This article editorial (original behind paywall) (via this post) from Pennsylvania describes one of every special education parent’s many fears about the due process procedure: having to pay the school district’s legal fees if they lose.
Reading the story, and the complaint (PDF) , it seems clear that there are three main issues:
- The parent has made a large number of due process hearing, mediation, and OCR requests and complaints. (Note: there’s no real way to tell from the complaint to what extent these requests were in good faith.)
- The parent appears to have lost all the due process hearings, mediation did not work, and OCR dismissed the complaints. (Note: this is not “proof” but may be evidence that the parent’s actions were not in good faith.)
- The parent allegedly made a statement to the mediator about a desire to use dispute resolution processes to increase costs for the district, theoretically leading to a decision to accede to the parent’s demands.
What are the lessons? First, don’t use procedures for an improper purpose. It probably won’t really help in any case. Second, if you are thinking that way, or even just blowing off steam or wondering whether a district makes that sort of cost to fight vs. cost to serve analysis, keep it to yourself. Mediators, hearing officers, and judges all have some measure of responsibility to ensuring a fair system for all. Even your own lawyer has a responsibility to protect the system from abuse (school district lawyers have the same responsibility, but there’s no specific part of IDEA that makes them personally liable for maintaining an improper action like there is for parents’ lawyers).
Think of it this way: if a special education director told a mediator something like this: “Parent’s proposal is appropriate, but it will be cheaper for us to just fight her rather than provide services to her son,” wouldn’t you be appropriately outraged? Isn’t that the sort of frivolous use of due process that would drive you up the wall? Wouldn’t you expect a judge to at least hear your complaint and look into the matter? I know I would.
Have district employees told, or warned, you about having to pay school district lawyers’ fees? My sense is that the language used is probably overbearing and more than a little slanted in many cases. Your best way as parents to protect yourselves is to get competent advice when you’re considering due process or related steps. Plenty of lawyers and advocates like myself are available to give advice in many different ways: blogs, presentations, Q&A sessions, or even twitter.
And, of course, don’t forget the groups of parents supporting parents where we can learn from each other and help everyone’s kids.