Special Education Law with Attorney Sullivan

Blog 16

 

This week was interesting to me. Our presenter for this week’s special education lessons for CT’s first cohort of the CT Aspiring Leadership Academy for Special Education was an interesting senior law partner named Christine Sullivan. Attorney Sullivan has been practicing law for 33 years. She also has a daughter with Down syndrome. Events eventually led her to return to school and get a Ph.D. in special education. She says her Ph.D. was a huge help. It taught her a lot about special education research and why we do the things we do in the special education world.

Attorney Sullivan also loves the idea of what the state department of education and UConn are doing with this leadership program for special educators that I am in. The special education field is poised for change, according to Attorney Sullivan. In addition, the special education field is getting harder and more complicated. The legal part of special education is becoming more critical than ever.

I have a confession to make. The younger Dan Blanchard thought many times about someday attending law school and becoming an educational lawyer later in life. However, my sister, a district attorney in the Bronx, NY, has repeatedly told me that it wouldn’t make financial sense. My sister told me I wouldn’t be able to pay back the student loans from just a few years of working as an educational attorney later in my life. Furthermore, the personality test I took earlier in the leadership program, where I scored high in the orange category, confirmed that I like different things. Still, I also like the bigger picture and not all the tiny details that one must get right if they’re going to be a lawyer. So, I’m not so sure that I’m built to be a lawyer. I guess I’ll just stick to being an educator, author, and speaker.

So, back to special education law. What is the role of an attorney in special education? Well, according to Attorney Sullivan, it’s vast. Sometimes a family will hire an attorney if they think the school is not listening to them. Sometimes an advocate will hire an attorney to protect their client’s educational rights.

If the school district missteps, they will bring in their attorney to correct the course. Sometimes, it’s something as simple as the school or the parent having a question they want answered. So they call the attorney.

Sometimes, the state department of education files a complaint against a school, or the Office of Civil Rights will get involved in a FERPA, ADA, or 504 cases. In these instances, schools rely on their attorneys to help resolve the issue. These types of cases can drag on for a long time.

There are times when educational attorneys do professional developments for the school staff, especially when things are changing like IEPs or 504 plans. With the state of Connecticut’s new initiative to streamline the IEPs, there should be more training or professional development for the school educators.

Due process hearings are pretty formal and involve the school’s attorneys.

Some lesser-known issues involving attorneys are employee issues, employee management, staffing issues, and contractual issues. Attorneys are sometimes also involved in services that involve out-of-district placement for students, to mention just a few.

Attorneys will write agreements for pending claims. They are usually involved in child-find issues. Schools need consent for testing that could involve attorneys, as well as transitional assessments and services that could include them. And let’s not forget student or family accusations of teacher wrong-doing.

This week, I was reminded that parents, students, and families are often misinformed about what suing a school does. When a parent sues a school, the family receives no monetary reward. A successful parent lawsuit of a school only remedies the educational deficiency. It results in adding services to the student’s educational plan.

Also, I should have already known this, but I hadn’t thought much about it. Attorney Sullivan informed us that she belonged to an association for special education attorneys. I thought it was pretty cool that they had their own association. But why wouldn’t they have their own association! It only makes sense for them to have their own association and journals and literature. Gathered from her association, Attorney Sullivan shared an interesting article on a child custody case she got from the Council of School Attorneys.

It was a heated child custody case. The parents had teachers called as witnesses to testify to what they had witnessed and how the school was handling things. The district’s attorneys guided the teachers and administrators through that contentious hearing.

I remember a case we had in my school district about 25 years ago when our school district was sued for a kid graduating high school who didn’t know how to read. A bunch of our teachers got called into court, and our lawyers were right there by their side, guiding them and protecting them.

Attorneys can be scary. But, we were reminded that school attorneys are not to be feared by educators. School attorneys are the school staff’s friends. It would help the teachers, administrators, and the school district if they collaborated more with the attorneys and were more proactive in cutting off problems when they were still small.

Most lawsuits come from a lack of communication between the parties or a miscommunication between the parties. These failures in communication are much easier to deal with when they are still small. We should all be thinking about how to use lawyers proactively.

So, let’s now try to grasp special education law’s big picture. The big federal law we often work off is the Individuals with Disabilities Education Act (IDEA). However, there are a plethora of state education laws that flow from IDEA. States are free to do things according to their unique ways or even more than IDEA mandates. What states cannot do, though, is do less than IDEA mandates.

Further down the river, after the state laws come regulations. Regulations are the guts of the laws. Regulations are the much-needed interpretations of the law. They explain things in common-sense language to clarify some confusion on what exactly the law is saying.

Next comes the guidance documents. The state department of education and other educational organizations and agencies put out these guidance documents. They are not laws, but they are essential. You see, laws can’t address every issue that could possibly come up. So the guidance documents help in these confusing situations. School personnel can also contact educational agencies and ask them a question or even request the full guidance document.

So, what are the big areas in special education where we would need these federal laws, state laws, regulations, guidance documents, and legal help? The PPT meetings and the IEP development are two big ones in the special education world.

Schools must remember that parents are equal team members at the Planning and Placement Team (PPT) meetings. Schools serve themselves well when they remember how important good communication is with parents.

There is something I haven’t been doing but learned this week that I should be doing. My communication with parents would improve if I sent home teacher reports and the proposed student goals and objectives before the PPT meeting. This method increases communication and rids us of any surprises at the PPT. It also speeds up the PPT meeting because we no longer have to spend much time reviewing teacher reports and proposed goals.

If parents are distraught, their attorneys can be brutal. Parent attorneys will yell at and demean the educational team in the PPT meeting. This is where it is vital to have a good special education leader or even general education leader in the room who can remain calm when being yelled at. An excellent educational leader will deescalate the situation and not allow the parents’ lawyer to demean the teachers in the meeting.

Attorney Sullivan has shut down meetings or, in the case of the zoom world, even muted screaming parent attorneys. Someone in the room must calm things down and keep the discussion from becoming combative and abusive. None of that poor behavior truly serves the student.

When schools know the PPT will be combative, bringing in a neutral PPT facilitator could be helpful to all parties. A neutral PPT facilitator could help the PPT meeting run smoothly and productively. Furthermore, school personnel could participate in PPT facilitator professional development, so they have some of the skills that neutral PPT facilitators have.

Another area that parent attorneys love to pick on teachers is the development of the Individual Education Plan (IEP). The IEP is low-hanging fruit for attorneys. There are a lot of areas where an attorney can find what seems like a very minor issue and blow it up to a monster-size problem.

In short, nothing is more important than having the time to properly develop the IEP. The IEP is a legal document in which everything else flows. It contains the present level of functioning and the matching goals and objectives. An educational goal with only one objective is inappropriate. A parent attorney will take a teacher to the mat over that. A parent attorney will also attack the goals and objectives if they don’t appear to be congruent with the student’s present level of performance and needs.

Lawyers will also attack the evaluation of the goals in objectives inside the IEP. While it is appropriate to list teacher observation as one method of evaluating student performance, there must be documentary evidence of evaluation.

The same goes for the progress notes, or special education progress reports that special education case managers must complete every quarter. Kept and maintained data for progress notes can be problematic in some cases. And the day-to-day data is frequently missing from the progress notes and is an easy target for parent lawyers to make the teacher and the school look inept.

More professional development is needed for special education teachers in IEP development. Hopefully, with the new state IEP coming out next fall in Connecticut, teachers will get much-needed and sustained professional development to proficiently develop IEPs in the next IEP era of special education.

A quick side note here. Some years back, Brendan Sharkey, the Speaker of the House in Connecticut, assigned me a role as an advisory to the CT State Department of Education to streamline IEPs for parents, making them more accessible to parents. Unfortunately, these meetings never happened. Years later, I’m now a part of the new streamlining of IEPs in the education system.

Attorney Sullivan also shared that schools and staff can save themselves a lot of legal problems by really getting to know the student and being able to answer how what they are doing is meaningful. Educators need to understand and be able to articulate what they’re doing. Why they’re doing it. And what it will lead to.

Often a parent’s first question is, “Why isn’t my kid making progress?” or “Why does my kid have the same goals from three years ago?” Teachers and administrators need to be able to answer these questions and have a plan to remedy them. If not, the parents’ attorney can get brutal here.

Remember, most disagreements come from a communication breakdown. It helps if teachers speak with parents before the PPT meeting, so there are no surprises. It also helps if staff meet before the PPT to plan for it. A prior meeting by the educational team doesn’t mean that they are predetermining the educational plan for the student. It only means they are planning for a successful PPT meeting where the parents will help make the final educational decisions in the PPT meeting.

I must admit, I haven’t often done these pre-meetings before the PPT meeting to ensure that no surprises pop up during the PPT meeting that could lead to problems. I guess this is another thing I’m learning about becoming a better special education teacher and a special education leader. Pre-meetings and good, ongoing communication is a good things.