Legal penicillin for special education: a veteran lawyer's counsel for administrative actions that can minimize your risks

School Administrator, March, 2003 by Carl Johnson

The burdens and frustrations occasioned by litigation related to the Individuals with Disabilities Education Act fall on public school employees in different ways. Although superintendents are rarely on the front lines of special education litigation, their consternation with the process can be as deeply felt as that of the classroom teacher who spends several hours on the witness stand explaining and defending a three-year-old individual education plan.

In larger school systems especially, the first time a superintendent may hear about the case is when he or she is presented with a request to approve a legal settlement that, more often than not, includes a significant financial component. The frustration inherent in being the last one to know is compounded by a feeling of helplessness, loss of control and inability to influence the course of events. If called upon to explain or justify expensive settlements, superintendents often are armed with little more than unsatisfying platitudes: "We shouldn't have to, but our lawyer says we should settle," or "It will cost us more to win than to settle."

The bad news is that special education litigation is not on the wane. The good news for superintendents is that they can make a difference in minimizing their school district's exposure to special education claims and controversies.

Thoughtful Hiring

The single most effective strategy for reducing exposure to special education claims--in fact, to most legal claims--is to hire personnel intelligently. No one is likely to dispute the wisdom of that advice in the abstract, but what does it mean in this context? Among other things, it means hiring well-qualified teachers who also will make excellent witnesses.

Fortunately, good teachers will often but not always make good witnesses, and special attention should be paid to traits that are likely to persuade a hearing officer or judge that the employee knows his or her business, understands the requirements established by the law and knows how to use the former to meet the latter. Good teachers know their subject and how to present it to their students; good witnesses know how to convince a hearing officer that they know their subject and how to teach it.

Of course, a marginal teacher is not likely to make an impressive witness. However, even relatively inexperienced teachers should be able to point to evidence of an honest, sustained and well-considered effort to provide appropriate service to students with disabilities, If there is no evidence of a good-faith effort to serve the student, a dazzling presentation based on what could have been done for the child (or on promises to do better) will not rescue the school district in a due process setting. Conversely, a herculean instructional effort may not carry the day if the efforts of the school staff are not adequately documented and reported clearly and convincingly.

Ultimately, sending the right message to the due process hearing officer has less to do with being right than with demonstrating the right approach to the challenges of educating students with disabilities. More often than not, employees who are open to fresh ideas, who are sympathetic to parental concerns, who are reasonably current in their fields, and who manage their cases in an organized, systematic, well-documented way will serve the district's legal position and its students well.

Even though school personnel are not required to be medical doctors or clinical psychologists to do their jobs well or to make good witnesses, the world of due process litigation is heavily laden with legal standards, educational theory and clinical jargon. School board witnesses and teachers, in particular, should have a solid command of the basic vocabulary of special education, the principles underlying IDEA and the purposes and limitations of the various tests that are used in the evaluation process.

Thus an effective school district witness must be competent and able to demonstrate competence in a due process hearing. The best such demonstrations begin months or years before the hearing itself by maintaining conscientiously prepared contemporaneous documents, including, of course, the individual education plan itself.

Many of the same considerations apply to hiring school administrators. A well-informed and engaged principal who projects a sincere commitment to IDEA compliance can tip the balance in favor of a school district in a close due process case. By the same token, a hostile or disinterested administrator can negate a positive hearing performance by other school witnesses. More importantly, the parents' perception of the principal's concern for their child and of the principal's commitment to meeting the requirements of the law is often the deciding factor for parents who are weighing the pros and cons of pursuing legal action against the district.

In short, because of the nature of the position, the school principal can help or hurt the school system s cause more than any other district employee. Personnel administrators, superintendents and school boards must be prepared to reject applicants for principalships who are not temperamentally and intellectually prepared to meet the significant personnel and professional demands that are presented by the law.