ADVOCACY AS AN EFFECTIVE OPTION:
Practical and Ethical Strategies to Avoid Litigation
Linda J. Heller, Esq.
Special Education Advocate
Merion, PA
I. NEGOTIATING THE SPECIAL EDUCATION MAZE
A. Common Acronyms Used in Special Education – Do You
Know What They Mean? (Fill in the blanks)
ABA –
ADA –
ADD –
ADHD –
APE –
APS –
AT –
APS –
ARC –
AS –
BEC –
CASSP –
CBA –
CER –
CFR –
COPAA –
CP –
CST –
DTT –
ED –
EI –
EISSA –
ELC–PA –
EMR –
ER –
ES –
ESL –
ESY –
FAPE –
FBA –
FD –
FEOG –
FERPA –
IDEA –
IEP –
IQ –
ISSP –
IST –
IU –
LD –
LEA –
LEP –
LRE –
MA –
MDE –
MDT –
MH/MR –
MOU –
MR –
NORA –
NOREP –
ODR –
OHI –
OSEP –
OT –
PAGE –
PASA –
PATTAN –
PDD –
PDD-NOS –
PDE –
PIN –
PSSA –
PT –
RTF –
SDI –
SEA –
SED –
SETT –
SID –
S/L –
SLD –
TEACCH –
TMR –
TSS –
COMMENT I:
The special education system is very complicated and confusing, even for those of
us who are immersed in it every day. Imagine how it must seem for parents**,
particularly those who are new to the process. The process begins with a referral
from either the parents or the school. At the beginning, an MDT is convened, an
Evaluation is conducted and eventually an ER is issued. Are you with me so far?
**As used throughout this article, the term “parent” is intended to include the
term “guardian” as well.
After the parents receive the ER, if it has been determined that special education
services are necessary and that more information is needed, parents are asked to
sign a Permission to Evaluate. An IEP meeting is then scheduled to go over the
results of the evaluation, and at that meeting the specific recommendations in the
ER are followed to create the child’s IEP. The parents, of course, have received
an invitation to this meeting and are included as an integral part of the decision
making team, as has already been explained to them by their favorite teacher.
When the parents arrive at the IEP meeting, they are confronted with a myriad of
people from the school district, including the school psychologist who has
probably written the ER, an LEA, a special education teacher, a regular education
teacher, and, depending upon the diagnosis, possibly an OT, an S/L therapist, a
person trained in ABA, DTT or TEACCH, an expert in AT, and any number of
other trained specialists who can offer constructive input to aid in the
development of an appropriate program for the child with special needs. If there
are emotional or behavioral issues that require mental health intervention, a TSS
or some other representative from MH/MR might be present also. Of course, the
school district expects the parents to be reassured and thrilled by their
responsiveness in bringing together such an exhaustive team of professionals.
Meanwhile, the parents enter the room for the meeting and remain standing,
uncertain about where they should sit, who all these people are, and whether they
should have considered bringing an army with them for protection. They are
totally taken aback, because they have been led to believe that this will be a
friendly meeting, and they are not prepared for such a huge crowd of people
representing the school district. They are already feeling tentative because there
have been numerous references to MDT’s, ER’s, IEP’s, NOREP’s, OT, PT, S/L,
etc., none of which terms are familiar to them. Although their favorite teacher
has already reassured them that they will become familiar with the process and
terminology over time and that everyone will be working together to help their
child, the crowd with which they are confronted is just too much for them, and
their insecurities take over. They walk over to the teacher to ask about the
meeting participants, but the teacher does not seem to know everyone. They
begin to realize that the person who was identified as the LEA has been talking to
them, and they have no idea who this person is or what has been said to them
while they were standing in stunned silence at the entrance to the room. They feel
totally overwhelmed and have a strong sense of foreboding. They are beginning
to think that they should not trust the school district. If the school district is truly
on their child’s side, why would there be a need to include so many people at the
meeting to defend the district’s position.
This would be a good time for a special education advocate!
B. Deciphering the Special Education Acronyms – A First Step
ABA – Applied Behavioral Analysis
ADA – Americans with Disabilities Act
ADD – Attention Deficit Disorder
ADHD – Attention Deficit Hyperactivity Disorder
APE – Adaptive Physical Education
APS – Approved Private School
AT – Assistive Technology
APS – Approved Private School
ARC – Association for Retarded Citizens
AS – Asperger’s Syndrome
BEC – Basic Education Circular
CASSP – Child & Adolescent Service System Program
CBA – Curriculum Based Assessment
CER – Comprehensive Evaluation Report (before 6/01)
CFR – Code of Federal Regulations
COPAA – The Council of Parent Attorneys and Advocates
CST – Child Study Team
CP – Cerebral Palsy
DTT – Discrete Trial Training
ED – Emotional Disturbance
EI – Early Intervention
EISSA – Early Intervention Services System Act
ELC–PA – Education Law Center of Pennsylvania
EMR – Educable Mentally Retarded
ER – Evaluation Report (6/01)
ES – Emotional Support
ESL – English as a Second Language
ESY – Extended School Year
FAPE – Free and Appropriate Public Education
FBA – Functional Behavioral Assessment
FD – Familial Dysautonomia
FEOG – Full Educational Opportunity Goal
FERPA – Family Educational Rights & Privacy Act
IDEA – Individuals with Disabilities Education Act
IEP – Individualized Education Program
IQ – Intelligence Quotient
ISSP – Instructional Support System of Pennsylvania
IST – Instructional Support Team/ Teacher
IU – Intermediate Unit
LD – Learning Disability
LEA – Local Educational Agency
LEP – Limited English Proficiency
LRE – Least Restrictive Environment
MA – Medical Assistance
MDE – Multi-Disciplinary Evaluation
MDT – Multi-Disciplinary Team
MH/MR – Mental Health/Mental Retardation
MOU – Memorandum of Understanding
MR – Mental Retardation
NORA – Notice of Recommended Assignment (before 6/01)
NOREP – Notice of Recommended Educational Placement (6/01)
ODR – Office for Dispute Resolution
OHI – Other Health Impairment
OSEP – Office of Special Education in Pennsylvania
OT – Occupational Therapy
PAGE – PA Association for Gifted Education
PASA – PA Alternate System of Assessment
PATTAN – PA Training and Technical Assistance Network
PDD – Pervasive Developmental Disorder
PDD-NOS – Pervasive Developmental Disorder Not Otherwise
Specified
PDE – PA Department of Education
PIN – Parent Involved Network
PSSA – PA System of School Assessment
PT – Physical Therapy
RTF – Residential Treatment Facility
SDI – Specially Designed Instruction
SEA – State Educational Agency
SED – Serious Emotional Disturbance
SETT – Student Evaluation Tests and Tools
SID – Sensory Integration Dysfunction
S/L – Speech and Language
SLD – Specific Learning Disability
TEACCH - Treatment and Education of Autistic and related
Communication handicapped CHildren
TMR – Trainable Mentally Retarded
TSS – Therapeutic Support Staff
COMMENT II:
Rewind to the beginning of the scenario detailed in Comment I. Imagine yourself
in the place of the parents of the child who has just been evaluated. Regardless of
the age of the child, the nature of the disability, and who made the referral, the
parents are now very concerned about their child and apprehensive about the
outcome of the evaluation. They have given permission for the school district to
evaluate their child, and they have been presented with a lot of information, both
oral and written, which is all new to them. Some of that information includes
acronyms from the prior list, without any clear explanation of the meaning or the
pertinence of the acronyms to their child in this specific situation. The parents
have consulted with their child’s regular education teacher, whom they like and
trust, but the teacher does not know everyone involved and is not familiar with all
the terminology commonly used in special education.
If the parents are lucky, they have mentioned to someone early on that they are
involved in the school evaluation process for their child, and they have been
advised to seek help from a special education advocate. If that is the case, they
will not be surprised or overwhelmed by the number of people in the meeting
room representing the district, and even if they do not know everyone, they will at
least be made aware of the nature, purpose, and necessity for the presence of each
of the participants. They will have a clear understanding of why certain people
are legally required to be present for the protection of the child. If acronyms are
used, the advocate will explain their meaning, either before or during the meeting,
and if the parents have questions about anything that has been included in or
omitted from the evaluation or discussed at the meeting, the advocate will help
them get the answers they require in order to move forward. A good advocate
will help them to understand the process and allow them to see that the school
district is not the enemy, but is in fact mandated to help and support their child in
the quest for educational success. The advocate will keep them apprised of their
child’s legal rights so that they can work constructively and collaboratively with
the district to ensure that the child will be provided with the necessary supports to
make meaningful educational progress. The experienced advocate will make
certain that nothing is forgotten or left to chance and will bring a less emotional
and more balanced perspective to the meeting table, enabling the team to
negotiate the most successful educational program for the child. A good advocate
will advise the parents when it would be prudent to involve other individuals in
the meeting who can provide an objective, professional opinion regarding specific
components of the child’s diagnosis or educational program.
An advocate’s job is to facilitate the special education process in a manner that
allows the parents to prioritize their educational goals for their child so they can
work comfortably with the school district, avoiding needless confrontation, to
help their child reasonably achieve those goals. If the advocate is effective, the
child will be able to experience educational success without anyone feeling
compromised, and everyone will win.
II. CHOOSING AN ADVOCATE TO BE YOUR SPECIAL
EDUCATION PARTNER
A. Some Good Reasons for Choosing an Advocate
1. Cost Factor
An advocate helps you to avoid litigation, which is
cost effective. Litigation generally involves appeals
that can take years at a cost per hour that is
significantly more than the cost per hour of
advocacy. Although an argument can be made that
the cost of litigation is reimbursable if the parents
are successful in due process, there is no guarantee
that the parents will prevail, and the initial hearing
and appeals process can be very costly at the outset
even if the parents eventually recover some or all of
their fees paid.
2. Time Factor
Advocacy generally involves a limited time period,
since there are established timelines from the
beginning of the screening and evaluation process
through the creation of the IEP. Thus, the
advocate’s work will be finished in most instances
within a few months, instead of the years that are
potentially required for a resolution through due
process and appeals channels. Once the child’s
educational program has been successfully
established, the only further advocacy required will
be for periodic, follow up IEP meetings that will not
be very time consuming or costly.
3. De-escalation of Conflict Between the Parents
and the School District
Often the relationship between the parents and the
school district can become confrontational and
contentious. An effective advocate acts almost as a
mediator or arbitrator to help both sides
depersonalize and build a bridge toward a more
common perspective and understanding. The
advocate can be utilized as a calm, measured voice
to keep the program on track for the child and avoid
litigation. This is beneficial because of the
significant emotional toll that due process
proceedings can take on a family, even if the family
has a strong case and is likely to succeed in
litigation, particularly if there are other siblings who
will continue to be educated in the same school
system, necessitating further contact with school
district personnel beyond the due process hearing
and appeals.
4. Trust Factor
Sometimes parents inherently distrust the school
district, whether warranted or not. The introduction
of an advocate allows the parents to step back
emotionally and relinquish some control to the
advocate, enabling the team to establishing an
appropriate educational program for the child.
While the parents do not trust the district
representatives, they believe that the advocate will
represent their child’s best interests as an active and
constructive member of the IEP team, thus allowing
the process to move forward without litigation.
B. Qualifications of a Good and Effective Advocate
1. Make certain that the advocate gives you all the
pertinent professional information up front. You should
be told whether the advocate is a lawyer and be given
specific information about professional background and
experience, what the typical fee and billing arrangements
are, what is included in the fee, whether the advocate has
worked in your school district before, or if not, what type
of experience the advocate has had with cases similar to
yours.
2. Trust your instincts. Even if the advocate has a good
reputation and has helped other people you know and
respect, nobody is right for everyone all of the time. A
good advocate will recognize when the relationship is not
working and will try to accommodate the client by altering
an approach or suggesting another advocate who might be a
better match.
3. Since there are no set standards for the quality of
service to be provided by an advocate, interview the
advocate and make sure that your questions are
adequately answered and you feel satisfied that the
advocate under consideration will be able to provide
you with the help that you need and want. Make sure
the advocate knows the legal rights of the child and
understands what is acceptable to expect from the district.
Call the state or local Bar Association and ask for referrals.
Seek referrals from other parents and professionals by word
of mouth. Previous success is often the best
recommendation!
4. Choose a true advocate rather than a litigator. You can
always call in a litigator if you need to escalate the
situation, but it is almost impossible to pull back once you
move towards litigation. If you have contacted a litigator
and you determine that you are not yet ready to seek due
process but simply need some guidance, ask the litigator to
refer you to an advocate.
5. Make sure the advocate asks for thorough details about
your child and the situation with your school district. A
good advocate cannot analyze your situation and help you
resolve any problems without knowing the specifics of your
situation and your perspective. Make sure your advocate
asks for all pertinent documents, records and reports about
your child and has an opportunity to review them and
consult with you before communicating with the school
district on your behalf. Otherwise your child’s needs and
program could be compromised.
6. Look for honesty and straightforwardness. If the
advocate guarantees to win your case, run the other way.
Make sure that the advocate discusses all the options with
you and gives you some realistic idea of what is reasonable
to expect. The advocate cannot absolutely predict the
timeline or the outcome of a case, but should still be able to
give you some idea of what you can reasonably expect. If
you are uncomfortable or uncertain about anything that is
happening during the process, do not hesitate to contact
your advocate to seek answers or clarification.
III. GUIDELINES FOR EFFECTIVE ADVOCACY: AVOIDING
PITFALLS
A. Be faithful to the process. It usually works, and even when it
does not and your client ends up in due process, your faithfulness
to the process helps you to establish the reasonableness and
cooperativeness of your client and sets up a stronger case if there is
a need to go forward to litigation.
B. Introduce yourself at the outset. Do not surprise the school
district by showing up unannounced at a meeting. Instead, have
your client alert them that you are coming, or call the school
district representative yourself if you have not previously worked
in that district. Explain who you are and what you hope to
accomplish collaboratively with them. Let them know
immediately that you are a lawyer but not a litigator, and that you
have worked in numerous districts as an integral part of the IEP
process. If you are straightforward, the school district will be more
willing to trust you and to allow you access to the process without
their lawyers present. That will greatly enhance the likelihood of a
positive outcome for your client.
C. Be professional and courteous. Do not give the school district an
excuse not to have you at the table. Even if the school district
representatives do not like you, they will have no basis to remove
you from the process if you maintain a professional demeanor and
are thorough and well prepared regarding your case.
D. Use written presentations to bolster oral arguments during the
evaluation process or at an IEP meeting, particularly if the
case is very complicated or the disabilities are not obvious, to
make a concrete and compelling argument for the district to
better comprehend the nature and complexity of the situation
and consider the child’s needs more seriously and completely.
Written presentations can also be used to clearly and firmly
establish arguments and timelines, to verify historical information,
or to help positively influence an administrator who has not been
involved from the outset and who might otherwise have only a
skewed perspective of the parents from school staff interested in
covering or protecting themselves.
E. Use email to firmly establish times and dates of historical data
and correspondence as well as for verification of type, nature,
and content of communication between the parents and the
school district. Establish the child’s history and pertinent facts and
events as they apply to the child’s tenure in the district by detailing
that information in written form such as email.
F. Do not play games. Let the district know what you want upfront.
Help the district to stay on track rather than trying to trap them.
Let them know when you are doing that and you will win
negotiating points with them. They may not fully trust you at first,
but they will begin to recognize and appreciate your
straightforwardness as they continue to work with you.
Establishing a positive, constructive relationship with the district
can serve you well in the future as well as in the immediate case.
G. Remind the team publicly and often that everyone is on the
same side and should not be working at cross purposes to each
other. Keep the best interests of the child in mind at all times.
Everyone should have the same goal of appropriately educating the
child. Expose those people in the system who are not working for
the child. Keep specific, written records to establish patterns, both
positive and negative, to reinforce the good and expose the bad.
Escalate when necessary to expose the people who are not doing a
good job of educating the children. Copy upper level
administrators to establish certain facts and to show abuses to the
system by lower level administrators. Resist the impulse to
editorialize. Editorializing will diminish your credibility. You can
make your point without blaming anyone or becoming
confrontational. Use control, and let the facts speak for
themselves.
H. Do not mislead your clients. If you think they will not be
able to get what they want or they do not have a strong
legal basis for what they are asking, let them know right
away. Do not promise something you can’t deliver. If you
believe that you cannot be successful in obtaining what the
parent wants or that it would be very difficult to prevail, do not
agree to take the case unless the parent feels strongly that you
should still try.
I. Consider the wishes of the parents, and if you think the
parents are wrong, try to help them understand your
perspective and what you believe to be the best interests of
their child. Try to be objective, but err on the side of the parent in
disputes against the district. Do not usurp the parent’s perspective
with you own. For example, if you think the child’s needs could
be served in a public school setting but the parents want an
approved private school, and a reasonable argument can be made
for either position, argue from the perspective of what the parents
believe would be most appropriate for their child. Try your best to
help the district understand the parents’ rationale for their position.
J. Always be an advocate for the child, even though you are
retained by the parent, representing the child from the
parent’s perspective if there is a conflict between the parent
and the district, but never compromising the good of the child.
Listen to the child. Ask the child for an impression of the teacher
and ask the parents what the child is reporting back about the
classroom. Children are generally straightforward and do not have
a hidden agenda, so their input is particularly valuable.
K. Do not ever give the client a guarantee. You can predict what
you think will happen, but warn the client that you can never know
for certain what the district will decide to do and what course of
action the district will take. Be clear upfront about what is
reasonable to expect and what you hope to accomplish. Do not
promise something you cannot deliver. Explain all sides of an
issue and all possible responses as far as you can predict them, and
ask the parent for input about how to proceed. For example, some
parents will be firmly committed to public education and will not
want to consider an alternative private placement even if that might
be appropriate. Some may want a self contained setting for their
child, while others whose child has similar issues might insist upon
full inclusion with supports. Some might insist on keeping their
child at a neighborhood school, while others in similar
circumstances might be willing to move to or even insist upon
another school within the district to meet their child’s special
needs. Remember that there are often many different, equally
viable solutions to the same problem.
L. Be honest. If you think the parents are totally wrong or off base,
try to find a gentle way to tell them. When the parents and the
district are at odds, try to help them see each other’s perspectives
to reach a compromise or a common understanding that will serve
the interests of the child and move the process forward in a
productive and constructive manner.
M. Create a plan for what you want to accomplish before
you begin negotiations. Be thoroughly familiar with the
child’s file before you begin discussions with the district so
there will be no surprises and you will be prepared to
answer any arguments presented by the district.
N. Gather information from a variety of sources so that
you understand the different perspectives and opinions
involving the child whom you represent. Even though
you are employed by the parents, it is useful for you to
understand the differences and commonality between the
parties so that you can advocate more effectively for the
child. There is always more than one side to a story, and
you cannot reasonably form your own opinion until you
have heard from all sides. This should be one of the
primary responsibilities you undertake as an advocate in
fairness to the child.
O. Make certain that the school district is providing accurate and
honest information to the parents about the process. For
instance, sometimes parents are led to believe that they must pay
for a private placement if they want their child’s program to be
individualized. Although it is true that a school district is not
required to provide what is “best” for the child educationally, the
district has an absolute responsibility to create an individualized
program specifically designed to help the student be educationally
successful and make meaningful educational progress. The
parameters are only dictated by the child’s special needs and
cannot be constrained by programs that do or do not already exist
within the school district.
P. Make sure that Transition is sufficiently addressed at every
critical point, and particularly before a child is expected to
complete high school and move to a post high school
experience. The IEP must begin to formally address the issue of
Transition when a child reaches fourteen years of age. A
Transition Plan must be developed and particularlized early
enough in a child’s educational tenure so that the team can create
yearly IEP’s that are specifically driven by the child’s ultimate,
realistic life goals.
IV. MAINTAINING A STRONG NEGOTIATING STANCE WHILE
KEEPING THE CASE VIABLE FOR LITIGATION
A. Do not do anything as an advocate that would compromise the
case should it need to go to litigation. Do not make any
damaging statements, in the interests of a settlement compromise,
if those statements can be carried over into due process. If the
school district lawyer becomes involved, be particularly cognizant
of the fact that the same lawyer will probably be representing the
district should the case result in a due process hearing, but
someone else will be representing your client, so you will not be
there to control the damage from a harmful statement previously
made by you during the negotiation process.
B. Protect your client from making mistakes. Interrupt if your
client says or does anything at a meeting or during a conversation
that will compromise your negotiation efforts on the child’s behalf.
For example, make sure your client stays away from words like
“best program” or “I want this for my child.” Your clients can
always have what they want or what is best for their child, but the
district will be quick to point out that they are not required to
provide that. The district need only provide what is appropriate to
enable the child to make meaningful educational progress. Do use
the phrase “meaningful educational progress” and any other legal
language and buzz words that serve to solidify the firmly
established legal rights of the child.
C. Keep things friendly. Do not create or exacerbate confrontation
between client and school district. A big part of your job is to
smooth things over to strengthen the relationship between the
parties. Keep everyone on track toward establishing an appropriate
education program for the child.
D. Do not threaten an action if you are not prepared to follow
through. Consult with your client first and thoroughly discuss and
consider all options. Even if you think a case will not end up in
due process, you cannot rule out the possibility once the issue is
raised, and it is important not to suggest due process as an option if
your client is not prepared to follow through with that.
E. Keep the personalities of your clients in mind when making a
referral to a litigator. Choose a litigator whom you believe will
be a good match and with whom your clients can comfortably
connect. Due process is stressful, and your clients will benefit
greatly from using a litigator who can put them at ease.
F. Use great care in establishing a written record. Always
remember that although you may never go to litigation, your
correspondence might.
1. Do not dash off an email in a hurry or out of
frustration, aggravation, anger or annoyance.
Otherwise, your words and tone might come back to haunt
you.
2. Do use language that can be constructive in terms of the
detail, facts and record that it provides of the
proceedings and the process. Resist the temptation to
editorialize or make disparaging or gratuitous remarks,
because that will take away from the substance of your case
and will weaken your position. Provide information and
facts that are directly pertinent to the situation at hand.
3. Record the history of the case to illustrate compliance
and faithfulness to the process and to clearly indicate
that your client has not attempted to circumvent the
process and that numerous interventions have already
been tried. This avoids duplication of efforts that may have
been made privately, either with or without the district’s
knowledge, that the district would also have made pursuant
to the process.
4. Copy other people if it is important to alert someone not
in the ordinary chain of communication, if you want to
have witnesses to the information you are providing, or
if you want to involve a superior without stepping on
anyone’s toes. You can use this approach to accelerate
a case without circumventing the process. You can also be
more certain about the sincerity and integrity of the district
with regard to the negotiations and potential settlement if
there is an audience of interested parties awaiting the
outcome.
G. If you want a private placement or your clients have been
exploring that as a possibility on their own, involve the district
early on so they do not think you are trying to trick them.
Researching the possibilities is not evidence of intent and does not
commit anyone to anything, but it keeps all the options open. If
you are straightforward about what your clients are doing, the
district will have no reason to expect that you have anything to
hide or are trying to “get away with something,” and you will
obviate their ability to claim at a later time that you have attempted
to unilaterally place the child with the expectation of
reimbursement from them.
H. Ask questions that anticipate the process so the district will
have some idea of where you are headed. This avoids wasting
time while still allowing legal avenues to be appropriately
followed. It also can provide some insight into the district’s likely
ultimate posture, since the district has probably already considered
possibilities for the child that they cannot appropriately address
from a legal standpoint prematurely in the process. By raising
anticipatory questions, you might discover that you are all on the
same wavelength and that the process can be expedited to reach a
speedy resolution that will be satisfactory to all the parties.
Conversely, you might be able to expeditiously determine that you
will never reach a resolution without moving forward to due
process, and at that point you can refer your client to an
appropriate litigator.
I. Be straightforward. Disarm the district by not dancing around an
issue. Lay out your plan upfront so they have a chance to digest it;
then follow the process through the meeting and return to your
original premise at the conclusion of the meeting regarding what
you deem most appropriate for this child. If it does not appear that
you are moving forward at that point, determine what interim steps
are necessary, and be cognizant of preparing your case for the
eventuality of due process.
J. Help the meeting participants from the district to understand
as much as possible about the child’s specific disabilities. Do
not assume that everyone has read the file thoroughly or knows
and understands the ramifications of the child’s disabilities. A
clear explanation of the issues may cause the district
representatives to develop a greater appreciation for the
perspective of the parents, and if not, it will at least establish the
full force and extent of the child’s disabilities for the record so that
the district cannot later claim that it was not fully aware of the
nature and extent of the child’s educational issues and need for
support.
K. Do not allow a case to be pushed into litigation prematurely,
even if you think it might eventually end up there. Work with
the parents to develop the case so that the facts are firmly
established and they have the best chance of winning, even if it
means that everything will take a bit longer. If you are faithful to
the process, it will usually work to get what you need for the child.
If you reach an impasse, you will have established a stronger case
for litigation if you show that the parents have followed the
process and have cooperated with the district up until the point of
impasse.
L. Keep in mind the continuum of settlement options. Analyze the
situation carefully to determine whether or at what point you
should advise the parents to request a reconvening of the IEP team,
mediation, or a pre-hearing conference. Consider the intermediate
steps, explain them to your client, and suggest litigation only as a
last resort when all other options have been reasonably exhausted.
Tell your client when you believe it is time to escalate and what to
expect in terms of a response. Explain the time, emotion, and
financial cost and variables involved in a due process proceeding.
Explain the stay put provisions, particularly if the parent is very
unhappy with the program currently being provided. When you
honestly believe you can do nothing more to help the parents
achieve what they want from the district, refer them to a litigator
and work with the litigator to help move the case forward toward
resolution, either by escalating the settlement negotiations or
moving into due process.
CONCLUSION
If you are the parent, choose your advocate carefully. Be wary of any inherent
conflict if you deal with an advocate who also litigates or represents school
districts as well as parents. Do not be afraid to ask about such potential conflicts.
In addition, be aware that a lawyer acting as an advocate who does not represent
the parents in due process hearings or other litigation proceedings is often given
some latitude in terms of conferring with district level representatives and
attending meetings without the requirement for district lawyers to be present.
This generally provides a more favorable climate for negotiation and
collaboration rather than confrontation, since the scenario allows the
attorney/advocate to function in the nature of a mediator or arbitrator rather than
as an adversary against an opposing attorney. Use your advocate to help you keep
your emotions in check so as not to detract from the integrity of the process.
Listen to your advocate, but do not be afraid to ask questions. If you are uncertain
about whether to speak up at a meeting, ask for a few minutes to confer privately
with your advocate. Above all, trust your instincts, because you know your child
best. A good advocate will know and respect that, even if you disagree with each
other about how to proceed on a case or a particular issue.
If you are the advocate, be aware of possible conflicts of interest in presenting
your case to the district. If you are inclined to negotiate a settlement, you may
need to compromise, but you should never do so at the expense of the child, and
you should always inform the parents before moving forward with anything that
you have not already discussed. As a non-litigating advocate, you will generally
have more flexibility to attend meetings without the district’s lawyers present and
will be allowed access to people in the system who might otherwise be barred
from talking with you. This will offer you a valuable opportunity to de-escalate
confrontation. Keep in mind, however, that by virtue of your status as an attorney
you can choose to call the district’s lawyers, if indicated, to push forward a case
that appears to be stalled or to emphasize the seriousness of your client’s
intentions. The district solicitor will be respectful of you as a fellow attorney, and
you can often accomplish what you want once you explain the issues and point
out the vulnerabilities and potential liability to the district if the case moves into
due process. Keep in mind that settlement offers made by the district cannot be
used in a due process hearing as evidence of implied wrongdoing on the part of
district. Be careful not to compromise your client in that regard. Leave the door
open for the litigator to present a strong and complete case if it becomes necessary
for your client to seek a due process hearing. Do your homework before you
proceed to minimize the possibility that whatever you say or do will be
irreversible or harmful to the child.
An effective advocacy relationship is based on mutual trust and good
communication between the parties. Please keep that in mind and always be
forthcoming. Parents should share all pertinent information with the advocate and
expect that all such information will be treated with the utmost sensitivity and
confidentiality. Advocates should establish constructive relationships within the
school district without compromising their integrity or the confidentiality of the
child and the family.
The ideas and strategies presented in this document are meant to serve as
guidelines for constructive advocacy as a reasonable alternative to litigation. The
document is by no means exhaustive, but is meant to steer its readers in a positive
direction toward helping children with special needs in their quest for a free and
appropriate public education which will allow them the greatest opportunity to
lead successful and meaningful lives.