Today’s article is targeted to attorneys who represent Local Education Agencies (“LEAs”). It’s particularly targeted to those attorneys who behave as though what is in their clients’ best interests are somehow at odds with the best interests of the special education students their clients are being paid to educate and that special education is an “us versus them” proposition.
First I want to acknowledge that life is hard for everyone. We’re all facing our own challenges. Life is unique for every single person who walks this Earth and the way it is hard for one person is different from the way it hard for another. We all owe each other compassion and understanding.
But, no one – and I mean No One – gets into Heaven by depriving children with disabilities the services they desperately need. I don’t care what your baggage is. Even if you go to church every Sunday and beg forgiveness, if you turn around and walk into an IEP meeting or due process hearing the next day doing everything you can to screw over a handicapped child and his family, you’re going to burn, burn, burn in Hell. Forgiveness can only be given when your prayers for it are legitimate and your repentance is true. The Almighty knows when you’re being insincere, even if the average hearing officer doesn’t.
It’s not exactly a secret that almost every single law firm that represents public schools does so for profit. And, they get paid win or lose when cases go to hearing. School districts are not represented by law firms on contingency. They are represented under expensive annual contracts with additional hourly rates for time put in above and beyond what the annual contract includes. As much as school districts may desire to avoid litigation, the harsh reality is that their law firms make more money when cases go bad and litigation rears its ugly head. For that reason, many attorneys who represent LEAs have reputations as “billing machines,” stirring the pot and causing problems so they can bill for additional time to get their clients back out of hot water. And, most special education directors are so clueless regarding their legal obligations that they don’t even realize they’re being taken for a ride.
KPS4Parents represented two brothers with autism a few years ago, both of whom had been placed at the same non-public school (“NPS”) by their LEA. The NPS was a joke. It was on the verge of being shut down by the California Department of Education (“CDE”) for not having proper special education teaching staff and otherwise being a hokey outfit. Both the boys, although three years apart in age and nothing alike in terms of how each of them manifested their autism, were receiving the same curriculum. Neither of their IEPs were actually being followed. They were being warehoused all day, as were all the other students at the school.
KPS4Parents was hired by the parents and I was assigned as the advocate on both their cases. In the course of working with the District to straighten things out, I requested on the parents’ behalf additional assessments, copies of their records, and amendments to their IEPs based on what little data we had to work off of at the time. The District had proposed some new assessments prior to my requests and those assessments were pending at the time that my requests for additional assessments were made.
Long story short, the District blew the 60-day timeline for completing the assessments it had initially proposed, it blew the 15-day timeline for providing assessment plans for the assessments I’d requested on their behalf, and it failed to provide their student records within 5 days, as required by California law. The latter issue is legally interesting, and relevant to today’s article, because it was the District’s lawyer who caused the provision of the records to take over a month.
While the assessments being delayed were potentially more substantively harmful than the delay in providing the student records as requested, the timeline delays with respect to the assessments were caused by people within the District not having their act together. No one was trying to do harm or screw around. That isn’t to say that the violations didn’t result in substantive harm – they did. But, the substantive harm from the assessment timeline violations were the fault of the District, not it’s attorney.
The records were delayed by the District’s attorney who wrote letters arguing that the authorizations signed by the parents giving KPS4Parents permission to request records on their behalf were suddenly invalid. The standard KPS4Parents authorization can only be terminated in writing and has no expiration date. It saves us the trouble of having to re-do them from one school year to the next when cases span across more than one school year. Neither parent had submitted a written withdrawal of authorization and both parents were livid when they got the letter from the District’s lawyer indicating that the District was not going to give me their sons’ records as requested.
This went back and forth for over a month before I finally got the records. By that time, the other timeline violations had also occurred. It had become apparent that the attorney representing the District had the special education director wrapped around her little finger and was manipulating the relationship for her own financial gain.
I filed compliance complaints alleging failures to abide by the three different timelines on behalf of both boys. I offered to enter into a local resolution with the District if it would promise to create policies and procedures that would prevent timeline violations from occurring again in the future. The CDE investigator informed me that the District, through their attorney, declined my offer of local resolution and had chosen, instead, to let the investigations proceed. In the end, CDE sustained six – count ’em, SIX – violations of the law against the District and ordered it to clean up its act.
Shortly thereafter, I sent a Public Records Act (“PRA”) request to the district’s governing board asking for copies of the attorney’s bill for the time she put in on the boys’ cases. I wanted to know how much the taxpaying public had paid for this woman to get the District cited for six violations of the law. Not counting her annual contract fee of $50,000, the District paid her about $600 to get it cited six times over – that’s about $100 per violation. That may not seem like a lot of money in the grand scheme of things, but it was taxpayer dollars that were spent on this. And this was just for these two boys.
And, what did that money buy the District? A big, fat black eye.
The attorney was sacked before the end of the school year. The special education director was asked to leave shortly thereafter, once it had become apparent that she had either gone along with the attorney’s misdeeds or was too clueless to realize that she had been played. Frankly, the two of them had been up to no good for years. I think this situation was just the straw that finally broke the camel’s back.
My point in retelling this story is to illustrate what self-serving representation causes. It causes harm. Not just black eyes to school districts, but substantive harm to children with special needs.
The only legitimate outcome that appropriate representation should pursue is the assurance that the LEA being represented is abiding by the law and meeting its obligations. There is no “us versus them” when LEAs are doing what they are supposed to be doing. What is in the best interest of the LEA is its fulfillment of its mandated duties.
LEAs exist for only one reason – to educate children. This includes children with special needs. And, LEAs are not expected to reinvent the wheel. Congress created the IDEA to give them a framework by which the education of children with special needs can be provided. It is the obligation of attorneys representing LEAs to help the LEAs comply with these regulations and achieve appropriate student outcomes, not try to figure out ways for LEAs to weasel out of their obligations or otherwise exploit bad situations for the attorneys’ financial gain (much less at taxpayer expense).
If you are looking at a dispute from the perspective that your clients’ best interests are somehow something other than their students’ best interests, something with your way of thinking is terribly, terribly wrong. What is in your clients’ best interest is to render a FAPE. That’s what the law requires them to do. The delivery of appropriate educations to their students is the reason why your clients exist and the only reason they have taxpayer dollars with which to pay you.
Properly representing your LEA clients should involve you making sure that their students eligible for special education and 504 Plans are getting the FAPEs to which they are entitled. That’s legitimately protecting your client from getting into trouble. You shouldn’t be doing anything other than that.
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