Parent Advocates Have School Board Attorneys On The Run,
So School Board Attorneys Are Fighting Back
by Reed Martin, J.D.

Parent advocacy efforts across the country have become so successful that school boards have no idea what to do. They could put parent advocates out of business by complying with the law, but of course that is the last option they will consider. Most school boards realize they are the biggest lawbreakers in their community in regard to persons with disabilities so, rather than working toward compliance, they want their school board attorney to put in the fix.

Some of the anti-parent efforts have been for states to put out documents that discourage parents (See our recent article on this website "Be Aware Of Procedures And Forms Developed By Your State Department of Education -- They May Be Drafted To Help School Districts and Intentionally Hurt Parents" which details a pathetic effort in Maine to slant statements of the Federal laws in favor of the school districts).

There are enough examples to discuss that there was a national conference last February that was for school board attorneys only. Since it barred attendance by parents, parent attorneys or parent advocates, it seems fair to assume the tactics and strategies that were emphasized were those that would help schools (whether those schools were complying with the law or trying to evade compliance) and would disadvantage parents and parent advocates.

A second common effort reported to us from all across the country occurs when the parent sends in a letter of complaint about something, or even just a letter of inquiry. One recent example was a parent who inquired whether there would be a further meeting since her annual IEP meeting had only one person from the school district in attendance, who dictated a take it or leave it IEP for the next year. The parent understood that a full meeting required a regular education teacher, a special education teacher, anyone one who had performed evaluations, and so forth, and the parent inquired in her letter when the meeting with those personnel would occur.

The response from the school district was a letter from the school board attorney telling the State Education Agency to schedule a Due Process Hearing and to tell the parent the time and date when they were to show up with their attorney. Intimidation? Not in that case, luckily, since that parent knew more about special education law than the school attorney did.

The parent should document their request for a reconvening of the IEP committee and in a separate letter complain that it was an invalid IEP meeting because of the membership. The parent should demand, in writing, Prior Written Notice (see article on this website) for the refusal to reconvene the IEP meeting. If the school district refuses to answer in writing, demand in writing the statement of the refusal to respond in writing and if it is not forthcoming then complain in writing about this second refusal to issue Prior Written Notice.

The parent should also complain in writing that they had not requested a Hearing and that they are owed Prior Written Notice from the school district justifying the reason the school district asked for a Hearing.

Finally, the parent should write and complain on the record about the school district attempt to intimidate and threaten the parent.

The Americans with Disabilities Act, which covers all children eligible under Section 504 and under the IDEA, provides for action against the school district, or state education agency, when they retaliate against parents or their children. 42 U.S.C. 12203 prohibits "interference, coercion, intimidation, threats or retaliation" when a parent seeks to advocate for their disabled child. Since the parent was asking a simple question, would anyone characterize that response by the school district and state education agency as anything other than an attempt at coercion, intimidation, threats and retaliation in an attempt to interfere with the parent's advocacy?

If the parent has to pursue a claim under that statute, they would probably seek money damages as well as other remedies that are clearly available. If the parent's attorney knew what to ask for they would probably sue an individual school official for money damages.

Section 504 has a similar protection under 34 C.F.R. 100.7(e) which could be used in the above fact situation.

The most widespread conspiracy that is spreading across the country is for the school board attorney to attack the parent or parent advocate as "practicing law without a license." That fraudulent claim is made when the parent, or a parent advocate, exercises any of the four rights to advocacy established in the IDEA.

The IDEA at 20 U.S.C. 1414(d)(1)(B)(vi) provides that, at the discretion of the parent, the parent may have at their IEP meeting other individuals who have knowledge or special expertise regarding the child.

20 U.S.C. 1415(h)(1) confers on the parent "the right to be accompanied and advised (at a Due Process Hearing) by counsel and by individuals with special knowledge or training with respect to the problems of children with disabilities."

Further, 34 C.F.R. 300.562(b)(3) recognizes the parents' right to have a "representative of the parent inspect and review the records."

Also. 34 C.F.R. 300.660 allows the parent to have a representative file a state complaint in regard to their child.

None of those four examples above are practicing law. Even though these are covered in the Statute and in the Regulations parents tell us that their school board's attorney has communicated to them that they are breaking the law. This writer's favorite example is a parent who was told at an IEP meeting by the school board attorney that if the parent did not quit quoting the Federal law he would have them thrown in jail.

That attorney needs to read the American Bar Association Code of Ethics. Three of those rules are that it is professional misconduct to engage in dishonesty, fraud, deceit or misrepresentation; that a lawyer shall not knowingly make a false statement of material fact or law to a third person; and that a lawyer should not attempt to take advantage of a person they know to be unrepresented by an attorney.

Parents should get the address of their State Bar Association and consider filing a complaint against an attorney that the parent feels has breached one of those rules. The most obvious breach would be when an attorney, who represents a party with an interest adverse to the parent, gives the parent legal advice in a rather threatening manner.

This writer was at an IEP meeting when the school board attorney threatened my client with being thrown in jail for advocacy. My client had nailed him so completely on the law that the attorney was obviously trying to save face in front of his client. But when I couldn't help laughing at what a fool he was making of himself he backed down.

So familiarize yourself with your State Bar Association's willingness to look into such a complaint.

If your school board attorney frequently attends IEP meetings, ask your school district in writing to tell you in writing how much they are paying for their legal counsel to do that.

Finally, visit the law office of your school board attorney. Is it in compliance with the Americans with Disabilities Act? The ADA, Title III, at 42 U.S.C. 12181(7)(F) requires that "the office of a lawyer" must be accessible. Wouldn't it be fun to discover that the office of your school board attorney is not and report that violation of the law to the appropriate authorities. We have a packet that describes the requirement for accessibility and the fines that might be levied by the Department of Justice if your school board attorney's office violates the ADA.

This information is educational and not intended to be legal advice.

Reed Martin is an attorney with over 34 years experience in special education law and recognized as one of the nation's leading experts. He can be reached through email at connie@reedmartin.com or www.reedmartin.com

5/03
Related Resources:

Due Process Hearing Findings by State

Federal Laws

Section 504 How To Get It To Get What Your Child Need

The information on this website is educational
and not intended to be legal advice.

Our Mission is Lessening Discrimination Against Children with Disabilities
by Providing Parents and School Personnel Tools for Advocacy

Reed Martin is an attorney with over 34 years experience in special education law and
recognized as one of the nation's leading experts.
He can be reached through email at connie@reedmartin.com or www.reedmartin.com
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