse or ambulance attendants are physicians.)

On behalf of Garett and his family, I would like to thank you and your organization for your advocacy, along with the 13 other groups, including the American Academy of Pediatrics, and the national School Nurses Association, who filed Amicus Briefs on behalf on Garett with the Supreme Court.

We will advise subscribers to The Special Ed Advocate when the Court issues their decision.

The Eight Circuit’s decision on Garett’s behalf is available in our Law Library:



We have added more books to the Advocate’s Bookstore. If you need to learn about mediation and negotiation, visit the Negotiation Shelves and Law Shelves of the Bookstore. Here are two books that will help parents who are struggling to survive and make progress in school meetings:

"Getting to Yes: Negotiating Agreement without Giving In" by Roger Fisher and William Ury. We recommended "Getting to Yes" to parents as an excellent book about negotiating and resolving conflict.

Based on research from the Harvard Negotiation Project, "Getting to Yes" will teach you how to negotiate "win-win" solutions to disputes. "Getting to Yes" provides concise, step-by-step, strategies that will help you develop fair agreements in all kinds of conflict.

"Getting It Done: How to Lead When You're Not in Charge" by Roger Fisher and Alan Sharp (1998). "Getting It Done" explains why collaborating with others is so difficult. People have minds of their own - and most decisions are based on emotions, not logic.

In "Getting It Done," you'll learn how one person can help the group formulate a clear vision of results, suggest a course of action, and learn from past experiences. You’ll also learn how to ask questions, offer ideas, and make suggestions that will be heard - how to influence the actions of others by your own behavior.

For more information about "Getting to Yes" and "Getting It Done," go to


We added several books to the Law Section of the Bookstore. Parent advocates need to learn how to do legal research:

"Legal Research: How to Find and Understand the Law" by Stephen Elias & Susan Levinkind. (Nolo Press)

"Legal Research" is a step-by-step guide - you’ll learn what's in the law library and how to use it; how to find statutes, regulations & cases; how to explore online resources; practice legal skills in the library; and how to write a legal memorandum.

For more information, go to



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