It is not always about collaboration.

As I finish an educational due process hearing where a family was forced to pursue a week-long hearing in order to get their special needs child a desperately needed residential placement, I remember again that life is not always about collaboration. Sometimes it is about standing up to Goliath and standing up for what your child needs. Most parents start off assuming that the public school system will tell them everything they need to know in order to secure a good program for their child. I started off that way too.

I knew nothing about education law before my first case. I didn’t even have children. My first case involved a child with Dyslexia in 11th grade. He could not read or write and had he ever been made eligible for special education. He had never passed a standardized test. His parents did not have the funds to get an attorney. They had repeatedly asked for help or assistance from the school. Now that their child was 16 he was beginning to talk about dropping out, which apparently the school had informed him was an option. Most recently he had gotten in trouble for smoking on campus and was up for a year of expulsion. I was a health care and corporate attorney at the time. I had just started in a new practice and a good friend of mine, Dorene Philpot, told me that she had an education referral for me and I thought I should just “try it.” Her thoughts were that my health care law background and work in child advocacy might make this a perfect area for me. The catch was that the parents could not afford counsel, but this was civil rights and so I could recoup my attorney’s fees if I was successful.

So I took it. I began to read the requirements of the Individuals with Disabilities Education Act (IDEA), the requirements for eligibility for special education and the requirement to provide a Free Appropriate Public Education (FAPE). I called the child’s physician and then the University of Chicago. I asked the University of Chicago if they would do a full psychoeducational evaluation for this child as the one the parent had gotten showing a high likelihood of Dyslexia was simply from a local tutoring service. They were willing to do the evaluation at a lowered cost for the family. I looked through the child’s grades, his basic writing, and I even had him try to read to me. I was in a state of shock. How was this child not eligible for special education? I waited for the University of Chicago to finish its testing.

It did. The results were clear. The child had profound and significant learning disabilities in reading and writing. I filed for my first due process hearing, assuming that something like this would settle quickly. Right? I mean who would fight about this type of thing? I was surprised. Fully and utterly surprised by what happened. Perhaps those words don’t even begin to express my confusion. The school’s attorney instead of being helpful or collaborative was aggressive and seemed determined to simply make me and the family go away. It was utterly unfamiliar to me. Yes, attorneys are aggressive, zealous, and assertive, it’s our job, but generally, there is a professional courtesy and this was a case simply attempting to get special education eligibility for a child? One with clear needs. The attorney insisted to me that the child was a behavior problem. This individual also made numerous comments to me about the blight of the school system and that parents and children like “these” were one of the “hardships” and that “parents should take responsibility.” I was dumbfounded. This was not at all what I expected. The opposing counsel instead of trying to work through things, engaged in a full battle and intended to use up enough time that I would abandon this area of law. It was truly unlike anything I had expected.

In truth, I was scared to death of going to a due process hearing. Scared. I felt sure that I must be misreading the law, misunderstanding eligibility, and had never done an educational due process hearing. I mean, if I was correct on the law, why would they be fighting me so hard? I spent hours reading cases, calling attorneys in other states, and speaking with the child’s providers - if I was going to do this I had to be sure. Honestly, I wouldn’t have done the hearing or even billed for my services if I hadn’t been forced to do so. I plead with the opposing counsel simply to give this child eligibility and a program and I would even waive my fees. That’s how scared I was folks.

I went through the hearing. We won. The child received compensatory services, eligibility, and an IEP. I and the child’s family were elated. The school paid our attorney’s fees. And then the next case came, it was a child with cancer. The school wouldn’t provide him services. I started the cycle again. At some point, I realized that the world is not always as it appears to be at first glance. Not everything is always about collaborating no matter what. Sometimes it is about negotiation when an issue can be negotiated. As someone who settles around 95% of my cases, I believe that everything is negotiable - until it is not. I still hate hearings. I do. Parents that I represent will only do them when we have no other option and are absolutely unable to secure what the child needs outside of one. But sometimes this must be done.

As parents, advocates and attorneys, there are times when collaboration and negotiation don’t work. Most of the time by the time a parent gets to me they have exhausted their toolbox of ideas and are desperate. I mean let’s be honest here calling an attorney is terrifying most of the time. It is especially terrifying because we all want to be liked, we all want others to work with us. Me included! We want to be able to walk into a school and get what our child needs. But this is not always going to be possible and it is not about a parent who is not collaborative.

It is about a parent who says here is what my child needs. It is what the law requires. I am not going away nor am I going to be chased off for simply asking for what my child is already supposed to be entitled to. Because sometimes it is standing up for what you know is needed and necessary. Even when it is hard.