Post Winkelman v Ensuring Good Education for Special Needs - - PDF document

Post – Winkelman v

Ensuring Good Education for Special Needs Children

By Barbara E. Etkind, Esq. and Prashant K. Khetan, Esq.

for parents to keep in mind. In order to prevail in the courts, parents must have established a good record of argu- ments and evidence at the administra- tive level (because new arguments and evidence cannot be submitted during the later legal proceedings). In addi- tion, parents must have complied with all of the procedural requirements at the administrative level. Otherwise, the case stands a very high chance of being dismissed. Parents, beware – understanding and navigating these proceedings is no easy

• task. In this article we hope to provide

some guidance and suggestions that may bring clarity to the process and lighten the burden for parents facing these issues.

Background

More than fifty years ago, the Supreme Court said that education is perhaps the most important function of state and local governments. Thirty years before that, the Court said “it is the natural duty of the parent to give his children education suitable to their station in life.” In the case of children with special needs, Congress implemented these views by passing the IDEA. The IDEA was designed to ensure that all chil- dren with special needs have access to a free and appropriate public educa- tion (commonly known as FAPE). The law defines a FAPE as an educational instruction “specially designed . . . to

A

s many parents with spe- cial needs children know, it is heart-wrenching to think your child is not receiving adequate care and education from his or her

• school. The Supreme Court’s recent

decision in Winkelman v. Parma City School District, 127 S. Ct. 1994 (May 21, 2007), represents a major step for- ward in the protection of the rights of children with special needs and the rights of their parents. In Winkelman, the Court held that parents of special needs children have a right to file law- suits in federal courts against school districts, and can file these suits them- selves, without legal representation, in order to enforce rights guaranteed by the Individuals With Disabilities Education Act (IDEA). This is a significant ruling because many parents of children with special needs cannot afford to pay for an attor-

• ney. It also is important because it allows

for a consistent and logical progression between administrative proceedings, at which parents are permitted to par- ticipate without legal representation, and judicial actions, at which, prior to Winkelman, many federal courts pro- hibited parents from proceeding unless they either were represented by counsel

• r were attorneys themselves. Success

in the courts on IDEA claims (whether brought with or without legal coun- sel), however, depends in very large part on the actions taken earlier, dur- ing the administrative stage of the case. This is an extremely important point meet the unique needs of a child with a disability.” To ensure that each child entitled to a FAPE receives one, the IDEA requires states, until the child reaches age three, and schools there- after, to provide special needs stu- dents with individualized education plans (IEPs) at no cost to the students’

• parents. According to the IDEA, the

school district must work with par- ents to develop an IEP for their child. Moreover, each time a student’s IEP changes, which it should over time, parents must be involved to ensure that their child continues to receive a FAPE. Congress foresaw the possibility that the IEP provided to a child might be inadequate and, therefore, included in the IDEA the procedure parents must follow to address any problems. Parents first must challenge the IEP at the “administrative level,” by present- ing a “complaint” that outlines the parents’ specific concerns with the

• IEP. Submission of the complaint will

result in a preliminary meeting with school personnel, at which parents are expected to discuss their concerns and school personnel are supposed to address them. If the parents are not satisfied with the school’s response, they may request a hearing, at which a “hearing officer” will resolve the issues

• raised. If the parents are not satisfied

with the decision of the hearing officer, they are entitled to file suit in federal

• r state court. Until the Winkelman

decision, however, most federal courts

lman v. Parma

Continued on page 56

did not permit parents of children with special needs to sue to enforce rights under the IDEA unless they were rep- resented by an attorney.

Winkelman v. Parma City School District

Jeff and Sandee Winkelman decided to fight the Parma City School District to obtain an acceptable FAPE for their son, Jacob, who has autism. As part of this challenge, the Winkelmans argued that the school district did not follow procedures required under the IDEA and that they, as parents, should be entitled to recover the money they had spent to send Jacob to a private school when the public school did not pro- vide him with an adequate IEP. At the administrative and federal trial court level, the Winkelmans were able to hire an attorney; but when they were dissat- isfied with the hearing officer and trial court’s decisions and appealed to the court of appeals, they could not afford counsel. After the trial court rejected the Winkelmans’ arguments and dis- missed the case, the Winkelmans appealed to the court of appeals. That court dismissed their case because the Winkelmans were not represented by an attorney. According to the appel- late court, only children with special needs – not their parents – have rights under the IDEA. Therefore, the court

• f appeals held that the parents had

no right to sue the school district. And, because neither Jeff nor Sandee Winkelman is an attorney, they could not represent Jacob in an action brought to enforce his rights under the statute. That left only two options: either Jacob could sue and represent himself – hardly a realistic alternative – or the Winkelmans could retain an attorney to represent their son – also an unrealistic alternative, given the family’s financial situation. With the assistance of attorneys working on a volunteer basis, the Winkelmans brought their case to the Supreme Court. On May 21, 2007, the Supreme Court decided the Winkelman case, ruling that parents themselves enjoy rights under the

• IDEA. The Supreme Court noted that

while the primary goal of Congress was to ensure that children with disabilities are afforded a free and appropriate education, that goal can- not be met without recognizing that parents have rights under the stat- ute as well. For example, parents are entitled – indeed, encouraged – to play a significant role in the IEP pro-

• cess. In addition, parents are entitled

to recover the cost of private school tuition if their child is not provided a FAPE. Therefore, since parents have their own rights under the IDEA, the Supreme Court stated that parents can sue the school district under the IDEA and represent themselves (i.e., without hiring an attorney).

Tips for Parents Seeking to Challenge a School District

We expect the Winkelman decision will encourage more parents whose children have not received adequate education to challenge school districts in court. Of course, doing so can be time-consuming, mentally and physi- cally exhausting, and emotionally draining for parents. But, for par- ents who wish to pursue such action, we offer the following tips. However, although Winkleman permits parents, without counsel, to sue in federal court to enforce the IDEA, the guidance pro- vided in this article is no substitute for professional assistance, when possible.

1

From the very beginning, take a positive and constructive approach in discussing your child’s IEP. Do not go into meetings with school personnel with an adver- sarial attitude. Although we appreciate

50 November - December 2007 Autism ■ Asperger’s Digest

56 November - December 2007 Autism ■ Asperger’s Digest

that this is a very personal matter that involves your child’s future, the out- come is likely to be more favorable if you attempt to resolve differences ami-

• cably. Keep in mind that your child’s

education – not egos or principles – is the focus of your interactions. Lawsuits against school districts are not only time-consuming and exhausting, they also are difficult to win. Therefore, we recommend that you attempt, first, to be conciliatory and work with the school to develop an appropriate IEP, and regard suing the school district

• nly as a last resort.

2

If you decide to file a complaint, both at the administrative level and in court, it is imperative to have as complete and compelling a paper trail as possible. Therefore, keep a record of everything that happens with respect to your child’s education, make timely objections and/or raise concerns in writing (if not possible, then do so orally), take detailed notes

• f all conversations and meetings and

do not throw papers away.

3

If you are arguing that your child has special needs that require spe- cific services, it is helpful to have and bring to meetings documentation

• f medical or other professional diag-

noses and recommendations for such services.

4

Before you file a lawsuit in court, be sure you have gone through the entire administrative process required by your state. Each state has a specific administrative procedure that you must follow – from the type of complaint to be filed to the identity of the agency that must hear your case at the administrative level. Several states require you to appeal to a separate agency after the hearing officer’s deci- sion before filing a lawsuit. Generally, this information is provided by or can be obtained from the state department

• f education, which will hear the case

at the administrative level.

5

If you intend to file a lawsuit, become familiar with how courts

• perate in your state and with

the procedures by which your case will be decided. For example, as we men- tioned above, typically the judge can review only the records and evidence that were presented at the administra- tive level. This makes it very important to have properly presented all of the important documents and witnesses at the administrative level; otherwise you may lose your right to make such argu- ments in court.

6

Remember that not every injus- tice, no matter how unfair it may seem, has a legal remedy. As a general matter, the IDEA states that your child is entitled to an “appro- priate” education, not necessarily the “best” education. In other words, you must keep in mind that not every complaint is a basis for a lawsuit, even though it seems the school is acting improperly and not providing an ade- quate IEP.

7

There are many resources avail- able to parents of children with special needs, in general, and autism spectrum disorders, specifi-

• cally. Several publications and web-

sites are written for parents and cover issues related to the IDEA: for exam- ple, Wrightslaw (www.wrightslaw. com) offers volumes of information, much of it specific to autism. There are non-profit groups and lawyers that specialize in assisting parents of chil- dren with special needs: for example, National Disability Rights Network (www.napas.com) and Autism Society

• f America (autism-society.org).

8

Keep in mind that the school dis- trict will have experienced attor- neys handling the school’s case against you. Do not take lightly the fact that the school district is represented by an attorney if you are not.

9

Also, note that IDEA cases are complex, and not all attorneys have the ability or resources to handle such difficult cases. If you are able to retain counsel, screen your law- yer as carefully as you would screen a doctor. Moreover, even if you are represented by an attorney, remain involved in the progress of your case. A good attorney will value your input and participation. The Winkelman decision is a positive development for children with special needs and their parents. Among other things, the Supreme Court reaffirmed the importance of parents’ involvement in a child’s education, and particularly so for a child with special needs. While it is too early to tell if this case will result in an increase in the number of suits brought by parents against school districts, one thing is sure: Parents need to be fully informed and pre- pared when challenging an individu- alized education plan that they deem is insufficient for their special needs child.

Barbara E. Etkind is a partner at Ross, Dixon & Bell, LLP, who works primar- ily in insurance coverage counseling and appellate litigation. Prashant K. Khetan is an associate at the same firm; he works primarily in insurance coverage and com- mercial litigation. They can be reached at 202.662.2000 or via email: betkind@rdblaw. com or pkhetan@rdblaw.com, respectively. Winkleman v. Parma continued from page 50

As Appeared in the November/December 2007 issue. www.autismdigest.com

Reprinted with permission of publisher.