Success, in terms of a Due Process Hearing, consists of any small win, no matter how minuscule. I say that, having gone to many hearings, because the parents seldom win. There are hearing officers in Texas who will not rule in favor of parents even when the parents are right. Unfortunately, the courts in Texas will back the decisions of the hearing officers almost ninety percent of the time. Judges tend to believe that all people working in the field of special education are good, decent individuals who are helping society. Many of them are. In addition, the schools are funded with our taxes so hearing officers and judges want to find for the districts and save the public’s money. Therefore, those few attorneys who practice special education law must pick their cases carefully. Even then, hearing officers will rule in favor of the districts in the face of very logical and well-documented arguments of parents. And, one can never forget the most important rule of litigation–people lie. Hard to believe? Police officers, administrators, teachers, ministers and, occasionally, parents can swear under oath and then lie.
Having said all of that, I would like to discuss some wins. Keep in mind, the deck is stacked against the parents who bear the burden of proving what is occurring in the schools. As a result, the schools must be "way off base", flagrant and obvious about their violations of the law in order to lose. The following are examples:
In South San Antonio school district, one school held A.R.D. meetings in the teacher’s lounge while teachers and students, unrelated to the meeting, were in the room. Moreover, they held several meetings at the same time. There were other issues involved in this hearing, but this one issue was the most outlandish. Worse yet, the district took the case to due process without an attorney. They lost.
. . . . . . . . . . . . . . . .
In Northside I.S.D., a hearing officer found that a school district had violated the law by allowing a teacher to mistreat (scream at, yank and refuse food to), a severely disabled young man who had mental retardation and epilepsy. This young man could not walk. He could not feed himself. He could not perform any voluntary movements without assistance. His mental retardation prevented him from advocating for himself. The principal was aware of the situation and did nothing. If not for the integrity of another teacher in the school, the mother would never have found out why her son no longer wanted to attend school. The boy would begin screaming as he approached the campus. Once the student entered the classroom, he would immediately go to sleep. He could not protect himself in any other way so he slept. The student would sleep through lunch and into the afternoon. The hearing officer heard the testimony and found in favor of the parent but added that the teacher’s behavior did not quite rise to the level of child abuse. (It shocked me that the hearing officer would even acknowledge the possibility of child abuse in her ruling.)
. . . . . . . . . . . . . . . .
One hearing, in La Pryor I.S.D., ended within the first half hour. The student who had epilepsy and learning disabilities, testified about what he was actually doing in school. Not one item could be correlated with the student’s I.E.P. or the designation of his classes. He wrote a paper about marsupials in Australia for his Wildlife Management class. The young man was often not in the placement where he should have been or he would be off campus with general education students watching the general education students do things for another class.
Fortunately, this young man had the "mother from hell". That mother held the school accountable. If not for this woman, the district would never have become handicapped accessible and her son would not have received any type of education. La Pryor existed in the Dark Ages where students with disabilities were hidden. Well, this student would not be hidden or uneducated. His mother did her best to make sure that her son was included in general education classes and activities. Every child with a disability should have a mother like this one in La Pryor. If all children with special needs had a mother like her, the system would change. Unfortunately, most parents trust the schools or they are too afraid to fight.
At any rate, after this student’s testimony, the attorneys for the district suggested a break. We went into another room and settled the case.
. . . . . . . . . . . . . . . .
As an attorney, I feel proud of the successes and try to learn from the losses. The key to all of the wins has been expert testimony and/or insider testimony. Even with that, it has been my experience that the districts can win if they can present a united front and avoid the truth. Since I have worked in many of the local districts, I often receive inside information. I cannot reveal my sources. However, I have been told of attorneys instructing district personnel to lie. I have been told about district administrators who threaten and intimidate potential witnesses to the point where, in one case, a paraprofessional moved overnight to another city. It’s scary. However, it is also hearsay and second-hand information and not allowed in a court of law.
Since the districts are so committed to winning, I try to convince my clients to negotiate a settlement. I suggest mediation. We often come to an agreement in the mediation process. However, it has been my experience, that parents are less satisfied with a negotiated settlement that offers a better education than is required by law than with a due process hearing where their attorney fights hard but, in the end, they lose.
Other successes come from unusual means. Recently, a student who was her class president for all four years of high school, a very popular girl, was told that she would not be graduating. She had failed to pass the TAKS test, the standardized test required for graduation. Her mother came to me in tears. I asked a few questions about this student’s academic career. She had a history of problems in Math. In fact, on some documents, the teachers would comment that they had to give her extra projects in order to bring the student’s grades up to passing. Similar documentation was available from elementary school. The student worked hard. She would seek out assistance. Unfortunately, extra projects would not take care of the underlying learning disability that had gone undiagnosed for many, many years. At my request, the student was quickly assessed, found to have a learning disability in Math and excused from passing the TAKS by an A.R.D.C. She graduated with her class.
In another case, a lawsuit was filed against the district. The superintendent accepted service but failed to inform the school’s attorney. Shortly thereafter, I asked for a default judgment which was granted. The school’s attorney finally responded after the judgment against the school was entered and long after the thirty days allowed to request a new trial had passed.
In the end, I accept any win as a success and , as a law office, we have had many success stories to tell.
All information contained within this web site is provided for information purposes only and does not constitute legal advice. No attorney-client relationship exists from the use of this web site, and an attorney-client relationship may only be established by contracting directly with Karen Dalglish Seal, Attorney at Law. Intellectual property within this Website are copyrighted and may not be reproduced in any form without the express permission of Karen Dalglish Seal. Licensed by the Supreme Court of Texas. Not certified by the Texas Board of Legal Specialization.
|Site Map | Contact Us | Last Updated 10/17/2010 53|