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What is Special Education Law?

posted Mar 18, 2013, 8:44 AM by Brenda Guynes

Special education law is a new emerging practice area of the law.  In 1975 Congress passed the Individuals with Disabilities in Education Act (IDEA) to assure that students with special needs are provided an education by the public schools.  It took over the course of the next decade before the states adopted their version of a local plan.  In the subsequent years, parents had begun to discover the rights granted to them for students with special needs and increasingly large numbers of previously undetected disabilities have been discovered and successfully treated to create a higher success rate of educated students upon completion of their K‑12 education. 

The bulk of attorneys practicing in this area continued to be parents or relatives of children with special education needs who have learned this area of the law to assist their relative and subsequently made efforts to market it to paying clients.  One exception to this in the St. Louis area is the Children's Legal Alliance of Legal Services of Eastern Missouri which has a staff of several attorneys and paralegals who work exclusively in this area of the law and have by far the most expertise.  This is an unusual situation where clients who qualify for legal services because of their income and asset levels actually receive representation from more experienced attorneys than wealthier clients. 

My approach to special education law differs from many other area practitioners, though I came to the practice in the same way because of my son has an Autism Spectrum diagnosis.  The basis for most decision making for special education law is an Individualized Special Education Plan and the meetings associated therewith, often abbreviated “IEP” or “IEP meetings”.  Many attorney practitioners do not participate in IEP meetings, preferring instead to let parents represent themselves at the IEP and then intervene later at a more formalized trial setting called a "show cause hearing."  This approach is unsatisfactory to many parents because of the timeline that results in a show cause hearing almost a year after the perception of need for services.  This approach is also risky because of the possibility of loss at a show cause hearing, and it is expensive because of the large amount of time that it takes an attorney to prepare for the show cause hearing.  So instead I have adopted a more proactive approach and represented clients even at Individualized Education Plan meetings. 

Individualized Education Plan meetings focus on consensus decision making and it can be extremely helpful to arrive at a consensus early, rather than challenge that consensus later.  IEP meetings can also be quite lengthy and for this reason I have employed a social worker with a Masters in Social Work who has much more experience in IEP meetings than myself.  In this way I am able to maintain the proactive approach that I prefer without generating great fees when prepare for and attend every IEP meeting at my hourly rate. 

This is a substantially new practice area compared to what was previously called "education law."  In the past, practitioners of education law sat with the school board and assisted the school board and superintendent in most legal matters, including a large number of human resources issues relating to the faculty and staff of the school, disciplinary issues relating to students and financial matters, like the proper approach to creating a bond issue and issuing the bonds thereto as well as other procedural matters relating to the school board.  The duties of a special education lawyer are substantially different than these, and in fact most school districts employ separate counsel from their general counsel who practices "education law" to represent them in matters relating to special education. 

As you see, my approach to this matter is to be as proactive as possible and I encourage parents to contact me as early as possible in the process if they encounter any resistance from the local school district(s).

-Thomas G. Glick