March 4

Working with an Attorney – the beginning

The first thing your attorney should give you when you meet is a retainer agreement. Read it. If you have questions, ask. Among other things, agreement should talk about your duties as a client, the attorney’s duty to communicate, to retain your records and explain the work the lawyer is going to do for you. The contract should spell out terms of payment and conditions under which the agreement can be terminated by either party. Without this written agreement, an attorney cannot tell anyone else, like a school district or a doctor, that they represent you. The attorney should also give you a document called either a “release” or an “authorization” allowing them to speak with certain people, like school personnel, doctors or related service providers. They will present that document before entering into a conversation. These formalities protect your interests, your privacy and your rights.

November 16

Learning the Lingo: Is a Due Process or Impartial Hearing Proceeding a Law Suit?

Short answer: no. It isn’t. Some statutes, and the IDEA is one of them, set forth what the government wants to have done and establishes an agency that specializes in the issue involved. Lawyers call these departments “administrative agencies.” Administrative proceedings are not lawsuits. Lawyers call them “quasi-judicial” (in other words, kind of, sort of).

The Federal agency responsible for oversight of the IDEA is the United States Department of Education Office of Special Education and Rehabilitative Services. However, the IDEA is a grant of funds to the states and requires that states enact rules implementing the IDEA. This is done through the education departments of the respective states, whose rules are reviewed and approved by the U.S. Department of Education. State agencies are empowered to resolve disputes in “administrative proceedings.” The due process or impartial hearing proceeding is called an “administrative proceeding.”

Some states, like New York, have a two-tiered hearing system. In New York, the first hearing is before an “impartial hearing officer.” The impartial hearing officer can administer oaths and issue subpoenas requiring witnesses to appear at the hearing. Their decision is binding unless one party appeals. In New York, appeal can be taken to the State Review Officer. Beyond that, appeal can be taken to either the state or federal court. State courts and federal courts exist because of the state and federal constitutions, respectively. In state or federal court, cases are heard and decided by judges, not hearing officers and different rules and procedures apply in state and federal court that do not apply in the administrative proceeding.

October 5

It’s about empowering parents

Special education law is the one area where I have found scholarly articles to be attention grabbers. Here is an excerpt from my article, “Considering the Individualized Education Program: A Call for Applying Contract Theory to an Essential Legal Document” that appeared in the Winter, 2013 issue of the C.U.N.Y. Law Review:
The IDEA has revolutionized the way children with disabilities are educated in the United States. A unique statutory scheme requiring public schools to open their doors to children with disabilities, the IDEA rejected a one-size-fits-all concept of education and armed families with an unprecedented right to an education. Public schools would be required to figure out how to educate students with a myriad of differences through classroom accommodations, services and supports in the “least restrictive environment.” The Act seeks to empower the weakest parties in the administrative process: children with disabilities and their parents. The primacy of this value is explicit in the precatory section of the current IDEA, which states that “[a]lmost 30 years of research and experience ha[ve] demonstrated that the education of children with disabilities can be made more effective by . . . strengthening the role and responsibilities of parents and ensuring that families of such children have meaningful opportunities to participate in the education of their children at school and at home.” The IDEA has had massive, positive social impact. Opening schools to people of various abilities has profoundly impacted society, making disability “a normal part of the broad range of human experience and personality.” People who would have been hidden away from society in the 1970s are seen in schools, the economic workforce, and even in popular culture.
For those parents who have had to advocate for their children, however, the process often remains daunting, overwhelming and exhausting. IEP formulation meetings are often fraught with tension. Parents are faced with the challenge of absorbing a tremendous amount of information; they need to learn about their children’s disability, educational methodology, and the law. The balance of resources and information greatly favors school administrators over parents. IEP formulation meetings often involve a lone parent facing a table of teachers and administrators in a meeting that is supposed to be collaborative, but is more often intimidating and tense. My own experience advocating for my child from 2010 to 2012 is reflective of this opinion. I spent several years advocating in a public school system on behalf of a child who is gifted but dogged by non-visible, brain-based disabilities. It was unpleasant, aggravating and tiring for everyone involved. It fell to me to tell the school district how to work with my child. I also met individually with teachers to discuss the disabilities at issue. My impression was that they had no understanding whatsoever of the disabilities identified in the IEP which, being extremely charitable, I will assume they read—and this was in a small, affluent school district. I wish I could say that my experience was unique, but it wasn’t—and isn’t. In the end, faults in the system fortuitously led to a better situation for my child when the district permitted her to leave early to attend college. I do hope that my efforts at that particular school have led to positive improvements to the benefit of all of the students there. I must also refer to the acknowledgment of similar experience in the works of David M. Engel, supra note 4, at 187–89, and Martin A. Kotler, supra note 4, both of which were written over twenty years ago.