Surefire Ways To Circumvent Costly Lawsuits

by Beverley Cush Evans and James E. Henderson

All educational leaders—not just special educational administrators—need to make it their business to know special education law.

Superintendents who turn over the reins of running the special education program to a special education department, an intermediate unit, a county school's office, or a private vendor to absolve themselves of the obligation to understand special education law and operational imperatives are only fooling themselves. When you are sued, you cannot point your finger to the anointed person or agency and say, "But I thought she knew this!" The axiom that "one can delegate authority but not responsibility" clearly applies here.

We have compiled a Top 10 list (with apologies to David Letterman) of the most frequent reasons school districts are sued for due process. We suggest what school system leaders can do to prevent the violations from occurring, as well as a brief discussion of why those violations occur so frequently.

Accepting Input

Invitation to be sued No. 10:
Give a student's parents or guardians the impression that you, as a school official, have all the answers as to what's in the best interest of the student (and that they have none).

Prevention strategy: Conduct the individualized education plan and other meetings with parents in a true team spirit (and really mean it!), recognizing that each team member has important viewpoints that must be considered to make the best decisions on behalf of the student.

Invitation to be sued No. 9:
Support those classroom teachers who say that all students—regardless of background, ability, or needs—must be treated equally and that's done by holding them to the same achievement and time standards.

Prevention strategy: Make sure all teachers are aware of the mission statement and policies of the district and have learned their roles and responsibilities to support students who have been identified as having special education needs. Make sure that general education teachers participate in IEP conferences and retain a copy of the IEP goals. There is nothing worse than having a general education teacher say, "I have no clue what his goals are!" (or, worse yet, "I had no idea what his goals were").

Invitation to be sued No. 8:
Support those classroom teachers who say, "I don't have the time to make accommodations."

Prevention strategy: Repeat after me, "It is your job—make time!" Provide chances for teachers to brainstorm ideas and strategies to make better use of available time and resources. Also, provide opportunities for your teachers to meet with teachers from schools and districts who have successfully dealt with this challenge.

Policy Compliance

Invitation to be sued No. 7:
Support those teachers who say, "This kid doesn't fit in my classroom; inclusion isn't for everybody."

Prevention strategy: You need to say, "Diversity, diversity, diversity. In-service, in-service, in-service." Also, see items 1 and 9.

Invitation to be sued No. 6:
Don't follow your own board policies and administrative procedures.

Prevention strategy: Regularly review them, maybe with the group in item 5 and with all others who need to know them, so they don't collect dust on school administrators' bookshelves. It may amaze you what's really in there and what your responsibilities are!

Invitation to be sued No. 5:
Assume your school district attorney knows all about special education laws.

Prevention strategy: School attorneys don't know everything (despite what you've heard in the past election's rhetoric). It's the school leader's job to know the laws. We recommend pulling together a team of people including parents, teachers, administrators and other individuals having knowledge and stake in special education activities to regularly review litigation and legislation and to monitor the district's compliance.

Invitation to be sued No. 4:
Assume an accommodation for special education has to cost too much and therefore the district can't afford it.

Prevention strategy: According to special education law, money is not an excuse, though that may not be what cost-conscious politicians want to hear. When people of good will work together with children's best interests at heart, the group will come up with creative and viable solutions that meet students' needs and don't break the budget. Also, see item 5 for a group strategy.

Intervention Practices

Invitation to be sued No. 3:
Assume discipline policies and procedures are omnipotent and supersede special education law.

Prevention strategy: Accept the fact they are not and they do not! Have staff trained in positive approaches to support behavior. Know the steps of support intervention and the law.

Invitation to be sued No. 2:
Give a parent the impression that if the service is not being provided in the district, "we don't do it!"

Prevention strategy: If the student needs it, the district provides it. For strategies, see item 4.

Invitation to be sued No. 1:
Segregate students with special needs into self-contained classrooms or separate centers based upon students' label, not needs.

Prevention strategy: This is an age-old "chicken-and-egg" problem, but what it comes down to is the IEP. The best way to avoid this problem is to make sure the IEP is done first so that needs are identified before determining the best placement to meet those needs.

Suggested Resources

So why do these legal challenges occur so frequently? Simply put, ignorance—of the law, of responsibility and accountability, and sometimes of ethical obligations. Solutions come from seeking out information and experience dealing with special education students, parents and advocates (preferably not defending a lawsuit!).

Resources that may be useful include your state department of education, the state or regional education law center, professors of special education at local colleges and universities, and the resource guide, Education Rights of Children With Disabilities, from the Center for Law and Education, 955 Massachusetts Ave., Cambridge, Mass. 02139.

Beverley Evans is an assistant professor in the Department of Counseling, Psychology, and Special Education at Duquesne University. James Henderson is dean of the Duquesne University School of Education and director of the Interdisciplinary Doctoral Program for Educational Leaders.