City Desk

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.

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  • freshman mistake

    In the second paragraph, change "it's" to "its."

  • freshman mistake

    In the fourth paragraph from the bottom, take out the apostrophe in "attorney's."

  • Don

    The DC Taxpayers should not have to pay for those lawyer fees and I support Nickles's actions.

    It is unreasonable to request that DC Taxpayers must pay for a child's private medical evaluation. As a parent of a DCPS student I would never, under any circumstances, utilize DCPS medical evaluations. When you stop to think about what makes more sense, working with your trusted family physician who knows the child's medical history or working with an unknown, over-taxed bureaucracy to maintain the health of your children, there's one answer which is remarkably obvious. Nor is health insurance a factor in this situation, given that there are charity hospitals that work with special needs children.

    At some point every parent has to make the decision whether or not to send their children to private school. Maybe it's age 3 or 4. For most of my friends it's when they left 6th grade. It's a major decision and for many of these kids not getting the education they need, the question in my mind is, really, when do you decide that there are more proactive options than suing for money after the fact?

    I've spoken to a handful of parents who have told me stories of how to game the system with phony diagnoses to get special treatment. I counter that those stories have made me, as a DC Taxpayer, "frustrated, angry, full of despair, distrustful, hurt, and freaked at the process." Not in the way Jason suggests- I'm distrustful of the lawyers in these cases.

    Having read as much as I can about this case, I can attest that there is something different about it that makes it frivolous. There are dozens of such suits filed that are not considered frivolous enough to counter sue. If this is not part of a landslide of countersuits then it's safe to say it's unreflective of the DCPS situation. Discovering that difference is the key to this case, not wild hyperbole about future actions.

  • Kate

    I don't know who you've been talking to but your facts are all wrong. The law does not require a school system to pay for medical evaluations, but its does require them to pay for educational evaluations. You might also want to keep your mouth shut until you sit and talk to teenagers out of Anacostia and Northeast D.C. who are being graduated by the loads and reading on a 3rd grade level. These children have no future and DC's answer is to jail them or genterfy their neighborhoods so the families have to move out. And by the way lawyers are paid under a fee shifting law and that type of law in not uncommon in many different areas. . .VA, SSA, EEOC, and etc. Further how can you attest that something is different about this case? Are you a lawyer working on this? Are you working with Peter Nickels? Until you know the facts you should stay quiet.

  • Don

    Kate, Your post seems to be a response to something totally different than I wrote- and different than what Jason wrote. I don't think I mentioned one single fact in my response, merely opinion. So by that regard, since I posted no facts, I cannot have facts wrong.

  • Jason Cherkis

    Don: Ugh. You kinda sound like Reagan talking about welfare moms (you know "welfare queens driving big cadillacs"). No one has a problem rooting out people that break the law and try to abuse the system. But you seem to emphasis those kinds of cases over the overwhelming evidence that DCPS doesn't do its job when it comes to special ed kids. Nickles should go after the people that truly abuse the system or actually try and fix the system itself.

    A quick google search revealed that the attorney targeted by Nickles has won some cases against DCPS and seems to mirror very well what Appleseed wrote in its report:

  • DC Truth

    Yet another is infected with the Fenty touch. Sheesh.

    Why is that when "good" people go to work for Fenty, they become heartless assholes?

    Dan Tangherlini, one of the best people to work for/with at the Department of Transportation (DDOT), now despised (and feared) by just about every agency head in DC government. And quite honestly most can't even stand to be around the guy. The same goes for Neil Albert, Michelle Rhee and now Peter Nickles.

    Further symptoms of the Fenty touch includes rudeness, arrogance, developing an allergy to the concept of affordable housing, becoming way too defensive when questioned, witholding your agency's spending data from the city auditor, and in some cases becoming a public relations-feen. (Question? Can someone remind me what has Michelle Rhee done to be on the cover of Time Magazine???)

    Fenty gives his croonies never before seen salaries, and they drink the Fenty mambo sauce and become his bullpen bitches.

    I'm so glad Emeka Moneme told Fenty to kiss his ass!

    The cure for the Fenty touch?

    Not voting for a person because they merely knocked on you and all of your neighbors' doors!

  • Doug

    As an attorney, I support rooting out and sanctioning lawyers who bring "frivolous lawsuits". But why is the focus so often only on the plaintiff's lawyer? I would be a very wealthy man by now if I could recover damages against defense lawyers who plead "frivolous" defenses and asserted facts without any foundation. Many lawyers on both sides would be far more careful if public scrutiny and court imposed penalties were directed at lawyers on both sides.

  • Megan

    As a Special Education Coordinator at a DC Public Charter School, I strongly support Nickles' action.

    In my experience, most advocates from Brown and Associates don't know the kids or their families, are unresponsive to attempts to collaborate, and seek to push every student into a private placement. Think about it...without due process complaints, they don't get paid. So, even when results could be obtained more quickly and collaboratively through mediation or other means, they rarely agree, even when it's CLEARLY in the best interest of the child. I have had countless parents of STUDENTS WITH SPECIAL NEEDS (not "special ed kids. People first language. Look it up), complain because their advocates don't return their calls and are routinely 45 minutes or more late for meetings.

    Yes, students with special needs deserve better services, and there are great advocates out there working with DCPS to make it happen. These guys are slimeballs, though.

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