Legal Penicillin for Special Education

A veteran lawyer’s counsel for administrative actions to minimize your risks 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.

The superintendent can promote intelligent hiring by insisting on the use of hiring criteria designed to evaluate the knowledge, skills and aptitudes that are critical for success in the classroom and the courtroom. The superintendent also should encourage sensible innovation in the hiring process by including appropriate special education staff on interview committees, by targeting and aggressively recruiting recent college graduates with outstanding potential as well as battle-tested veterans, and by selectively employing noneducators (therapists and psychologists) to support the primary instructional function of teachers.

Appropriate Dismissals
Superintendents must be prepared to discipline or terminate staff members who refuse to rise to the challenges presented by IDEA. Of course, termination ordinarily should be reserved for cases involving willful, repeated or egregious failures on the part of the employee. The greater good is not served by making an example of a generally capable and conscientious employee.

On the other hand, a case of professional neglect or incompetence is much easier to establish in the special education context than elsewhere. Even when a math or history teacher is widely regarded as ineffective, few objective measures of competence are available by which to assess or prove the quality of job performance.

By comparison, a special education teacher, tenured or not, who consistently fails to conduct IEP meetings, arrange for appropriate evaluations or meet mandated deadlines is presumptively (if not conclusively) derelict. Decisive disciplinary action in such cases will eliminate a direct source of legal liability and will send an important signal to other employees about the superintendent’s commitment to compliance with the law.

Proper Tone
School districts and their superintendents are beset by never-ending and ever-increasing demands on their time, attention and resources. Under such circumstances, the temptation is to view (and treat) special education concerns as simply one of many obligations, all of which are deserving of equal priority.

Philosophically, such a perception is understandable and even defensible. Special education is arguably no more important to the success of the overall educational endeavor than are sound career technical education programs, improved teacher training and evaluation initiatives and the implementation of sound financial practices in conducting the school district’s business.

However, when evaluated from a risk management perspective, special education compliance issues loom larger than most. In many districts, special education disputes generate far more litigation (and divert more dollars to attorneys’ fees) than do employment-related claims (termination challenges), tort actions (personal injury claims based on allegations of negligence) or commercial claims (breach of contract).

Even though it claims a disproportionate share of legal resources, special education concerns often fail to command commensurate attention from educators, especially at the school level. Until they are drawn into the due process fray, school personnel have little appreciation for the cost or consequences of noncompliance and comparatively little incentive to give special status to exceptional education concerns, particularly in the face of competing, seemingly more pressing demands on their time and energy. These facts of life mean that most school employees will not assign priority to special education unless they have a reason to do so.

School teachers and support personnel ordinarily will take their cues from the principal, just as principals will be influenced in their approach to the job by their perception of the superintendent’s priorities. If special education is relegated to stepchild status by the superintendent, a haphazard and half-hearted effort in the classroom likely will follow. Conversely, a superintendent who demonstrates a strong personal and professional commitment to meeting the spirit and the letter of the law can expect to see a positive ripple effect almost immediately.

The superintendent’s commitment can manifest itself in many ways:

* By learning more about the field of special education and taking an active part in the process of due process;

* By making ongoing training in the field mandatory for both special and regular education teachers;

* By including and insisting on aptitude, training and experience in the field of exceptional education as a hiring, evaluation and retention standard for both special and regular education employees; and

* By emphasizing to all employees through word and deed that IDEA compliance is not a goal, but a job requirement.

Some years ago, an otherwise capable and conscientious principal testified that, if forced to choose between complying with the requirements of the student’s individual education plan and conflicting, legally suspect provisions of the school system’s disciplinary policy, he would follow board policy. He later admitted to me his answer was the wrong one but explained the superintendent had made it clear that administrators were to adhere to board policy without exception.

That superintendent’s directive was not erroneous, but it may have been incomplete. Board policy always must be to follow the law, and nobody is in a better position to reinforce that message than the superintendent.

A Daunting Prospect
Adhering to the myriad obligations imposed by IDEA requires a sustained, coordinated and comprehensive effort from school administrators, teachers and support personnel. Under the best of conditions, the challenge of meeting the requirements of the law day in and day out is a daunting one.

Committed, pro-active leadership from the superintendent, central-office staff and school personnel involved in the delivery of exceptional education services is needed to maintain the focus and determination for compliance efforts at consistently high levels. That leadership will also minimize the prospects of successful legal challenges to special education programs.

Carl Johnson is a partner in the law firm of Bishop, Colvin, Johnson and Kent, P.O. Box 370404, Birmingham, AL 35237. E-mail: carljohnson@bishopcolvin.com