Random Thoughts on Special Education Law

For 16 out of the past 18 years, I have attended the annual COPAA Conference which features pre-conference training and an one and one-half day general conference for parents, advocates, professionals and attorneys to attend on various special education topics of interest.   I meet parents, advocates and special education attorneys from around the country and often exchange war stories, strategies, and insight into the practice of special education law. One popular session each year at the annual COPAA conference is a review of important federal decisions in special education.  For many years, both federal district court and circuit court cases were reviewed but since there has been so much litigation in this area of the law, the speaker only focuses on circuit court decisions throughout the country. There are eleven circuit courts of appeal and a District of Columbia  circuit court. These courts review, among other things,  the decisions of federal district courts in special education cases.  Federal district courts, among other things,  review the decisions of administrative law judges or hearing officers when there is an appeal by the parent or school systems.  Most of the appeals in federal courts are brought by parents of children with disabilities. Why?  Because parents lose more often than school systems in special education administrative tribunals.  Overall, school systems win much more often than parents in these hearings and on appeal.

This does not mean that parents should be dissuaded from requesting a due process hearing or consider appealing an adverse decision rendered by a judged after the due process hearing.  I have filed for due process many times on behalf of parents and resolved them favorably for parents in mediation or through informal settlement negotiations. Parents of children with disabilities should keep in mind that due process hearings are often complicated, time consuming and can be expensive to litigate.  To prevail at a due process hearing, parents must retain an expert – someone with a Ph.D. or similar degree – to testify why the school system did not provide their child with a free appropriate public education, provide their child with placement in the least restrictive environment, or a host of other claims under the IDEA.  In my opinion, a parent cannot prevail in a due process hearing, except under exceptional circumstances involving a purely procedural violation of IDEA, without at least one expert.  In my experience, parents do not contemplate the possibility of hiring an expert for a due process hearing unless they consult with a special education attorney first.  A competent special education attorney will advise parents of the necessity of retaining an expert before a due process is filed.  The special education attorney should also advise parents of the pros and cons of filing for a due process hearing and what are the realistic expectation of prevailing.

Although I may take some heat for this comment, I will speak frankly and say some parents overvalue the merits of their case.  I receive calls from parents who immediately state they have a winnable case and the school system has violated their rights. Maybe.  But I cannot assess the merits of the parents’ claims unless I have reviewed all pertinent educational records, communicated with an expert, and completed legal research on the potential claims in the case.  Some parents so strongly believe they should win that they forego legal advice and proceed to a due process without an attorney and expert. I would say they lose 99.9% of the time.  After the parents lose at due process, the possibility of a successful appeal is virtually zero.  Wins at the federal district court and circuit court level are not good even with experienced special education attorneys representing parents.  So my advice is that if you believe the school system has violated your rights under the IDEA, then please consult with an experienced special education attorney. You get one good bite at the apple at a due process hearing. If you do not present a competent and persuasive case with the assistance of an expert and special education attorney at a due process hearing, you are very unlikely to prevail.

You do not have to believe me. Just look at the Georgia Department of Education website for due process decisions rendered in the past five years and you will find how few parents prevailed at a due process hearing without an attorney.   Even with an attorney, the chances of prevailing at a due process hearing is pretty low.  Again, this post is not to discourage parents from filing for a due process hearing but to come into the process with realistic expectations for success.  It takes a minimum of 75 to 100 hours of preparation for an attorney to file for a due process hearing.  It may make take 5-10 days of hearings to complete this process. Please keep in mind that special education attorneys who take on due process hearings work very hard and have the experience, training, and knowledge to litigate such cases.  If you plan to pursue a due process hearing and call me or another special education attorney for legal advice and assistance, please keep what I have posted in mind.