Julie Weatherly is a founder of the Weatherly Law Firm in Atlanta, which works with school districts in the area of special education compliance. She is also the founder of Resolutions in Special Education, a consulting firm that provides school districts with special education training and mediation services.
What are some of the key legal issues facing school district administrators in terms of special education?
Unfortunately, we are in a tremendously litigious environment. Special education litigation has just skyrocketed, particularly in the last couple of years.
What's driving this?
families sue for monetary
damages, as with
personal injury tort law.'
First of all, the law is not clear. It leaves tons of unanswered questions. Second, the law is so complex that it is essentially impossible for schools to be in 100 percent compliance with all of the procedural technicalities.
What's the core conflict behind special education lawsuits?
Certainly if Congress appropriated everything that the districts needed to meet all of the various needs of all of the childrenwith disabilities, then, of course, there probably would never be disputes. In most cases that go to court, you see that the parents feel the student is not receiving a free appropriate public education, whereas the school system believes it is providing a free appropriate public education. Of course, the Supreme Court ruled back in 1982 that the standard isn't "best" education but simply "appropriate" education. Many of the cases come down to what is appropriate.
Do you see any trends in the litigation arena?
Autism is just huge in the litigation arena, and has been for the last decade. In many of these cases, parents want either private school, private home services or maybe even a residential facility, 24-hour care. And because that's a significant cost for a school district, a lot of school boards choose to defend their own programs because if they pay for private school for one child it becomes a precedent.
What role has the Web played?
Much of the increase in litigation can be explained by the Web and all the information out there. There are Web sites that give parents a roadmap for how to set up the educators at your next IEP meeting, how to prepare to sue for your autistic child to go to a private school. Whether it's misinformation or not-and many times I believe it is misinformation-the Web kind of encourages parents to gather together and sue.
Where do districts commonly trip up in terms of compliance?
Probably the most common mistake is making determinations for services without giving parents the legally required level of meaningful participation. Lawyers for families love this one. If they can fi nd evidence that somebody's already made the decision before there was even a team meeting to make important educational determinations, they can sue on that basis and win. Another area is discipline. There are special rules about discipline that apply to children with disabilities, and many administrators simply aren't aware of those rules.
Are there any new areas for concern among district administrators?
We're starting to see a signifi cant issue arise, which is whether or not districts, and even individual administrators and school board members personally, can be sued for pain and suffering damages because of a district's action regarding a special education compliance issue. In other words, it used to be the worst that could happen was a court would order the district to provide a remedy for the child. But now we're starting to see families sue for monetary damages, as with personal injury tort law. It's not clear yet how this will play out, but it is a disturbing trend.
What advice do you have for superintendents and other senior administrators?
My experience has been that superintendents don't pay a lot of attention to special ed, even though it is perhaps the most litigious area. It's very emotional. So my advice would be to pay attention and listen to your special-ed administrators. They know what they're talking about.