Maneuvers: Planning Before You Complain

Body: 

by Brice Palmer
Boxer waiting for foodJoie de vivre (Joy of Life) with a side order of ugh.

First, my apologies for the delay of this article. The last few weeks have given me a roller coaster ride of ups and downs in the emotional sense.

It all started with researching my old client files and old COPAA discussion list conversations for this series of articles about reading cases, writing complaints, and finding ways to resolve our differences with the school district. I wanted to see what sorts of problems over the years that parents have had with advocating for their children’s special education. Of course none of this is a scientific or even a complete bit of research. My client files reach back to 1996 through today, which spans the 1975 Education for All Handicapped Children Act (EAHCA), IDEA 1997, and IDEA 2004.   

And that leads us into the purpose for this article.

Thank you for the wonderful article suggestions made after our last article discussion. Some of the suggestions overlapped with respect to the broad category of writing complaints, state administrative complaint procedures, and due process hearings.

For the next few articles we will combine those several suggestions and talk in general about complaints, state department of education investigations, due process hearings and Office of Civil Rights (OCR) complaint and OCR determination letters. Each of them have a lot in common.

Today, though, we are pushing one question to the head of the line. The question was about filing a complaint without “giving away your case.” This is a great question because it ties directly with our last article about how to read cases and how written case decisions are structured. This topic is a matter of case strategy and tactics. Should we hold our cards close to the chest or should we lay the whole thing out

The best answer to the question about filing a complaint without “giving away your case” was expressed by an attorney member of COPAA at one of the early annual COPAA conferences. I cannot remember who it was. I think it was Wayne Steedman. That attorney began his break-out presentation with these words:

“There are no Perry Mason moments in special education hearings” [1]

There are no Perry Mason moments in special education complaints. Perry always won his trials in no small part because at the last moment he pulled a surprising piece of evidence out the hat that acquitted his client. Don’t count on that gambit in special education cases.

Why? Because the complaint you filed against the school district will go immediately to the school district’s attorney. And that attorney will read the student’s education records to find every document, email, and scraps of notes looking for evidence that will crush your case. The school’s attorney will interview every school district employee that had anything to do with you and your child. The school’s attorney will also craft their hearing tactics and strategy well in advance of the day the hearing begins.

How do I know that? Because all special education defense attorneys have a manual published by LRP that tells school district attorneys exactly every step they need to take to defend their client school district against a parent complaint. The school district’s attorney will make certain there will not be any Perry Mason moments.

So what did my research of old files reveal?

Prior to Weast v. Schaffer (4th Cir 2004), resolving differences with a school district was generally less contentious than today. I’m not saying it was easy. I am saying that before the landmark case of Weast v. Schaffer (4th Cir 2004) a working relationship with a school district was more in line with the intent of the IDEA, which encouraged informal resolutions through the Team meeting procedures. Now, school districts seem to be consistently on guard for a complaint filing. The 4th Circuit in Weast changed the burden of proof to the party who initiated the action (complaint for due process). In fact on one occasion shortly after Weast v. Schaffer, one of the participants in our after article webinars and I attended an IEP meeting for her child – the LEA looked us square in the eye and dared us to file for a due process hearing.

So should we file a complaint without “giving away the store?” My opinion is no. Write your complaint with every piece of credible evidence you have that shows the school district’s attorney that you have a strong case, you know what you are complaining about, and that it will be better for the school to mediate or resolve the complaint before the hearing (or state administrative complaint) investigation.  Follow the formula for how a court or hearing officer decides a case – reverse engineer that formula for laying out and proving your case in your complaint.

An Aesop's Fable

A Gentleman, having prepared a great feast, invited a Friend to supper; and the Gentleman's Dog, meeting the Friend's Dog, "Come," said he, "my good fellow, and sup with us to-night." The Dog was delighted with the invitation, and as he stood by and saw the preparations for the feast, said to himself: "Capital fare indeed! This is, in truth, good luck. I shall revel in dainties, and I will take good care to lay in an ample stock to-night, for I may have nothing to eat to-morrow." As he said this to himself, he wagged his tail, and gave a sly look at his friend who had incited him. But his tail wagging to and fro caught the cook's eye, who, seeing a stranger, straightway seized him by the legs, and threw him out the window to the street below. When he reached the ground, he set off yelping down the street; upon which the neighbors' dogs ran up to him and asked him how he liked his supper. "In faith," said he, with a sorry smile, "I hardly know, for we drank so deeply, that I can't even tell you which way I got out."

Moral of Aesops Fable: Those who enter by the back stairs must not complain if they are thrown out by the window.

Brice 
 

[1] Perry Mason is a fictional character, a criminal defense lawyer who is the main character in works of detective fiction written by Erle Stanley Gardner. The character of Perry Mason was adapted for motion pictures and a long-running radio series. The radio series were adapted for television by CBS television. That series ran from 1957 to 1966. The character of Perry Mason was played by Raymond Burr (pictured below).  Source, https://en.wikipedia.org/wiki/Perry_Mason

 

There are no Perry Mason moments in special education complaints.
Boxer waiting for food

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