How We Win

It may seem surprising and counterintuitive, but the legal standard in IDEA cases requires the parent to prove that the District’s offer is inappropriate. The District can win the hearing merely by showing that its offer conferred more than de minimus educational benefit for the student. Not surprisingly, therefore, many decisions are decided in favor of the school district.

Why, then, if this is so, are we able to successfully settle so many of our cases for a package of services greater than that which the District might defensibly offer at the IEP meeting?

The answer to this has to do with attorneys’ fees.

IDEA provides that the parent is entitled to reasonable attorneys’ fees if s/he prevails at hearing. In addition, going to hearing is very expensive for the District even if it wins, as it still has to pay for its own attorney’s work on the case. Also, District personnel find litigation disruptive and stressful.

Therefore, we find that Districts often can be prevailed upon to settle a case if the attorney pulls out “all the stops” and makes it clear that s/he is prepared to do whatever is necessary. Obviously, a prompt settlement is extremely desirable, as parents usually do not enjoy litigation anymore than the District does, and, more importantly, litigation delays the receipt of the child’s services.

Here are some reasons why, in our experience, Districts have chosen to settle cases that could have been litigated:

1. The parent’s attorney discovered that the classroom teacher was overly physically affectionate with his/her male and female students.
2. The parent’s attorney discovered that the District had made testing errors that led to a flawed IEP.
3. The parent’s expert observed the student’s classroom and corroborated the parents’ contention that the teacher was verbally abusive and was obstructing delivery of the student’s ABA program.
4. The District offered the student a special ed classroom that had not yet been opened on the day it was offered at the IEP meeting.
5. The District had a triennial IEP and invited only the student’s teacher.
6. The District refused to allow the parent’s expert to observe the offered classroom for 7 months.
7. The parent showed via data developed in a private educational setting that the student could have more academic success than claimed by the District.
8. The parent’s attorney reviewed the IEP and discovered illegalities to point out to the District, for example:
     A. No IEP in place by the 3rd birthday.
     B. Placement offer in IEP was vague and defective.
     C. Services were provided by staff who did not possess the appropriate credential.
     D. District staff had offered peanuts to a student with a life-threatening allergy.
     E. District had failed to perform assessments previously agreed to
     F. Student was injured at school.
     G. District assessors had falsified student test results.
     H. District had allowed the student to wander off the school grounds.

In short, thorough case analysis underlies most successful victories and settlements. When a case is well prepared, then the walls start to come down.

Bonnie Z Yates

Your Comments and Questions are Welcome