Peter Nickles Picks The Wrong Fight Over Special Ed
Last week, the District finally did something to unclog the special-education system. Attorney General Peter J. Nickles declared war on special-ed lawyers. The District filed a lawsuit in U.S. District Court against an attorney handling a special-ed case.
The charge: Attorney John A. Straus had the audacity to ask for his legal fees to be paid. The Straus legal narrative went like this: In the summer, he wanted a psych evaluation for one of his clients. The District granted that his client could get a private evaluation and that the city would pay for it. In it's letter, the District left out the part about paying Straus' attorney's fees. So Straus filed a due-process complaint.
Now the District is suing Straus saying his wanting to be paid is frivolous. According to the Washington Post account, Nickles says this lawsuit "is likely the first in a series of actions to push back against what he described as a 'very aggressive plaintiff's bar' in the District that has flooded the system with special education actions."
Nickles' aggressive move is a troubling one for many reasons. Before he joined the Fenty administration, Nickles had a history of doggedly fighting on behalf of the city's most vulnerable citizens. He was behind a 30-year class action case on behalf of mentally-ill residents and has stood up for prisoner's rights. In 1998, he received the District Bar Association's Pro Bono Service award. You wonder if Nickles the AG would sue Nickles the Pro Bono Maverick.
I'm sure Nickles the Pro Bono Maverick would have appreciated special-ed lawyers. These lawyers do not have glamorous jobs. They work with stressed parents in a system that doesn't work. Victory doesn't come in months, it comes in years. And those victories are small—like finally getting your client's son evaluated or getting the child into a school that will actually teach him.
I had a long series of talks with a parent of a special-ed child a few years back. The mother was frantic, obsessed, and filled with despair. All she wanted was a good education for her son. She'd settle for an evaluation and a decent school that didn't just warehouse her kid. And she was getting nowhere. I don't think I've ever talked a constituency that felt more aggrieved.
A school social worker told me that if a student is assigned to special ed they will be consigned to teachers that won't expect anything out of them, that they will continue to graduate year after year no matter what.
We should applaud the parents and lawyers who fight for these kids to get a decent education. Shouldn't the lawyer in question get paid for his work?
Until Michelle Rhee takes a broom to special-education classes and starts all over, what are the parents supposed to do? In 2003, DC Appleseed began to study special ed and produced a serious of damning reports and substantial solutions.
Appleseed analyzed the myriad problems with DCPS' special education failures and produced a thorough report. I doubt much has changed.
In the executive summary's first graph, the non-profit's investigative team concluded:
"Despite DCPS' recent concerted efforts to improve the dispute resolution system, much repair work is still needed. And until that work is done, DCPS will continue to divert significant resources away from programs for students and into costly, protracted adversarial proceedings with parents and lawyers.
Without question, the lack of appropriate special education programs and services at the local schools is at the core of most disputes. And as long as available services fail to meet the pressing needs of students throughout the District, disputes are inevitable, and the District will continue to be forced to expend disproportionate resources on subsidizing private school placements, related transportation expenses, and the costs associated with formal due process hearings."
The summary goes on to point out that DCPS is often the engine of the legal gridlock. It routinely failed to address parents' concerns in a timely manner. Parents grew to mistrust the system. "We determined that there are far too many due process hearings in the District; that the costs relating to them are already much too high and are escalating; and most importantly, that, as a result, the special education needs of too many children are not being met."
In the summary, it cited a case that surely is too typical and far outweighs the kinds of "frivolous" lawsuits Nickles plans to target. In January 2001, parents requested DCPS conduct an evaluation of their hyperactive son Joshua. Despite repeated problems, four months elapse and still DCPS has done nothing. In May, the parents hire an attorney and the attorney files a request for mediation and a due process hearing.
After more delays, the court orders DCPS to evaluate Joshua. Still more delays. Now it's a new school year. Joshua gets suspended for fighting in school. The mother now has to make daycare arrangements for her son. By January 2002—a full year after that first request—a new hearing date is scheduled.
If you were Joshua's parents and lawyer, wouldn't you be frustrated, angry, full of despair, distrustful, hurt, and freaked at the process? Wouldn't you start fighting every little thing because a victory is still a victory no matter how small? Wouldn't you start hating DCPS and its lawyers? They are preventing your son from receiving a simple evaluation so somebody can figure out how to get him to stop fussing and fighting. You would be furious.
You may start to think that your son will never make it, will never get an education. He's too young for suspensions. He's too young to be doing so poorly in school. Finally, after that hearing, a private evaluation is ordered (at taxpayer expense) and it's determined that Joshua has ADHD and severe reading and comprehension deficits. The psychologist says the delay in getting Joshua evaluated has been extremely harmful. An Individual Education Plan (IEP) is ordered for Joshua. After two delays, an IEP meeting is held but the school's shrink and learning disabilities specialist fail to appear.
After more delays, it is not until September 2002, that Joshua's needs get a full hearing. A hearing officer orders that he be placed in a private school ($55,000 each year) and for the city to pay attorney's fees.
Great story. An all too typical story.
I have no idea what Nickles or Rhee are doing to fix the hearing process. But I hope it's more than going after attorney's seeking compensation for the hard work that they do.
A respected education expert has studied and vetted a series of strategies to decrease the drop-out rate. The strategies range from early childhood literacy to individualized instruction. I doubt the city's schools excel at any one of these strategies.
Jay Smink is the director of the National Dropout Prevention Center/Network. These are his strategies. He works with school systems across the country. In an interview a few months back, he told me that more school systems should develop IEPs for all students not just special-ed students. That it should be an established part of the system, that it is a great way for teachers and parents and students to set goals, to keep everyone on track. Wouldn't that be nice if the District could do that for its students?
Or would Nickles sue the first lawyer to file that request?
*photo by Darrow Montgomery.