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.