Outline

I. The Need to Know
A. Personal impact
B. Professional role

II. Presenting the Problem
A. Crisis! Emergency!
B. Parent's response
C. Attorney response

III. Preparing for a Special Education Due Process Hearing
A. Hazards of litigation
B. Analyze issues
C. Evaluate applicable legal principles
D. Evaluate existing evidence and decide whether additional evaluations are needed
E. Chart test data and educational history
F. If tuition assistance case, evaluate child's present progress.
G. Request relief desired from school system.
H. If relief denied, request a due process hearing

Appendices
Ethical considerations

NOTE from WRIGHTSLAW: This Attorney Manual was extensively revised in January 2000 to comply with the reauthorized IDEA-97 and the new federal special education regulations that were published in March, 1999.

For starters, you will need a copy of both of our books, Wrightslaw: Special Education Law, and Wrightslaw: From Emotions to Advocacy, and the CD-ROM that is available with a purchase of the law book.

Wrightslaw: Special Education Law contains the complete IDEA statute, Section 504, FERPA, the special ed regulations, Appendix A, and the major U.S. Supreme Court special education cases, including the author's own Carter case. The CD-ROM includes the law book, the commentary to the special education regulations, and the NCD Back to Civil Rights Report. Pete Wright provides an explanation of the law in the law book with critical tips about pitfalls.

Wrightslaw: From Emotions to Advocacy (FETA) is the primary tactics and strategies advocacy manual for attorneys, advocates and parents. Attorneys and advocates must insist that parents have a copy of each book and carefully follow the advocacy steps in FETA. This includes file organization, using letters as evidence, how to write "SMART IEPs," how to effectively control school meetings and have the school provide the services that the child needs, without costly litigation..

I. The Need to Know

A. PERSONAL IMPACT

1. It is quite possible that you now have or will have a child, grandchild, sibling, nephew, or niece who has a disability. Or, you may have neighbors or close personal friends who are raising a disabled child. Parents of these children experience a range of emotions including guilt, anger, frustration, and helplessness as they struggle to raise this child while also working to increase the odds that their child will become an independent, self-sufficient member of society. The laws regarding services for such children are diverse and complicated. Friends and family will look to you, the attorney, for guidance.

2. When you are consulted about a special needs child, you will probably feel empathy and an immediate desire to help. Your first impulse may be to jump in and write a letter or place a telephone call to the specific school official and by your actions, resolve the problems experienced by these parents and child. Giving in to this impulse may give short-term relief to parents and child, but will usually do little to resolve the real problems. You must realize that special education cases can generate as much emotional intensity as a bitterly contested divorce, and are further complicated by a battle between expert witnesses, as in a medical malpractice case. As an attorney, you must be cautious about assuming that you can actually resolve these complex problems with a minimum of effort.

3. When you understand the principles contained in this outline, you will be able to field preliminary special education questions. You will also know where to look to find more detailed answers to point you and the parents in the proper direction-- to ensure that the child will receive appropriate special education services.

B. PROFESSIONAL ROLE

1. The attorney, whether consulted in the role or capacity of a family member, friend, or attorney, must approach a special ed case as one would approach an equitable distribution divorce that also has elements of a medical malpractice case.

2. The attorney must be aware that he or she will only be involved in the case for a short period of time. When the case is concluded, the matter is closed. Yet the impact of the disability will continue. The parents' struggle to secure and maintain an appropriate level of special education services will continue, often for many years. The parents must learn to deal effectively with the school system-- and should be able to "break bread" with the school staff after the present legal issue is concluded.

3. In special education matters, it is absolutely crucial that the parents develop a clear understanding about the nature of the disability, the laws, and how to measure educational benefit after a child is in a special education program.

4. To effectively represent these clients, the attorney must also understand the nature of the disability, the special education laws, and how educational benefit can be measured. In many cases, the most perplexing disabilities are not the easily observed ones -- being deaf or blind, having severe orthopedic impairments, cerebral palsy, or Down Syndrome. The "hidden handicaps" such as learning disabilities and attention deficit disorder (ADD) are related to neurological impairments. These educational and language learning disabilities can be the most difficult to identify and remediate.

© Wrightslaw 1999-2005