“They’ve Lawyered Up, Sipowicz”

Published on July 24, 2009 by Jennifer Laviano

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Parents of children with special education needs are entitled to hire legal counsel to represent them in Due Process Hearings with their school district, and the IDEA even contains a “fee-shifting” provision, which might entitle a parent to reimbursement of reasonable attorneys’ fees if they prevail in litigation.  Whether to hire a special education attorney to represent you in a dispute with your school district is a very difficult decision to make, and there may be times when it makes more sense to hire a non-attorney special education advocate.

If you have made the decision to have an attorney represent your child with disabilities, you may be asking yourself:  “what now?”

When I talk to parents in my special education law office in Connecticut, they will often ask me what to expect once they’ve hired me.  I happen to have a “welcome packet” that I send out to new clients with a lot of information in it about the process, but here are some tips that I think are useful to most parents once they have “lawyered up”:

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  • Listen to your lawyer.  If you have retained a special education lawyer, you should ask him or her for their particular advice as to what your next steps should be.  Some attorneys want parents to continue to be the primary source of communication with their school districts, and others want all discussions regarding the student in question to go through counsel.  Some lawyers will attend IEP meetings with you, others will not.  Every attorney has a different style.  If you ask 10 lawyers the same question, studies have shown you will get exactly 14.31 answers.  Okay, I made that up, but you get the point.
  • Be cautious about ongoing discussions with your school team.  If your child is continuing to attend the public schools while you are negotiating or litigating your case against your district, your ongoing relationship with the staff is going to change.  At best, it will be tense or awkward, at worst, angry and hostile.  For both sides, every communication now has a potential legal ramification.  I would consider limiting verbal discussions with the school district to those necessary to support your child’s in-district placement, and documenting those.  As to communications in writing, send NOTHING in writing to your school without prior approval of your special education lawyer as to the types of things that should and shouldn’t be sent.
  • Don’t read too much into reports of other parents’ experiences in litigation.  Look, there wouldn’t be an IDEA if it weren’t for parents of children with disabilities banding together and lobbying Congress to enact legislation which mandates special education instruction.  Most of the best things that have happened in the children’s disability rights movement can be attributed to parents who wouldn’t take “no” for an answer.  I have the greatest respect for parents actively involved in parent networking.  That being said, it can be frustrating, and dangerous, to continue having detailed discussions with other parents in your district, or in neighboring towns.   There can be dozens of differences between your child’s case and another, and it is of little use to analyze how other cases were resolved.
  • Generally do not discuss your case with anyone but your spouse and your lawyer.  Especially in small towns, people talk, and that talk can get back to the Special Education Director.  This is the last thing you want to have happen in the middle of a legal dispute if what you’ve said could harm your case.  In addition, there are, sadly, some parents of children with special education needs who are quite “chummy” with the school district staff.  You’ve heard of kids who are “teacher’s pets”?  Well, there are some parents out there who are “special education administrators’ pets.”  They think kissing up to the director will be advantageous to their own child’s programming, and often they’re right.  The problem is, you may not know you can’t trust them until it’s too late.
  • Be careful about what you say to and around your child. Sometimes we adults get so caught up in how to handle the matter, that we forget that the student may very well be aware of the dispute.  I can’t tell you how many times I have been brought into a case where the parents have been exploring private placements without alerting the school district to it until they’ve looked at all the options, only to have the child himself tell the school staff “I went to go look at a new school today where I might go next year.”  This is a problem.  It gives the school the impression that you’ve already made up your mind about the next year.  Plus, every negative report card or event that occurs from then on will be blamed on your child knowing he was going to a private school the next year:  “ever since he heard he might be going to a new school he just doesn’t seem to care.”  If you can, have a plan in place for what your child will know about the disagreement, and how to address it with the school.

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If you decide to hire a special education attorney, remember:  you can easily and unwittingly jeopardize your legal case if you’re not careful.

School districts already have so many advantages over parents when they are in litigation over special education cases.  Don’t give them more ammunition!

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