ABA Section of Litigation, 2012 ABA Annual Meeting, August 2-5, 2012:
The Right Idea: A Critical Look inside the Individuals with Disabilities Education Act (IDEA), its
Effectiveness and Challenges, and the Role of the Lawyer in its Protection and Enforcement
The Right Idea:
A Critical Look inside the Individuals
with Disabilities Education Act
(IDEA), its Effectiveness and
Challenges, and the Role of the
Lawyer in its Protection and
Enforcement
Justice Anne Burke (Moderator)
Illinois State Supreme Court
Chicago, Illinois
Anurima Bhargava
United States Department of Justice
Washington, D.C.
James Downing
United States Department of Labor
Washington, D.C.
Erin Maus
Baker & McKenzie
Chicago, Illinois
This essay offers background information regarding our 2012 ABA Annual Meeting
panel presentation entitled “The Right Idea: A Critical Look inside the Individuals with
Disabilities Education Act (the “IDEA”), its Effectiveness and Challenges, and the Role of
Lawyers in its Protection and Enforcement.” Part I of this essay contains a brief history of the
IDEA.
Part II discusses how the 2004 reauthorization of the IDEA affected the statute’s
enforcement, eligibility determinations, discipline regulations, and procedural safeguards. Part
III considers the future of the IDEA and Part IV concludes with suggestions for how attorneys
can help advance the statute. Our panel will discuss all of these topics in detail.
I.
History and Purpose of Individuals with Disabilities Education Act
a. Education for All Handicapped Children Act and the IDEA
Congress enacted the Education for All Handicapped Children Act (the “EAHCA”) in
1975. Pub. L. No. 94-142, 89 Stat. 773 (codified as amended at 20 U.S.C.A. §§ 1400–1487
(West Supp. 2005)). The EAHCA is the predecessor of the modern Individuals with Disabilities
Education Act. 20 U.S.C.A. §§ 1400–1487 (West Supp. 2005)). Despite the states’ traditional
role in shaping education policy, Congress passed the IDEA in order to further the national
interest in ensuring the education of disabled children. Richard Garda, Untangling Eligibility
Requirements Under the Individuals with Disabilities Education Act, 69 Mo. L. Rev. 441, 451
(2004). Before the EAHCA’s passage, disabled children often received inadequate education. In
some cases, states systematically excluded disabled children from schools. Id. at 452–454.
Congress reauthorized the EAHCA in 1990 and renamed it the Individuals with
Disabilities Education Act. Education of the Handicapped Amendments of 1990, Pub. L. No.
101-476, sec. 901(a)(1), § 601(a), 104 Stat. 1103, 1141–42 (codified as amended at 20 U.S.C.A.
§ 1400(a) (West Supp. 2005)). Congress reauthorized the IDEA again in 1997. Individuals with
1
Disabilities Education Act Amendments for 1997, Pub. L. No. 105-17, 111 Stat. 37 (codified as
amended at 20 U.S.C.A. §§ 1400-1482 (West Supp. 2005)). Congress reauthorized the IDEA a
third time in December 2004. Individuals with Disabilities Education Improvement Act of 2004,
Pub. L. No. 108-446, 118 Stat. 2647 (codified at 20 U.S.C.A. §§ 1400–1482 (West Supp. 2005)).
b. Legal Redress for Disabled Children in Education before the IDEA
Due process and equal protection claims were the primary means for parents of disabled
children to seek legal redress before the EAHCA. William D. White, Where to Place the Burden:
Individuals with Disabilities Education Act Administrative Due Process Hearings, 84 N.C. L.
Rev. 1013, 1015–16 (2005-2006). For example, in Pennsylvania Ass’n for Retarded Children v.
Pennsylvania (“PARC”), parents filed a class action lawsuit on behalf of thirteen disabled
children seeking an injunction against the enforcement of state statutes that excluded disabled
children from public schools. 343 F. Supp. 279 (E.D. 1972). The parents in PARC contended that
the statutes were unconstitutional because they lacked appropriate due process and denied equal
protection to disabled children. 343 F. Supp. at 283. The parties in PARC settled with a consent
decree before the court was able to reach the constitutional issues.
Similarly, Mills v. Board of Education involved plaintiffs representing disabled children
seeking an injunction on due process grounds. 348 F. Supp. 866 (D.D.C. 1972). The court held
that the District of Columbia Board of Education’s conduct violated the Due Process Clause
because the Board denied disabled children access to public education equal to their nondisabled
peers. 348. F. Supp. at 875. The court’s final judgment in Mills ordered procedures that Congress
would later include in the EAHCA and IDEA. White, above, at 1016.
2
c. Significance of the IDEA in Special Education
A critical feature of the EAHCA was the requirement that state departments of education
implement individualized education programs (“IEPs”) for disabled children. Id. at 1017. The
IDEA describes a child’s “IEP Team” as consisting of his or her parents, teachers, and other
school personnel with expertise regarding the child’s education. Id. at 1022–23. The IEP team is
responsible for identifying the child as disabled and creating an education plan tailored to the
child’s needs in accordance with the Department of Education’s guidelines. Id. Additionally, the
statute also mandates due process hearings in instances in which parents believe IEP teams are
not adequately addressing their child’s disability. See 20 U.S.C.A. § 1414(d).
II.
Significant Changes to the IDEA as a Result of the 2004 Reauthorization
a. The No Child Left Behind Act and the IDEA
When Congress reauthorized the IDEA in 2004 it aligned the statute with the Elementary
and Secondary Education Act (the “ESEA”).
Rutherford Turnbull III, Individuals with
Disabilities Education Act Reauthorization, Remedial and Special Education 26, 320–21
(Nov/Dec. 2005). The ESEA was amended a few short years earlier by the No Child Left
Behind Act (“NCLB”). Id. at 321. Congress injected core principles of NCLB into the IDEA—
for example, increased parental participation, student accountability, and scientifically based
instruction. Id.; See also, Mark Weber, Reflections on the New Individuals with Disabilities
Education Improvement Act, 58 Fla. L. Rev. 8, 16–17 (2006).
b. Enforcement
The 2004 reauthorization of the IDEA featured significant changes in how the statute is
enforced.
The 2004 version of the statute calls for greater responsibility in the IDEA’s
3
enforcement and a focus on scientifically based instruction to ensure that disabled children
receive adequate education.
i. Increased Parental Responsibility
The revised IDEA places greater responsibility on parents of disabled children for the
statute’s enforcement. For example, unlike the prior version of the law, the 2004 IDEA requires
parents to notify their local education authority (LEA) about “the nature of the problem of the
child” and the “proposed resolution” of the child’s problem. Turnbull, above, at 322.
Consequently, the statute imposes a duty on parents to specify both their child’s issue and how
the LEA can correct the issue. The amended statute also places a two year statute of limitations
on parents starting from the time when a parent knew or reasonably should have known that an
LEA violated the IDEA. Id.
Therefore, parents must regularly monitor their child’s
development.
ii. Scientifically Based Instruction
The amended IDEA adopts the “scientifically based instruction” method as outlined in
NCLB. Id. at 323. This method requires teachers to use scientifically proven practices in
classrooms. Samuel Odom et al., Research in Special Education: Scientific Methods and
Evidence-Based Practices, 71 Exceptional Child. J. 137 (2005). However, there is considerable
concern about the quality of scientific research in special education. Id. at 138–39. The IDEA
outlines 12 eligibility categories in special education. Several different identifiable conditions are
in each category. The existence of varying levels and types of disability make it difficult to
determine which education practices are scientifically superior when compared to others. Id. at
139.
4
c. Eligibility Determination
In order to find eligibility, the IEP team must determine that a child of qualifying age: has
an enumerated disability, the disability adversely affects the child’s educational performance,
and by reason thereof the child needs special education. Garda, above, at 459. One of Congress’
primary concerns during reauthorizing the IDEA was over-identification. Over-identification
occurs when eligibility criteria lead to students who are not disabled being covered by the IDEA.
Id. at 450. Congress noted a particular concern for the over-identification of minority children.
Garda 450, H.R. Rep. No. 108-77, at 143 (2003).
d. Discipline Regulations
The 1997 IDEA allowed a student’s IEP team the discretion to determine whether the
student’s behavior was a manifestation of his or her disability. Turnbull, above, at 322.
However, the IDEA as amended in 2004 offers only two circumstances in which an IEP team
can determine that a student’s conduct is the result of his or her disabilities. Id. The conduct
must be “caused by, or had a direct substantial relationship to” the student’s disability. Id. The
other circumstance is when the student’s conduct is the “direct result” of the LEA’s failure to
implement the student’s IEP. Id. The creation of the IEP team was a critical element of the
IDEA vesting control in parents and school officials over a disabled student’s education.
However, the 2004 IDEA’s limitation on this authority seems to run counter to the statute’s focus
on increased parental involvement.
e. Procedural Safeguards
The IDEA grants parents procedural safeguards that include the right to participate in all
meetings regarding their child, examine their child’s educational records, and obtain an
independent evaluation of their child. Trumbull, above, at 322. However, the 2004 IDEA states
5
that, with limited exceptions, parents can only receive notice of procedural safeguards once a
year rather than on demand. Id. Also unlike its predecessor, the revised statute permits courts to
award fees against the attorney of a parent who files a due process complaint that is frivolous. Id.
at 29.
III.
The Future of the IDEA
Mark Weber, an influential IDEA scholar, argues that the 2004 reauthorization of the
statute reveals some congressional hostility towards the Department of Education. Weber, above,
at 11. Weber notes that the revised IDEA allows the Secretary of Education to issue regulations
under the law only to the extent necessary to comply with the statute. Id. Moreover, Weber
highlights that the new IDEA is drafted with an amount of specificity that places limits on the
Department of Education’s decision making in carrying out the statute. Id. Weber suggests two
explanations for the hostility in the new IDEA. Firstly, he suggests that Republicans, who
controlled both the White House and Congress at the time of the IDEA’s 2004 reauthorization,
had little faith in federal bureaucracies and were concerned with who might head the Department
of Education under a future Democratic president. Secondly, Weber contends that Congress may
disfavor public education in general as evidenced by the alignment of the IDEA with NCLB. Id.
Political pressures may lead to the narrowing of rights for disabled children in education despite
Congress’ reauthorization of the IDEA.
IV.
How Attorneys Can Get Involved
While many articles discuss the background and effect of the IDEA, few articles discuss
how lawyers can get involved with implementing the statute. However, it is clear that educating
parents about their responsibilities under the revised IDEA is critical to ensuring that IEPs
6
adequately assist disabled children. As a result, attorneys can help further the education of
disabled children under the IDEA by doing the following:
•
Sharing information about parental responsibilities and procedural protections under the
IDEA at local school council meetings, parent-teacher association meetings, or other
school related meetings that parents of disabled children are likely to attend.
•
Creating handouts regarding the IDEA to be placed in reports cards by local education
authorities for parents of students.
•
Representing parents at IDEA hearings or trials on a pro bono or low cost basis.
Our panelists will also discuss additional ways that attorneys can advance the statute.
7
GP Solo & Small Firm Lawyer - October/November 1998
Page 1 of 14
General Practice, Solo & Small Firm DivisionMagazine
Home
Calendar
Committees
Contact the
Division
Sponsors
Periodicals
Publications
Resources
The Individuals with Disabilities
Education Act
BY FLORENCIO "LARRY" RAMIREZ
© American Bar Association. All rights
reserved.
Florencio "Larry" Ramirez is a small firm
practitioner in Las Cruces, New Mexico. He
is the chair of the ABA General Practice,
Solo and Small Firm Division.
The Individuals with Disabilities
Education Act1 (IDEA) was enacted by
Public Law 94-142 to ensure that children
with disabilities receive a Free
Appropriate Public Education (FAPE),
and that their parents or guardians have
the opportunity to participate in the
development of that education. Its
predecessor was the Education of the
Handicapped Act.
The stimulus was the failure of states to
adequately provide special education to
children with disabilities. In studying the
need for this legislation, Congress found that
there were more than eight million children
with disabilities in the United States and that
one million children were entirely excluded
from state public school systems.
Additionally, more than half of the schoolage children with disabilities in the United
States were not receiving appropriate
educational services and more than 75
percent of pre-school children with
disabilities were not receiving appropriate
educational services.
The IDEA requires all states receiving
federal funds for special education to
establish goals for providing full educational
opportunities to all children with disabilities,
and provide procedures for ensuring that
children with disabilities and their parents or
guardians are guaranteed procedural
safeguards in decisions regarding
identification of children with disabilities,
appropriate evaluation, and appropriate
educational placement. In addition, the IDEA
requires that the states establish procedures
so that children with disabilities are educated
to the maximum extent appropriate with
children without disabilities (i.e., children
with disabilities are integrated or included in
the regular education curriculum to the
greatest extent possible).2
http://www.americanbar.org/newsletter/publications/gp_solo_magazine_home/gp_solo_mag... 7/6/2012
GP Solo & Small Firm Lawyer - October/November 1998
Special Education
Page 2 of 14
Back to Top
"Special education" means specially
designed instruction and related services, at
no cost to the parent, that meet the unique
needs of a child with a disability, including
classroom instruction; instruction in physical
education; home instruction; and instruction
in hospitals, institutions, and other settings.3
Special education includes vocational
education4 and "medical services" for
diagnostic purposes.5 "Related services"
include transportation; speech pathology
and audiology; psychological services;
physical and occupational therapy;
recreation, including therapeutic recreation;
early identification and assessment of
disabilities in children; counseling services,
including rehabilitation counseling; and
medical services for diagnostic and
evaluation purposes. The term also includes
school health services and social work
services and parent counseling and
training.6
In Irving Independent School District v.
Tatro,7 the Supreme Court held that where
medical services beyond diagnosis are
necessary for a child with disabilities to
attend a regular public school class, the
public school is required to provide the
necessary medical services.
The regulations define "children with
disabilities" as children who are between the
ages of three and 218 and who have been
evaluated in accordance with the regulations
as having mental retardation, hearing
impairments including deafness, speech or
language impairments, visual impairments
including blindness, serious emotional
disturbance, orthopedic impairments,
autism, traumatic brain injury, other health
impairments, specific learning disabilities,
deaf-blindness, or multiple disabilities; and
who because of their disabilities need
special education and related services.9
There are no specific disability
classifications for children who suffer from
Attention Deficit Disorder (ADD) or Attention
Deficit Hyper-activity Disorder (ADHD).
However, if a student is otherwise classified
as a child with a disability and also suffers
from ADD or ADHD, the student must
receive services for ADD or ADHD to meet
the student’s unique needs under the
IDEA.10
http://www.americanbar.org/newsletter/publications/gp_solo_magazine_home/gp_solo_mag... 7/6/2012
GP Solo & Small Firm Lawyer - October/November 1998
Page 3 of 14
One of the changes implemented by the
1997 amendments to the IDEA is that
children from ages three to five who do not
meet one of the specific classifications may
be eligible for services if they are
experiencing "developmental delays" as
defined by the state, measured by
appropriate diagnostic instruments and
procedures, in one of the following areas:
physical development, cognitive
development, communication development,
social or emotional development, or adaptive
development; and who for that reason need
special education and related services.11
What is extremely clear from all of the past
experience and research is that the earlier
children with disabilities can be identified,
the greater the chance that significant
progress and remediation can be
accomplished. This change in the IDEA will
identify and include more children with
developmental disabilities into programs that
can benefit them sooner rather than later.
What this means, perhaps, is that children’s
developmental delays may be overcome
before they become too significant, which in
the long run will be a benefit to our society.
A Parent’s Perspective
Thirteen years ago this past March 31, God
blessed me and my family with Jeffrey.
Three years earlier, we had been blessed
with Jaime. Two boys three years apart and
as different as two brothers could ever be.
Jaime is the honor student and an
exceptional athlete (please excuse a proud
father), and a really good kid. He has never
given his mother or me an ounce of trouble.
Then came Jeff. There was a lot of
excitement about the prospect of a new
baby and a lot of anticipation. The
pregnancy was a difficult one for Nancy and
at Christmas the doctor confined Nancy to
bed. I was really worried about Nancy and
the baby and ultimately my fears were born
out. Jeff was born five weeks premature and
because he was so early his colon had not
fully developed. He was born with a
condition called imperforate anus, which
meant he had an underdeveloped colon and
no anal opening.
The delivery was very difficult for Nancy—
she was in labor for more than 13 hours.
Because of Jeff’s medical problems he was
placed in intensive care and his doctors
http://www.americanbar.org/newsletter/publications/gp_solo_magazine_home/gp_solo_mag... 7/6/2012
GP Solo & Small Firm Lawyer - October/November 1998
Page 4 of 14
performed a colostomy within 24 hours of his
birth. Nancy was confined to her bed on
doctor’s orders and she was frantic to see
her new son. Jeff came through the surgery
like the champ he is and began
convalescing in the neonatal intensive care
unit where he spent the first 21 days of his
life.
After about a week Nancy left the hospital
for home, but without Jeff. Obviously, the
doctors felt Jeff’s condition was still too
fragile to go home right away. In any event,
about two weeks after Jeff’s birth his doctor
asked to speak to Nancy and me. Nancy told
me later that she knew exactly what the
doctor wanted to tell us, but she hoped
against hope that she was wrong. You see,
Nancy was a special education teacher at
the time and had previously worked with
severely retarded children. She currently
works as a diagnostician for our local school
district, trying to identify children with special
needs, because "special education" applies
not only to mentally retarded or learning
disabled children, but to children with needs
for advanced educational placement. So,
from that standpoint, both of my sons are
"special education" students. It’s just that
one drives and the other will never drive.
As you may have already surmised, the
doctor told us that Jeff was born with Down
Syndrome, and that he had performed a
chromosomal study to confirm that fact.
Down Syndrome is a chromosomal anomaly.
Instead of 46 chromosome present in a cell,
individuals with Down Syndrome have 47
(for more information, see the Down
Syndrome website at
www.nas.com/downsyn/index.html).
Down Syndrome is the most commonly
occurring genetic defect condition. One in
every 800 to 1,000 live births is a child with
Down Syndrome. There are several different
forms of Down Syndrome. All children born
with Down Syndrome are mentally retarded,
mostly in the mild to moderate range.
However, the retardation may be severe,
and other medical problems may be
associated, such as heart problems, vision
problems, hearing problems, and speech
problems. Some forms of Down Syndrome
produce children with very short life
expectancies of months to a year. However,
with the advances in medical science and
the acceptance of children with Down
Syndrome into our society, many children
afflicted with Down Syndrome may enjoy
http://www.americanbar.org/newsletter/publications/gp_solo_magazine_home/gp_solo_mag... 7/6/2012
GP Solo & Small Firm Lawyer - October/November 1998
Page 5 of 14
almost a normal life expectancy. There are
some reported cases of people with Down
Syndrome living into their eighties.
We have been very fortunate in many ways
that Jeff has not had more medical
problems. He has some vision problems that
are corrected with glasses and he has had
some difficulty with bowel malfunction on
occasion. For the most part, however, he
has been a very happy, healthy, and
gregarious child and a joy to his entire
family. His brother complains (somewhat
facetiously) that he doesn’t like to go places
with Jeff because everyone knows Jeff and
stops to speak to him. I also know (firsthand)
that Jeff has a tremendous sense of humor
and loves practical jokes.
Down’s children tend to have a variety of
medical problems and they generally suffer
from low muscle tone, poor vision, and
obesity. As sobering as it might be, the first
realization that comes to you as a parent is
that, unless you are independently wealthy,
you will never have enough resources to
provide, over her life span, for all of your
special child’s needs. Read "Special Needs
Trusts: Planning for a Child with Disabilities,"
by Edward D. Beasley, for more information.
I hope, if nothing else, that this article has
increased your awareness of the issues
affecting children like Jeffrey, and will be a
starting point for your own advocacy on
behalf of parents, children, or school districts
and other educational agencies.
Identifying the Child with Disabilities
The process begins with identification of a
child with disabilities. Every local education
agency (LEA) is responsible for ensuring
that all children with disabilities within its
jurisdiction are identified, located, and
evaluated, including children in all public and
private agencies and institutions within that
jurisdiction.12 In many cases, identification
is simply a matter of identifying a child with
any of the conditions or classifications
contained in the regulations.13
In other cases, identification can be made by
a parent, teacher, or other interested person
who has a reasonable suspicion that the
child may have a disability. The obligation to
perform a comprehensive evaluation is not
absolute. A parent’s wish for his child to be
evaluated, without more observational data,
http://www.americanbar.org/newsletter/publications/gp_solo_magazine_home/gp_solo_mag... 7/6/2012
GP Solo & Small Firm Lawyer - October/November 1998
Page 6 of 14
is not sufficient. However, where the LEA
has sufficient observational data, the LEA
has an obligation to perform a
comprehensive assessment.
The evaluation procedures to identify the
proper placement of a child are set forth in
the regulations. These evaluations cannot
be conducted without prior notice and
parental consent.14 In addition, the
evaluation must include testing on all
aspects of the suspected disability.15 The
tests and other evaluation materials must be
provided in the child’s native language or
other mode of communication, unless it is
clearly not feasible to do so; must have been
validated for the specific purpose for which
they are used; and must be administered by
trained personnel in conformance with the
instructions provided by their producer.16
No test may be used as the sole criterion for
determining an appropriate educational
program for a child.17
The evaluation is made by a multidisciplinary
team or group of persons, including at least
one teacher or other specialist with
knowledge in the area of the suspected
disability. In addition, if the child is
suspected of having a learning disability, the
multidisciplinary team must include the
child’s regular teacher, or if the child does
not have a regular classroom teacher, a
classroom teacher qualified to teach a child
of her age.18 For children of less than
school age, § 540 regulations provides that
a teacher qualified by the state educational
agency (SEA), and at least one person
qualified to conduct individual diagnostic
examinations of children, such as a school
psychologist, speech-language pathologist,
or remedial reading teacher, must be
present.
After concluding the testing and compiling
and interpreting the evaluation data, in order
to make a placement decision the team must
draw upon information from a variety of
sources, including achievement and aptitude
tests, teacher recommendations, physical
condition, social or cultural background, and
adaptive behavior. The testing and
evaluation data and the information drawn
from the various sources must be
documented. The decision for placement
must be made by the multidisciplinary group,
which must include parents knowledgeable
about the child and persons knowledgeable
about the meaning of the evaluation data
and the placement options, to ensure that
http://www.americanbar.org/newsletter/publications/gp_solo_magazine_home/gp_solo_mag... 7/6/2012
GP Solo & Small Firm Lawyer - October/November 1998
Page 7 of 14
the placement is made in conformity with the
regulations.19
If a determination is made that a child has a
disability and needs special education, an
Individualized Education Program (IEP)
must be developed. The IEP documents
what services are to be provided to the child.
The program must be specifically designed
to fit the individual child’s needs. The initial
placement must be with written parental
consent.
The IEP
Within 30 days of the determination that a
child is in need of special education, a
meeting to develop an IEP must be
conducted.20 Participants at this meeting
must include a representative of the school
district (other than the child’s teacher) who is
qualified to provide or supervise the
provision of special education; the child’s
teacher; one or both of the child’s parents;
the child, if appropriate; other individuals at
the discretion of the parent or the school
district; and a member of the
multidisciplinary team that evaluated the
child (or else the district must ensure that
the representative of the district, the child’s
teacher, or some other person who is
present at the meeting is knowledgeable
about the evaluation procedures).21
The IEP must include a statement of the
child’s present levels of educational
performance; a statement of annual goals,
including short-term instructional objectives;
a statement of the specific special
educational and related services to be
provided to the child and the extent that the
child will be able to participate in regular
educational programs; the projected dates
for initiation of services and the anticipated
duration of services; and appropriate
objective criteria and evaluation procedures
and schedules for determining, on at least
an annual basis, whether the short-term
instructional objectives are being
achieved.22
While § 350 provides that each public
agency is responsible for providing special
education and related services in
accordance with an IEP, the IDEA in part B
does not require that any agency, teacher,
or other person be held accountable if the
child does not achieve the growth projected
in the annual goals and objectives.
http://www.americanbar.org/newsletter/publications/gp_solo_magazine_home/gp_solo_mag... 7/6/2012
GP Solo & Small Firm Lawyer - October/November 1998
Page 8 of 14
Inclusion and Integration
The IDEA stresses the principles of inclusion
and integration, consistent with the
requirement that children with disabilities be
educated in the least restrictive environment
(LRE). The IDEA mandates that to the
maximum extent appropriate, children with
disabilities, including children in public or
private institutions or other care facilities,
should be educated with children who are
nondisabled; and that special classes,
separate schooling, or other removal of
children with disabilities from the regular
educational environment occurs only when
the nature or severity of the disability is such
that education in regular classes with the
use of supplementary aids and services
cannot be achieved satisfactorily.23 The
placement of a child with a disability must be
determined annually, be based on the child’s
IEP, and be as close as possible to a child’s
home.24
Gone are the days when you do not see
children with disabilities in schools. In my
youth, I never recall seeing a Down’s child in
school. Those children were institutionalized
or kept at home. I believe that this is a
tremendously positive change not only for
disabled children but also for nondisabled
children. Exposure to children with
disabilities has, for the most part, made
other children more understanding and
tolerant of these "different" children.
The IDEA requires that children with
disabilities be integrated in nonacademic as
well as academic situations. In providing for
nonacademic and extracurricular activities,
including meals, recess periods, and other
services such as counseling, athletics,
health services, recreational services, and
special interest groups or clubs sponsored
by the school, the school district ensures
that each child with a disability participates
with nondisabled children in those services
and activities to the maximum extent
appropriate to the needs of that child.25
Due Process and Confidentiality
Some of the most significant provisions of
the IDEA deal with due process rights and
confidentiality. The Family Educational
Rights and Privacy Act of 197426 (FERPA)
relates to the collection, dissemination, and
confidentiality of student records and
information. FERPA provides that the school
http://www.americanbar.org/newsletter/publications/gp_solo_magazine_home/gp_solo_mag... 7/6/2012
GP Solo & Small Firm Lawyer - October/November 1998
Page 9 of 14
district may determine what is personally
identifiable information regarding students.
Personally identifiable information is not
necessarily confidential and may be
disclosed under FERPA.
The IDEA requires that parents be given
notice of their rights under FERPA to
maintain the confidentiality of the children’s
records.27 In addition, parents have the right
to inspect and review any education records
relating to their children that are collected,
maintained, or used by the school district.
The school district must comply with such a
request without unreasonable delay and
before any meeting regarding an IEP or any
hearing relating to identification, evaluation,
or educational placement of the child; or the
provision of free, appropriate, public
education to the child; and in no event more
than 45 days after the request has been
made. These rights include the right to have
the school district provide copies of the
records (in certain situations), and to have a
representative of the parents (lawyer)
inspect the records.28
With regard to due process, the IDEA is
clear that parents should have significant
involvement in the educational decisions that
are made with regard to their disabled
children. I have discussed the need to give
parents notice before beginning an
evaluation, as well as notice of an IEP
meeting. Parents also must give written
consent before an evaluation is conducted
and before an IEP is put into place.
In addition, notice by the educational agency
must be given to parents when the school
district refuses to initiate an evaluation or
change the identification or educational
placement of the child, or to initiate the
provision of a free, appropriate public
education to the child.29 Parents may refuse
to consent to an evaluation or to a
placement of their child in special education.
Appeals
Either a parent or a school district may
initiate a hearing (appeal) because of a
parent’s refusal to consent to an evaluation
or a placement of a child into an IEP, or to
agree to a change in placement; or because
of the school district’s refusal to place a child
into a special education program, change a
placement, or fail to comply with the IEP.
Mediation is an alternative; however, it is not
http://www.americanbar.org/newsletter/publications/gp_solo_magazine_home/gp_solo_mag... 7/6/2012
GP Solo & Small Firm Lawyer - October/November 1998
Page 10 of 14
mandated by the regulations. This hearing
must be conducted by an impartial hearing
officer who is not an employee of the school
district that is involved in the education of
the child, or by someone who does not have
a personal or professional conflict of
interest.30
Any party to the hearing has the right to be
accompanied and advised by counsel and
by individuals with special knowledge or
training with respect to the problems of
children with disabilities. Either party may
present evidence; confront, cross-examine,
and compel the attendance of witnesses;
and prohibit the introduction of evidence that
has not been disclosed to that party at least
five days before the hearing. In addition, the
parties have the right to obtain written
findings and a written decision.
After the decision has been rendered, and
after the school district has deleted any
personally identifiable information, the
school district shall transmit the decision to
the state advisory panel established under
the regulations.31 The findings and
decisions may be made available to the
public. Parents have the right to have the
child present and open the hearing to the
public.32 The initial hearing must be
conducted within 45 days of the request for
a hearing.
A party aggrieved by the decision of the
hearing officer has the right to appeal the
decision to the SEA. The regulations do not
proscribe an exact time for the taking of an
appeal. The regulations require that the SEA
conduct a review of the entire record, and
ensure that the procedures at the hearing
were consistent with the requirements of due
process. The SEA may seek additional
evidence and afford the parties an
opportunity for oral and/or written argument
at the discretion of the reviewing officer. The
reviewing official must make an independent
decision within 30 days of the request for
review, and transmit copies of the decision
to the parties. After removing all personally
identifiable information, the official then
transmits the decision to the state advisory
agency.33 Finally, after the administrative
appeal has been exhausted, the IDEA
provides that any party who is still aggrieved
may bring a civil action under IDEA § 615(e)
(2). In any civil action brought under § 615
(e)(2), the court may award the parents
reasonable attorney fees under the
circumstances specified in IDEA § 615(e)
http://www.americanbar.org/newsletter/publications/gp_solo_magazine_home/gp_solo_mag... 7/6/2012
GP Solo & Small Firm Lawyer - October/November 1998
Page 11 of 14
(4).34
Surrogate Parents
Many children with disabilities also suffer
from neglectful or abusive parents who are
not, by choice or otherwise, involved in
educational decisions affecting their
children. To provide for these situations, the
IDEA provides for the appointment of
surrogate parents. The appointment of a
surrogate parent may occur when no parent
can be identified, when the whereabouts of a
parent cannot be discovered, or when the
child is a ward of the state. The IDEA
protects the independence of the surrogate
parent by requiring that the surrogate parent
has no conflicts of interest and has
knowledge and skills that ensure adequate
representation of the child. In addition, the
surrogate may not be an employee of the
school district. However, the surrogate may
be paid by the school district to act as a
surrogate.35
Amendments
The 1997 amendments to the IDEA continue
and enhance the protection of the original
act. In the new IDEA, if a child’s disability
has not changed over a three-year period,
she will not be subjected to unnecessary
reassessment to determine continued
eligibility for special education. In addition,
the new law recognizes that all children,
including those with disabilities, deserve
safe and orderly schools. Previously, there
were restrictions on the ability of schools to
expel students with disabilities for disruptive
behavior, where the behavior was a result of
the child’s disability. The 1997 amendments
now outline the procedures for dealing with
disruptive behavior, and if a child brings
drugs or weapons, the school has the right
to remove her to an alternate educational
setting for up to 45 days. During that time,
necessary services may not be stopped. The
new law also permits schools to ask a
hearing officer to remove a child for up to 45
days if the child is considered substantially
likely to injure himself or others. Previously,
only a court had that authority.
In all states, parents must now be included
in groups making eligibility and placement
decisions about their children. Previously, in
some states, parents only had a right to be
included in IEP meetings. The new law also
requires that a general education teacher be
http://www.americanbar.org/newsletter/publications/gp_solo_magazine_home/gp_solo_mag... 7/6/2012
GP Solo & Small Firm Lawyer - October/November 1998
Page 12 of 14
part of every IEP team. In addition, the
amendments emphasize and strengthen the
principles of inclusion. The IEP must not
only describe the extent to which a child will
be integrated but also detail the aids,
supports, and accommodations she will
receive within the regular curriculum. The
IEP team must also consider the use of
behavior interventions, strategies, and
supports in the case of a child whose
behavior impedes his learning or that of
others. Finally, teachers and related services
personnel must keep parents informed of
their child’s progress on a regular basis.36
Legislation Affecting Children with
Disabilities
Parents of a child with disabilities worry
about medical care and how their child will
be able to support themselves. Fortunately,
several pieces of legislation may provide
some assistance. The Americans with
Disabilities Act37 and Rehabilitation Act of
197338 (particularly § 504)39 provide help
with accessibility issues. The Developmental
Disabilities Assistance and Bill of Rights
Act,40 Head Start Act,41 Comprehensive
Child Development Act,42 and the Child
Care and Development Block Grant Act of
199043 are all pieces of legislation that
apply to children with disabilities and may
provide resources to assist these children.
Also, Medicare, Medicaid, and the Social
Security Act provide help with regard to
medical and disability benefits issues, but
these acts essentially require that your child
be a pauper to be entitled to benefits. CL
Notes
1. 20 U.S.C. § 1401 et seq. (1975) and 20
U.S.C. § 871 et seq. (1968).
2. 20 U.S.C. § 1413 (1975).
3. 34 C.F.R. Part 300, Federal Regulations
34 C.F.R. § 17 (a)(1) (1997).
4. 34 C.F.R. § 17(a)(3) (1997).
5. 34 C.F.R. § 16(b)(4) (1997).
6. 34 C.F.R. § 16(a) (1997).
7. 468 U.S. 883 (1984).
8. 34 C.F.R. § 122 (1997).
http://www.americanbar.org/newsletter/publications/gp_solo_magazine_home/gp_solo_mag... 7/6/2012
GP Solo & Small Firm Lawyer - October/November 1998
Page 13 of 14
9. 34 C.F.R. § 7 (1997).
10. See Joint Policy Memorandum,
September 16, 1991, 18 IDELR 116 ("Joint
Policy Memorandum"); Parker 18 IDELR 963
(OSEP 1992).
11. 34 C.F.R. § 7(a)(2)(i)(ii) (1997).
12. 34 C.F.R. § 220 (1997).
13. See 34 C.F.R. § 7 (1997).
14. 34 C.F.R. § 504 (1997).
15. 34 C.F.R. § 532 (1997).
16. 34 C.F.R. § 523(a) (1997).
17. 34 C.F.R. § 532(d) (1997).
18. 34 C.F.R. § 540 (1997).
19. 34 C.F.R. § 533 (1997).
20. 34 C.F.R. § 343 (1997).
21. 34 C.F.R. § 344 (1979).
22. 34 C.F.R. § 346 (1997).
23. 34 C.F.R. § 550 (1997).
24. 34 C.F.R. § 552 (1997).
25. 34 C.F.R. § 553 (1997); see also 34
C.F.R. § 306 (1997).
26. 20 U.S.C. § 1232g (1974).
27. 34 C.F.R. § 561 (1997).
28. 34 C.F.R. § 562 (1997).
29. 34 C.F.R. § 504 (1997).
30. 34 C.F.R. § 507 (1997).
31. 34 C.F.R. § 508 (1997).
32. Id.
33. 34 C.F.R. § 510 (1997).
http://www.americanbar.org/newsletter/publications/gp_solo_magazine_home/gp_solo_mag... 7/6/2012
GP Solo & Small Firm Lawyer - October/November 1998
Page 14 of 14
34. 34 C.F.R. § 515 (1997).
35. 34 C.F.R. § 514 (1997).
36. Please see Heumann and Hehir,
Believing in Children—A great IDEA for the
future, Exceptional Parent (September
1997).
37. 42 U.S.C. §§ 12,101 et seq. (1990).
38. 29 U.S.C. § 701 et seq. (1973).
39. 29 U.S.C. § 794 (1973).
40. 42 U.S.C. § 6000 et seq. (1963).
41. 42 U.S.C. §§ 9831-9852 (1981).
42. 42 U.S.C. §§ 9801, 9881-9887 (1981).
43. 42 U.S.C. §§ 9801, 9858, 9858(a)-9858
(p) (1990).
Table of
Contents
</
http://www.americanbar.org/newsletter/publications/gp_solo_magazine_home/gp_solo_mag... 7/6/2012
A New Look at Section 504 and the ADA in Special Education Cases | Children's Rights ... Page 1 of 7
myABA |
About Us
|
Join the ABA |
Calendar
Home › Children's Rights Litigation › Articles
A New Look at Section 504 and the ADA in Special Education Cases
By Mark C. Weber — May 23, 2011
School districts seem increasingly eager to decide that children are not eligible for services under the
Individuals with Disabilities Education Act (IDEA), 20 U.S.C.A. §§ 1400–82 (2011), and courts frequently
uphold these decisions. See, e.g., Anello v. Indian River Sch. Dist., 355 F. App’x 594 (3d Cir.
2009); Brado v. Weast, 2010 WL 333760 (D. Md. 2010). If eligibility under IDEA continues to be cut
back, parents of children with disabilities are likely to bring more claims for services under section 504 of
the Rehabilitation Act of 1973, 29 U.S.C.A. § 794 (2011), and Title II of the Americans with Disabilities
Act (ADA), 42 U.S.C.A. §§ 12131–50 (2011). Section 504 forbids disability discrimination by federal
grantees, including local school districts; Title II forbids disability discrimination by state and local
governments, again including school districts. The regulations promulgated to enforce section 504
require that all children with disabilities, as defined by section 504 and the ADA, be provided with free,
appropriate public education as interpreted by the section 504 regulations. 34 C.F.R. § 104.33(a) (2011).
That entitlement does not hinge on IDEA eligibility.
Section 504 and the ADA have often been viewed as supplemental causes of action in special education
cases, used when a student who is also eligible for services under IDEA has a plausible claim for
damages relief. The general consensus among courts is that the cause of action in IDEA does not allow
claims for compensatory damages, but section 504 and Title II allow for compensatory damages in
proper cases. Section 504 and the ADA remain underdeveloped as avenues of judicial relief in ordinary
special education cases that do not demand compensatory damages.
http://apps.americanbar.org/litigation/committees/childrights/content/articles/summer2011-s... 7/6/2012
A New Look at Section 504 and the ADA in Special Education Cases | Children's Rights ... Page 2 of 7
Membership
ABA Groups
Resources
for Lawyers
Publications
CLE backAdvocacy
This underdevelopment
may end soon.
At the same
time that school
districts are&cutting
on who is
protected under IDEA, a recent amendment to section 504 and the ADA has greatly expanded section
504/ADA coverage. The ADA Amendments Act, Pub. L. No. 110–325 (2008), overturns Supreme Court
precedent that narrowed the coverage of the ADA and section 504. It provides that impairments are to
be considered in their unmitigated state and widens the definition of major life activities set out in the
statute’s coverage provision.
News
The special education rights conferred by section 504 and the ADA are critical to children. Regulations
enforcing section 504 impose on school districts an obligation to provide appropriate education that
meets the needs of those children as adequately as it does the needs of children without disabilities.
Other section 504 and ADA obligations include duties not to segregate, to provide procedural
protections, and to afford special rights in the student disciplinary process.
Expanded Section 504 and ADA Coverage
Section 504 and the ADA define disability as a physical or mental impairment that substantially limits
one or more major life activities, a record of such an impairment, or being regarded as having such an
impairment. 29 U.S.C.A. § 705(9)(B) (2011), 34 C.F.R. § 104.3(j) (2011) (section 504); 42 U.S.C.A.
§ 12102(2) (2011) (ADA) Although this language sounds broad, the Supreme Court held, prior to the
statutory amendment, that it should be read narrowly. The Court ruled that impairments must be
evaluated after considering medical intervention or other means, including those of the body’s own
automatic systems, that the individual uses to mitigate the impact of the impairments. Sutton v. United
Air Lines, Inc., 527 U.S. 471, 482 (1999). It held that the “regarded as” term applies only if an entity
subject to the law mistakenly believes that a person has a physical or mental impairment that
substantially limits one or more major life activities or mistakenly believes that an actual impairment
substantially limits one or more major life activities.The Court declared that to be substantially limited in
the major life activity of performing manual tasks, an individual must be severely restricted “from doing
activities that are of central importance to most people’s daily lives,” and that the impairment’s impact
must be “permanent or long term.” Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 198
(2002).
The ADA Amendments Act, passed in 2008 and effective January 1, 2009, explicitly disapproves these
two major Supreme Court cases limiting the coverage of the ADA and, by extension, section 504. ADA
Amendments Act of 2008, § 2(b)(2)–(5). It provides that the definition of disability “shall be construed in
favor of broad coverage of individuals,” and declares that the intent of Congress is “that the primary
object of attention in cases brought under the ADA should be whether entities covered under the ADA
have complied with their obligations,” rather than whether the claimant’s impairment meets the definition
of a disability. Further, “[a]n impairment that is episodic or in remission is a disability if it would
substantially limit a major life activity when active,” and the determination whether an impairment
substantially limits a major life activity must be made “without regard to the ameliorative effects of
mitigating measures,” except for ordinary eyeglasses or contact lenses.
The new statute provides a nonexclusive list of major life activities that explicitly includes sleeping,
reading, concentrating, thinking, and communicating, as well as performing manual tasks, seeing,
hearing, eating, walking, speaking, learning, and working.The term “major life activities” now also
includes the operation of major bodily functions, such as “functions of the immune system, normal cell
growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and
reproductive functions.” A person meets the requirement of being regarded as having an impairment that
substantially limits a major life activity if the person establishes that he or she has been subjected to a
prohibited action “because of an actual or perceived physical or mental impairment whether or not the
impairment limits or is perceived to limit a major life activity.” All these definitional provisions apply to
section 504 as well as the ADA.
With respect to public elementary and secondary students, the expansion of coverage of section 504
and the ADA in the new law is momentous. This fact is particularly true for children, who, through their
own extraordinary effort, through medical and other therapies, or through supplemental devices, aids, or
services, overcome whatever limits their physical or mental conditions impose on them. These children
are now covered by section 504 and the ADA, as long as their impairments would substantially limit a
http://apps.americanbar.org/litigation/committees/childrights/content/articles/summer2011-s... 7/6/2012
A New Look at Section 504 and the ADA in Special Education Cases | Children's Rights ... Page 3 of 7
major life activity if they were not mitigated. Moreover, the list of things that are major life activities now
explicitly includes reading, concentrating, thinking, communicating, and sleeping, as well as hearing,
speaking, and learning. The “operation of a major bodily function” provision is especially important in its
coverage of children with serious medical conditions even when the conditions are satisfactorily treated.
Meeting Educational Needs Adequately
What are the educational entitlements of children who are covered by section 504 and the ADA? Any
discussion of the rights of children with disabilities to public education begins with the standard of
“appropriate education” under IDEA. In Board of Education v. Rowley, 458 U.S. 176, 200 (1982), the
Supreme Court construed the duty to provide appropriate education to children with disabilities who are
eligible under IDEA to mean services sufficient to provide “some educational benefit” to the eligible child.
It said Congress’s intent was “more to open the door of public education to handicapped children on
appropriate terms than to guarantee any particular level of education once inside.” The Court rejected a
standard adopted by the lower courts that a child be provided services sufficient to maximize his or her
potential commensurate with the opportunity provided children without disabilities to maximize theirs.
The lower courts in Rowley had adapted that standard from the regulations applicable to elementary
schools and high schools under section 504. The Rowley case did not present any claims under section
504 or the section 504 regulations themselves, so there was no occasion to investigate the rights that
section 504 (and eventually the ADA) would confer on a student.
Regulations promulgated under section 504 require a recipient of federal funding that operates a public
elementary or secondary education program to provide a free, appropriate public education to each child
covered by section 504 in the recipient’s jurisdiction. 34 C.F.R. § 104.33(a) (2011). The section 504
regulations define appropriate education as “the provision of regular or special education and related
aids and services that (i) are designed to meet individual educational needs of handicapped persons as
adequately as the needs of nonhandicapped persons are met and (ii) are based upon adherence to
procedures that satisfy the requirements” of further regulations governing educational setting, evaluation
and placement, and procedural safeguards. This regulation entails applying the standard that the lower
courts used in Rowley but that the Supreme Court rejected.
Cases Interpreting the Section 504 Regulation
Two notable cases suggest that the section 504 appropriate education regulation should be interpreted
and enforced exactly as written. Mark H. v. Lemahieu, 513 F.3d 922 (9th Cir. 2008), is a damages
case in which parents contended that their two daughters, both of whom had autistic conditions, were
denied adequate services by public schools in Hawaii. A hearing officer found that the children were
denied appropriate education in violation of IDEA and ordered prospective remedial action. The parents
subsequently filed suit for damages asserting, among other claims, that the failure to provide adequate
services during the period before remediation constituted a violation of section 504. The district court
granted summary judgment for the school system, holding that there is no section 504 cause of action
for violation of the right to appropriate education and that IDEA is the exclusive avenue for claims that
fall within its scope.
The Ninth Circuit overturned the decision, ruling that IDEA is not an exclusive remedy and that the
appropriate education duty under IDEA is not identical with that under section 504. The court stressed
that the section 504 appropriate education standard requires “a comparison between the manner in
which the needs of disabled and non-disabled children are met . . . .” Failure to offer a valid IDEA
program may, but does not necessarily, violate the section 504 duty. Because the parents, like the
school system, incorrectly assumed that the standards are identical and that the failure to provide
appropriate education under IDEA as identified by the hearing officer necessarily supported the section
504 claim, the case had to be remanded. See, generally, Mark H. v. Hamamoto, 620 F.3d 1090
(9th Cir. 2010) (overturning a summary judgment granted to a school district on remand, upholding the
claims and assigning the case to a different judge).
Lyons v. Smith, 829 F. Supp. 414, 419 (D.D.C. 1993), foreshadowed Mark H. In Lyons, the federal
district court affirmed a hearing officer’s decision that a child with attention deficit hyperactivity disorder
(ADHD) did not fit in the IDEA category of “other health impaired.” At the same time, it reversed the
hearing officer’s decision declining to order that the child be given special education pursuant to section
http://apps.americanbar.org/litigation/committees/childrights/content/articles/summer2011-s... 7/6/2012
A New Look at Section 504 and the ADA in Special Education Cases | Children's Rights ... Page 4 of 7
504. The court declared that the child was entitled to “an education designed to meet his individual
educational needs as adequately as the needs of nonhandicapped persons are met.”
Lyons is precisely parallel to the situation that is likely to become common in the wake of IDEA eligibility
cutbacks and section 504/ADA coverage expansion: a claim by a non-IDEA-eligible child, not for
damages relief, but rather for prospective creation and implementation of a program providing
appropriate education under the section 504 standard. Lyons cautioned that section 504 does not
require anything more than preventing discrimination on the basis of disability and expressed doubt that
the interventions required to serve a child who is not eligible under IDEA in a nondiscriminatory manner
would include special education, but it placed its emphasis on the regulation mandating that the needs
of the child be met as adequately as the needs of others. In response to a request for interpretation of
the duties that public schools owe students covered by section 504 but not IDEA, the Office for Civil
Rights of the U.S. Department of Education stated that the section 504 appropriate education duty does
not incorporate any cost or other limit as may be conveyed by a “reasonable accommodation” standard
but instead that precedent imposing such a limit in some education cases applies to post-secondary
institutions only. “Letter to Zirkel,” 20 Individuals with Disabilities Educ. L. Rep. 134 (1993). Thus,
in the view of the Department of Education, the section 504 appropriate education duty may in fact be
more exacting than the Lyons court envisioned.
A Standard Both Higher and Lower
Mark H. and Lyons establish that the section 504 appropriate education standard is enforceable when
a case is brought for violation of that statute, but also that the standard it imposes on public schools is
different from the IDEA appropriate education standard, perhaps lower, perhaps higher.
Or it may be both, depending on the circumstances. Thus, a wealthy school district that does
exceedingly well for its students who do not have disabilities, offering them a range of instruction and
activities that maximizes their educational opportunities, would be held to a high standard for children
covered by section 504, a standard well above that of Rowley. For school districts that are poor or fail
for other reasons to offer a decent level of services to children without disabilities, non-IDEA-eligible
children with disabilities in those districts might receive services that are below some of the more
generous interpretations of the IDEA standard.
Meeting the individual educational needs of a student with a disability as adequately as the needs of
students without disabilities requires a potentially difficult comparison, but the task is hardly impossible.
There are some levels of services for both children with disabilities and children without disabilities that
educational observers consider excellent, good, fair, or poor at serving the respective students’ needs. If
the children without disabilities receive excellent services in comparison to their peers nationally, then so
should the children with disabilities. If services provided to children without disabilities are good, fair, or
poor, the same level of quality would apply for children with disabilities.
Other Substantive Educational Obligations
Apart from the fundamental duty to provide appropriate education, as defined by the section 504
regulations, to section 504/ADA-eligible children, there are other educational obligations that have been
found to inhere in section 504 and the ADA’s application to public schooling. These obligations will
assume greater importance in light of the expansion of section 504/ADA eligibility. The duties include
avoiding the outright or subtle exclusion of children with disabilities from school (B.T. ex rel. Mary T.
v. Dep’t of Educ., 2009 WL 1978184 (D. Haw. 2009) (discriminatory age limits); Bess v. Kanawha
County Bd. of Educ., 2009 WL 3062974 (S.D. W. Va. 2009) (inducing a parent to keep a child with
disabilities home from school)), providing comparable noneducational benefits such as free meals (C.D.
v. N.Y. City Dep’t of Educ., 2009 WL 400382 (S.D.N.Y. 2009)), providing protection against
harassment and abuse on the basis of disability (Enright v. Springfield Sch. Dist., 2007 WL
4570970 (E.D. Pa. 2007)), and avoiding the segregation of children with disabilities (L.M.P. ex rel. E.P.
v. Sch. Bd., 516 F. Supp. 2d 1294 (S.D. Fla. 2007)).
http://apps.americanbar.org/litigation/committees/childrights/content/articles/summer2011-s... 7/6/2012
A New Look at Section 504 and the ADA in Special Education Cases | Children's Rights ... Page 5 of 7
Procedural Protections
The section 504 regulations require public elementary and secondary education providers to afford
children who need or are believed to need special education due to disability “a system of procedural
safeguards that includes notice, an opportunity . . . to examine relevant records, an impartial hearing
with opportunity for participation by the person’s parents or guardian and representation by counsel, and
a review procedure.” 34 C.F.R. § 104.36 (2011). These duties closely resemble the rights provided to
children covered by IDEA.
Student Discipline
One of the reasons school districts are reluctant to find children eligible for services under IDEA may be
the districts’ unwillingness to afford the children the protections from ordinary student discipline provided
by that statute. However, disciplinary protections for students with disabilities are also provided under
section 504, and in some respects may be greater than those in IDEA. The grandparent of all special
education discipline cases is S-1 v. Turlington, 635 F.2d 342, 350 (5th Cir. 1981), which relied on
section 504 as well as IDEA in holding that a student with a disability may not be expelled for
misconduct that results from the disability itself, and that, before any proposed expulsion, “a trained and
knowledgeable group of persons must determine whether the student’s misconduct bears a relationship
to his” or her disability. This right to manifestation review is necessarily entailed by the duty not to
discriminate on the ground of disability. As the court said, “How else would a school board know whether
it is violating section 504?” The court held that complete cessation of educational services may never
occur, even during a valid period of expulsion; that the burden is on the school to make the
manifestation determination, even when the student does not demand it; and that expulsion is a change
of placement invoking the procedural protections of section 504.
The S-1 case considered only expulsion, but its principles apply to lesser forms of discipline, such as
long-term suspensions or disciplinary removals. Under the current version of IDEA, some disciplinary
removals may take place regardless of whether the child’s behavior was a manifestation of the disability,
and the definition of what is a manifestation of the disability is quite limited. 20 U.S.C.A. § 1415(k)(1)(E)(G) (2011). S-1 would call into question whether school officials have such broad, unilateral authority
with regard to children protected by section 504 and the ADA.
Remedies
The range of remedies for denials of appropriate education under section 504 should be no smaller than
that applicable to IDEA cases. In Lyons v. Smith, 829 F. Supp. 414, 419–20 (D.D.C. 1993), for
example, the court overturned a decision by a hearing officer that the hearing officer lacked authority to
order a placement for a child upon making a finding that the school system failed to meet the
requirements of section 504. Courts have frequently approved requests for ongoing educational
services, compensatory education, and tuition reimbursement in section 504 or ADA cases, although in
some instances the courts have held the remedy supported by IDEA as well. See, e.g., J.T. ex rel.
Harvell v. Mo. State Bd. of Educ., 2009 WL 262094, at *7 (E.D. Mo. 2009); Neena S. ex rel.
Robert S. v. Sch. Dist., 2008 WL 5273546 (E.D. Pa. 2008).
Attorney Fees
The ADA specifically allows for attorney fees in administrative proceedings. 42 U.S.C.A. § 12205 (2011).
The section 504 provision is not so explicit, but impliedly allows fees for necessary administrative
proceedings. Section 504’s provision states, “In any action or proceeding to enforce or charge a violation
of a provision of this subchapter, the court, in its discretion, may allow the prevailing party, other than the
United States, a reasonable attorney’s fee as part of the costs.” 29 U.S.C.A. § 794a(b) (2011). This
language is drawn from Title VII, which has been held to allow attorney fees for all administrative
proceedings that must be pursued to present a claim in court. N.Y. Gaslight Club, Inc. v. Carey, 447
U.S. 54, 71 (1980).
Expert Witness Fees
The ADA fees provision explicitly includes “litigation expenses, and costs,” 42 U.S.C.A. § 12205 (2011),
which would appear to cover the charges that parents frequently need to pay to expert witnesses in
disputes over special education programs. Although the Supreme Court has ruled that IDEA’s fees
http://apps.americanbar.org/litigation/committees/childrights/content/articles/summer2011-s... 7/6/2012
A New Look at Section 504 and the ADA in Special Education Cases | Children's Rights ... Page 6 of 7
provision does not extend to expert witness fees (Arlington Cent. Sch. Dist. v. Murphy, 548 U.S.
291, 297–98 (2006)), at least one court has ruled that the section 504 fees provision should be read to
cover these charges. L.T. ex rel. B.T. v. Mansfield Twp. Sch. Dist., 2009 WL 2488181 (D.N.J.
2009).
Conclusion
As more parents turn to section 504 and the ADA in special education cases, courts will need to confront
questions of appropriate education, procedural protections, defenses, and remedies under those laws as
distinct from IDEA. The courts should be guided by a straightforward reading of the statutes and
regulations. If courts give the relevant provisions their natural reading, they will provide the protection
that Congress intended to give schoolchildren with disabilities when it enacted those laws.
Keywords: litigation, children’s rights, Individuals with Disabilities Education Act, Rehabilitation Act of
1973, Americans with Disabilities Act
Mark C. Weber is Vincent de Paul Professor of Law at DePaul University, author of Special Education Law and
Litigation Treatise (LRP 3d ed. 2008 & supps.) and coauthor of Special Education Law Cases and Materials
(Lexis-Nexis 3d ed. 2010).
Copyright © 2012, American Bar Association. All rights reserved. This information or any portion
thereof may not be copied or disseminated in any form or by any means or downloaded or stored
in an electronic database or retrieval system without the express written consent of the
American Bar Association. The views expressed in this article are those of the author(s) and do
not necessarily reflect the positions or policies of the American Bar Association, the Section of
Litigation, this committee, or the employer(s) of the author(s).
More Information
•
•
•
•
•
•
•
•
•
»
»
»
»
»
»
»
»
»
Children's Rights Litigation Home
News & Developments
Articles
Case Notes
Programs & Materials
Related Resources
Multimedia
Directory of Children's Law Programs
Children's Rights Litigation Committee
◦ • About
◦ • Join
◦
Publications
Children's Rights Litigation
» Spring 2012
CLE & Events
ABA Annual Meeting
August 2–7, 2012
http://apps.americanbar.org/litigation/committees/childrights/content/articles/summer2011-s... 7/6/2012
A New Look at Section 504 and the ADA in Special Education Cases | Children's Rights ... Page 7 of 7
Chicago, IL
» View Section Calendar
Bookstore
Circuit Conflicts in Antitrust Litigation
This practical guide surveys current conflicts among the Circuit Courts of Appeal in antitrust
litigation.
A Century of Legal Ethics: Trial Lawyers and the ABA Canons of
Professional Ethics
The ABA Canons of Ethics was adopted in 1908 and created ethical standards for lawyers.
» View all Section of Litigation books
http://apps.americanbar.org/litigation/committees/childrights/content/articles/summer2011-s... 7/6/2012
What Difference
Can a Quality Lawyer
Make
for a Child?
L a u r e n G i rar d A d a m s , L o u r d e s M . R o s a d o , an d A ng e la C . V i g i l
Lauren Girard Adams cochairs the ABA Section of Litigation Children’s Rights Litigation Committee.
Lourdes M. Rosado is associate director of the Juvenile Law Center, Philadelphia.
Angela C. Vigil is with Baker & McKenzie LLP, Miami.
All are members of the Children’s Rights Litigation Committee of the Section of Litigation.
Kenya Mann Faulkner was spurred to action when
she received an email in April 2008 from her firm’s
pro bono coordinator asking if someone could help a
16-year-old girl in Luzerne County, Pennsylvania.
Cathy (minors’ names have been changed for this
article), an honor student who had never been in
trouble with the law, had been sent to a boot camp by
a judge for having less than one gram of marijuana
in her car. Faulkner, then a partner at Ballard Spahr
LLP in Philadelphia and now Pennsylvania’s inspector general, was shocked to learn that Cathy was not
represented by an attorney at her trial. “My first
thought was, ‘This is not a third-world country.
These things go on in other countries, not here in the
United States,’” she says.
Faulkner and her colleague Amy Shellhammer, then a
Ballard associate and now a law clerk to U.S. Magistrate Judge
Timothy R. Rice, quickly volunteered to get Cathy out of the
boot camp and back to her parents. Shellhammer, herself a former public defender in Philadelphia, was equally appalled.
“From my experience as a public defender, a child like Cathy—an
honor student, who was active in 4-H and had a job, and who has
wonderful, supportive parents—would get 20 hours of community service without ever having to go to court,” she explained.
“That child would come in, show she completed the community
service, and the case would get dismissed. Not only did Cathy
get placed, but she also now had a delinquency record that could
affect her future, including her ability to get federal financial
aid to go to college.”
Cathy’s parents did not get a lawyer for her because they
thought the judge would be fair and sentence Cathy to probation
and community service, this being her first offense. Instead,
Cathy’s parents were asked by a probation officer to sign a piece
of paper when they got to court for her hearing; they later
learned that they had signed a waiver of counsel form. “But the
rules of juvenile court procedure clearly require that the youth
have an out-loud, on-the-record, in-court colloquy by the judge
to waive the right to counsel,” explains Shellhammer. “Parents
cannot waive the child’s right to counsel. If the child wants a
lawyer, she gets it. A signed paper from probation outside the
courtroom is irrelevant.”
Shellhammer noted that the transcript also showed that
Cathy entered an admission—the juvenile court equivalent of a
guilty plea—without a required court colloquy. After making
that admission during a hearing that couldn’t have lasted more
than two minutes, Cathy was led away in handcuffs and shackles, to the horror of her stunned parents.
“When we went to the facility to meet with Cathy, she was
Published in Litigation, Volume 38, Number 1, Fall 2011. © 2011 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not
be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
1
Illustration by A. Richard Allen
shaking like a leaf,” recalls Faulkner. “And she kept asking us if
we could get her out.” Less than a week after her hearing, the
two attorneys filed a habeas petition on Cathy’s behalf and secured Cathy’s release from the boot camp, where she had been
placed by the juvenile court judge, Mark A. Ciavarella Jr.
Corruption and Rights Violations
But it wasn’t until January 2009 that Faulkner, Shellhammer,
and the general public learned that Cathy was just one of thousands of children whose constitutional rights were violated in
Ciavarella’s courtroom. The announcement that month of federal criminal charges against two Pennsylvania Court of
Common Pleas judges brought to light arguably one of the most
notorious judicial scandals in U.S. history. The Luzerne County
judges—Ciavarella and Michael T. Conahan—were at the center
of a “kids for cash” scheme that made headlines worldwide. The
now-former judges were accused of accepting nearly $2.9 million in financial kickbacks from the developer and co-owner of
private juvenile detention facilities in a quid pro quo exchange
for contracting with and placing children in those same facilities. Conahan pled guilty to racketeering conspiracy and was
recently sentenced to 17½ years in prison. Ciavarella went to
trial and was convicted on 12 counts, including racketeering,
money laundering, mail fraud, and tax fraud; he was sentenced
to 28 years.
Once the news broke and at the urging of lawyers for children, the Pennsylvania Supreme Court took special jurisdiction
of the Luzerne County juvenile court. The supreme court appointed a special master to review all the delinquency cases
heard by Ciavarella during the time he was on the take. The
special master’s investigation revealed even more shocking
information about Ciavarella’s “complete disregard for the constitutional rights of the juveniles who appeared before him
without counsel, and the dereliction of his responsibilities to
ensure that the proceedings were conducted in compliance
with due process.” Some 1,800 youths who were adjudicated delinquent were not represented by attorneys. The reports detailed Ciavarella’s systematic failure to determine whether a
juvenile’s waiver of the right to counsel was knowingly, intelligently, and voluntarily tendered; to advise the juvenile of the
consequences of an admission of guilt and of forgoing trial; and
to ensure that youths were informed of the factual bases for
what amounted to peremptory guilty pleas. The corruption and
rights violations were so egregious and pervasive that on
October 29, 2009, the Pennsylvania Supreme Court took the unprecedented action of vacating the adjudications of all youths
who had appeared before former judge Ciavarella from 2003
through May 2008, and ordering that the delinquency records
be expunged. All the cases were then dismissed with prejudice,
barring any retrial of these youths.
Luzerne has received significant media attention around the
world because of the shocking nature of the corruption and the
large number of youths who were affected. Yet, many children
in the juvenile justice and child welfare systems remain vulnerable because they lack attorneys who will fight for them and
ensure that the very systems that are supposed to serve and protect them do not in fact harm them. For example, the American
Civil Liberties Union of Wyoming reports that children as
young as eight years old are being criminally prosecuted in adult
courts in that state for typical child and adolescent misbehavior
such as stealing a pack of gum, skateboarding in the wrong place,
smoking at school, or drinking at a weekend party.
Research confirms the harsh realities that young people in
these systems face when they are left to fend for themselves.
Youths in the foster care system and those who have “aged out”
of that system have higher rates of unemployment and homelessness, and more often fail to obtain educational degrees, than
their non-foster-youth peers. Youths who have been adjudicated
delinquent or criminally convicted also must contend with serious collateral consequences. “The consequences of juvenile adjudications are serious and long term; the lack of representation
can reshape a child’s entire life,” explains Laurence H. Tribe,
professor of law at Harvard Law School and former senior counsel for the Access to Justice Initiative at the U.S. Department of
Justice. “Being found guilty can mean expulsion from school,
exclusion from the job market, eviction from public housing,
and exclusion from the opportunity to enlist in the military. It
can affect immigration status.”
Children’s Bars
Given the severe outcomes that may await these children, it is
absolutely critical that each has an advocate on his or her side to
hold these systems accountable. Fortunately, in some parts of
the country, a vibrant and dedicated children’s bar rises to the
challenge of defending the liberty interests of youths charged
with crimes, as well as protecting the interests of children in the
abuse and neglect system. Composed of a diverse group of practitioners—public defenders, legal aid and legal services organizations, law school clinics, pro bono attorneys, and solo practitioners—the children’s bar demonstrates daily the difference
that a lawyer can make in the lives of our most vulnerable
youths. In this article, we will highlight key decision-making
points in typical delinquency and dependency cases in which
lawyers can and do steer their child clients to better outcomes.
“You’re talking about, in many states, the state being involved
in the child’s life for up to 18 years—making decisions about who
Published in Litigation, Volume 38, Number 1, Fall 2011. © 2011 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not
be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
3
their family will be, about whether they will be institutionalized, what health care they’ll get, which siblings they can visit,”
points out Casey Trupin, an attorney with Columbia Legal
Services in Seattle. “There really is no other process in which
you can be cut off from your family forever. We would never tolerate an adult going into that situation without an attorney, and
there’s no reason why we should tolerate it for children who deserve even more protection.”
Rights violations were so
egregious and pervasive,
the Pennsylvania Supreme
Court took the
unprecedented action of
vacating the adjudications
of all youths.
The role of the attorney is distinct from the best-interest advocate. The child’s best interests guide the dependency court in
its decision making, and courts often appoint best-interest advocates to help the court. The input of these court professionals
can be extremely valuable to the judge, but it does not replace
the need for a lawyer who can protect the child’s legal rights.
Whether or not a best-interest advocate is involved, children
need a lawyer immediately when they are removed from their
homes by the state. In those circumstances, “who would you
want to counsel you and represent you in front of the judge?”
asks Judge Rosemary Barkett of the U.S. Court of Appeals for
the Eleventh Circuit. “A next door neighbor? Somebody who is
well meaning and is trying to help you but who doesn’t have expertise in the legal process? Or someone who knows all the
available resources that the law provides, who can make arguments on your behalf, and to whom you can speak in great confidence and know that your confidences will not be revealed?”
Appointment of a guardian ad litem, a best-interest advocate, or
even an attorney for that guardian ad litem or advocate should
never be considered an alternative to the appointment of an attorney for the child.
Youths accused of criminal offenses have an absolute right to
counsel under the U.S. Constitution, in keeping with In re Gault,
387 U.S. 1 (1967), and its long progeny. Yet, in the trenches of trial
courts—where the main objectives are often to clear cases and
empty overcrowded hallways—the guarantee of counsel is undermined. For example, arrest-day-only plea bargains, available
only if a child admits guilt before counsel is able to investigate
the case, encourage the waiver of counsel for seemingly lightend pleas to probation and other non-jail conditions. Judges allow these pleas and often fail to test extensively whether these
children are knowingly waiving their rights.
In too many jurisdictions, children charged with delinquency offenses are pressured to waive counsel and plead guilty to
charges without the benefit of a lawyer’s assistance. “We know
from careful national studies that juveniles who lack counsel are
more likely to plead guilty without offering any defense or mitigating evidence,” notes Tribe, who is alarmed by the trend of children forgoing representation by counsel. “[W]ithout any credible
defense, those young people are far more likely to end up in detention or incarceration, where they’re much more likely to be exposed to assault or abuse, much more vulnerable to suicide, and
far more likely to commit further crimes after their release.”
Guidelines
A critical first step to protecting the rights of children facing the
consequences of state power is to provide them the same protections afforded adults and require that every child in every dependency or delinquency proceeding be appointed counsel immediately upon the initiation of legal proceedings. In addition,
safeguards must be put in place to ensure that a child does not
waive counsel unless the child has a meaningful understanding
of exactly what he or she is giving up.
Next, counsel for children must practice in accordance with
the Rules of Professional Conduct in their state, including zealously representing the client’s express wishes. As outlined in
the Model Rules of Professional Conduct, lawyers are bound by
a unique set of obligations to their clients that set them apart
from other professionals in the courtroom (such as guardians ad
litem, case workers, and attorneys for the state) and their clients’
parents. Accordingly, an attorney for a child must engage in the
representation of a child in the same manner that he or she
would represent any other client to every extent possible.
Children’s lawyers, like lawyers for any client, have ethical
constraints. The lawyer owes a duty of confidentiality to the
child client and must keep the confidences of a child client,
according to Model Rules of Professional Conduct R. 1.6. As
with any client, there are limits to these guarantees of confidentiality in extreme situations. What does the lawyer do when the
child client is in danger? Can or must the lawyer reveal information to an adverse party? Comment 8 to Model Rule 1.14 explains
Published in Litigation, Volume 38, Number 1, Fall 2011. © 2011 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not
be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
4
There really is no other
process in which you
can be cut off from your
family forever.
that limits exist when children are putting themselves or others
in danger. Ethical considerations also come into play when a
lawyer and client have different ideas regarding the goals or desired outcome of the representation. It is here that the counseling role of the lawyer is paramount. A lawyer’s role is not merely
to advocate for what a client wants but also to counsel and advise the client when the client’s decisions are ill conceived.
“From very young ages, our children have a lot to offer with
regard to their circumstances. They are not just victims but parties with a vested interest in the outcome of their cases,” says
Trenny Stovall, director of the DeKalb County Child Advocacy
Center in Georgia, which represents about 1,000 foster children
annually. “But it doesn’t mean that if your child wants to live on
the moon, that’s what you go to court and you advocate,” Stovall
adds. “It’s the attorney’s job to counsel the client as to what’s
best and what is the most appropriate course of action.” Just as
they owe a duty to adult and corporate clients, lawyers owe
child clients their opinion about whether the client’s goals are
reasonable and achievable. (The Model Act Governing the
Representation of Children in Abuse, Neglect, and Dependency
Proceedings, adopted by the ABA in August 2011, provides additional guidance for attorneys representing children in dependency matters.)
The Model Rules also provide guidance for representing a
client who has diminished capacity or is not able to direct counsel. For example, Section 1.14(a) mandates that the lawyer owes
the child client the same duties of undivided loyalty, confidentiality, and competent representation that the lawyer owes to any
other client. However, Section 1.14 also authorizes and even
mandates that a lawyer take “protective action” if a client—even
a child client—has diminished capacity. This means children’s
lawyers must have access to all available information about
their child clients and that the lawyers themselves must determine whether a child has diminished capacity. The Model Rules
envision that only a lawyer is in a position to observe the behaviors, decisions, habits, emotions, and other personal actions of a
child and then determine the child’s ability to comprehend and
participate in his or her defense.
Moreover, when the child has diminished capacity and is at
risk of substantial physical harm, including physical or sexual
abuse, Model Rule 1.6 authorizes the lawyer to take protective
action. The rule provides that “the lawyer may reveal information relating to the representation of a client to the extent the
lawyer reasonably believes necessary: (1) to prevent reasonably
certain death or substantial bodily harm.” Physical or sexual
abuse of a child falls under this exception. If the lawyer is truly
fearful for his or her client’s safety, the Model Rules allow
disclosure.
Two hypothetical cases highlight just a few of the myriad
ways in which lawyers for children are critical in both abuse and
neglect cases, as well as in delinquency cases.
The Case of Ana and Gabriel
Ana is 8 years old; her brother Gabriel is 14. The state removed
Ana and Gabriel from their home and placed them in foster care.
Now Ana and Gabriel are appearing in dependency court, where
their mother is represented by counsel, their father is represented by counsel, the state is represented by counsel, and the
Department of Children and Families (DCF) is represented by
counsel. The guardian ad litem (GAL) will report on the best
interest of the children.
At the hearing in dependency court, the DCF social worker
reports that the only relative whom the mother identified to
care for the children is her own mother, the children’s maternal
grandmother. But because of the size of her house, the maternal
grandmother is able to take only Ana. The DCF social worker
also reports, based on her conversation with the mother, that
the father of the children is in prison and not involved in the
children’s lives. Finally, the DCF social worker reports that she
found a non-relative foster home for Gabriel.
The GAL interviewed the DCF social worker, the children,
the mother’s attorney, and the maternal grandmother. At the
hearing, she informs the court that the maternal grandmother’s
home is an appropriate placement for Ana, though it is unfortunate that Ana and her brother will be separated. The GAL reports that Gabriel is a good student and will adjust well to a new
school. While Ana and Gabriel told the GAL that they want to
live with their paternal grandparents, the GAL believes that the
DCF recommendation is in their best interest because the children have a relationship with their maternal grandmother,
whom they see regularly. Plus, the grandmother will ensure that
Gabriel and Ana see each other regularly as well. The GAL also
informs the court that the children have not seen their father in
several years, though they do visit their paternal grandparents.
The attorney for the mother agrees with the DCF recommendation. The attorney for the father has not yet spoken to him about
the placement of the children and does not object to the DCF plan.
Published in Litigation, Volume 38, Number 1, Fall 2011. © 2011 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not
be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
5
Ana and Gabriel are separated. Ana goes to live with her maternal grandmother. Gabriel goes to live with a non-relative foster family.
In our training to become lawyers and more specifically litigators, one of the key skills we learn is how to handle any given
case most strategically—whether it involves a Fortune 500 company or an individual client. A key role we play as litigators is to
develop case themes and theories, and to bring those themes
and theories to life for the court so as to achieve our client’s objectives as best we can. As lawyers, we do this in myriad ways,
including investigating, obtaining evidence, filing motions, examining and cross-examining witnesses, objecting to the introduction of evidence by our adversaries, and preserving legal issues for appeal. The lawyer is uniquely empowered to act in this
capacity on behalf of the client.
In dependency cases, two key objectives are minimizing the
number of times a child is moved from one placement to another
and getting a child to a permanent home—whether that means
returning the child to the home of the child’s natural parents,
placement with an adoptive family, or long-term placement with
a fit and willing relative. The lawyer’s duties are to make sure
that the case moves along expeditiously, to advocate zealously
for the client’s wishes, and to counsel the client regarding possible outcomes.
“We all want to believe that the Child Protection System is
benign, that everybody is looking out for the best interest of
those children,” says Shari F. Shink, founder and president of
the Rocky Mountain Children’s Law Center in Denver. “Well,
that system needs to act like an emergency room and it doesn’t.
There is no sense of urgency. Children’s lives are put on hold.
They are denied access to family and siblings. They are denied
treatment. They are moved around like a piece of furniture.”
A lawyer representing a child client has the opportunity, education, and legal expertise to take a look at all the laws and
bring to the judge’s attention laws that the judge might have
overlooked or might not be aware of that will give the child additional protections. Lawyers hold the state accountable for
ensuring that the children in state custody receive all the protections to which they are entitled under law and for meeting all
deadlines imposed on the state. Indeed, a study in Florida demonstrated that children who had lawyers were being placed in
permanent homes more quickly than children in other parts of
the state who did not have lawyers appointed to them.
In the case of Ana and Gabriel, a lawyer for each child could
have made a huge difference. A lawyer would have had several
attorney-client protected conversations with Ana and would
have learned that the maternal grandmother’s house is not an
appropriate placement for Ana because of the sexual abuse inflicted on Ana by the maternal grandmother’s boyfriend.
Moreover, the lawyer could have filed a protective order
prohibiting any contact between the boyfriend and Ana. Had
Ana been assured by a lawyer that this information would not
have been disclosed to the court without her permission, she
would have felt more comfortable disclosing it. Ana’s lawyer
could then have counseled Ana and worked with her to develop
a strategy for ensuring Ana’s safety, including how and when to
disclose the issue to the court. “Being able to assure the child of
confidentiality as their lawyer and developing a rapport with
them allows the child to disclose things to me that others are not
privy to,” notes Alfreda D. Coward, a practitioner in Broward
County, Florida, and executive director of One Voice Children’s
Law Center. Some of Coward’s clients have disclosed instances
of sexual abuse in facilities, something she feels that they never
would have done if they did not feel they could trust her as their
attorney; the disclosures in turn allowed Coward to get her clients away from the abuse and into safe situations.
By conducting a thorough investigation, the lawyer is also in
a better position to understand and advocate for the child’s
wishes. For example, during the course of his investigation, the
lawyer would have learned that Ana and Gabriel want to stay
together and live with their paternal grandparents. The effective lawyer interviews the children (on more than one occasion)
to understand why the children prefer to go to their paternal
grandparents and not stay with their maternal grandmother.
“Many youth who come into the child welfare system have been
the ones to take care of their siblings, so their desire to remain
connected is completely understandable,” explains Trupin of
Columbia Legal Services in Seattle. The effective lawyer asks
the court to order the guardian ad litem, the social worker, or
both to interview the paternal grandparents. (Alternatively, the
lawyer cross-examines the guardian ad litem and the social
worker to establish that they did not extensively interview the
paternal grandparents prior to recommending the other placement.) Moreover, the lawyer presents direct evidence of the
suitability of the paternal grandparents’ home through the testimony of the paternal grandparents, neighbors, relatives, and
others. A lawyer elicits evidence to support Gabriel’s desire to
stay in the same school, including Gabriel’s own testimony and
that of teachers and mentors at the school, as well as expert testimony about moving children between schools, especially during the middle of the academic year.
“If the child’s desire is inconsistent with what the other parties want and the child doesn’t have a lawyer, then there is no
other person who will bring that to the court’s attention,” notes
Coward from Florida. “The lawyer for the child is the only person who can represent that child’s interest and the only person
who has both the relationship with the child and the legal expertise to articulate the child’s interest to the court.”
Coward recounts a recent case in which she was appointed
to represent a seven-year-old who wanted to change her
Published in Litigation, Volume 38, Number 1, Fall 2011. © 2011 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not
be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
6
placement, but no one would listen to her request. The child told
Coward that she had spoken with several people, including her
teacher and guidance counselor, to explain why she wanted to
change placements. “As her counsel, I was able to subpoena the
necessary records and take the depositions of those individuals
and communicate that information to the court in support of
her position.”
In child welfare cases, it is especially critical for the court to
obtain a comprehensive understanding of the child’s life. “A
judge needs the best possible information to make an informed
decision,” asserts Diane C. Geraghty, director of Loyola
University Chicago’s Civitas ChildLaw Center. “In our legal
system, that information is largely funneled through attorneys
in the courtroom—people who have been trained in substantive
law and courtroom advocacy skills, in communication with clients and conveying the client’s interests and wishes to the court,
and in obeying the ethical mandates of the profession.”
Judge Barkett concurs. “If you give every party to the proceeding a voice and an opportunity to cross examine other parties and their positions,” she says, “you are going to more accurately receive a picture of the totality of the circumstances. And
it is then the judge’s responsibility to decide how much weight
to be given to what a child wants.”
Stovall from Georgia points out that when children, particularly older children and teenagers, feel that the court has considered their input, they are more invested in making the ultimate outcome work, even if it isn’t the one they would have
chosen. Indeed, Trevor Wade, a former foster youth from
Denver, recounts what it was like as a young child not to have
people in the system consider his ideas or thoughts about what
was best for him: “When they make decisions without listening
to your side, it feels like you’re not a person. It makes a kid feel
like they are not important.”
But as Judge Barkett notes, “A child who knows that his or
her voice has been heard will more easily live with whatever
result is ultimately achieved . . . as opposed to a child who has
never been heard at all.”
Brian’s Case
Brian is 14 years old and has been charged in juvenile court with
aggravated battery of a school official, a charge that carries
with it a mandatory minimum of five years’ probation. Brian is
alleged to have punched his special education teacher in the
face, breaking her nose and causing severe bruising and swelling. The incident occurred at the end of the school day on a
Friday when the teacher intervened in an altercation between
Brian and another student.
Due to the seriousness of the allegations and the injuries to
the victim, Brian was immediately taken into custody and held
in the detention center over the weekend. This was Brian’s first
offense. The police did not interview the teacher before taking
Brian into custody, relying instead on the statements of other
school officials. What the police therefore did not know was
that Brian had acted out of self-defense. Another student had
verbally assaulted Brian, accusing Brian of copying his class
notes. Brian responded verbally, whereupon the other student
punched Brian. In response, Brian raised his fist to punch the
student. At that moment, the special education teacher intervened and Brian’s punch landed on her face, instead of on the
other student.
Children’s lives are put
on hold. They are moved
around like furniture.
Brian’s sole focus over the weekend was to get out of the detention center, no matter what. At the initial hearing on Monday
morning, Brian learned that the public defender assigned to his
case was running late. The judge told Brian he could either go
back to the holding cell and wait, or waive counsel and proceed
with the initial hearing. Brian waived counsel. The judge informed Brian of all of his rights and told him that the court could
hold him in detention until the trial takes place. The judge also
advised Brian of his option to plead guilty and face a minimum
sentence of five years’ probation, in which case he would be released immediately. Eager to get out, Brian pled guilty and was
released to his grandmother, the only adult present in court for
him that day.
In delinquency cases, the objective is to obtain the least restrictive outcome possible for your client. All too often our delinquency courts allow children like Brian to commit to completing a sentence that they may not be equipped to accomplish
because they lack the understanding, tools, and familial and
community support to fulfill those court-imposed obligations.
As a result, these children show up just a few weeks later in the
same court, having failed at a course of probation they could not
have accomplished in the first place.
In Brian’s case, and in so many others, a lawyer would have
made a huge difference. First, a lawyer would have met with
Brian prior to the initial hearing. Within minutes of hearing
Brian’s version of events, the lawyer would have known that
Brian had a potential self-defense claim and that the charge
was not warranted based on the facts. The lawyer could have
explained this to Brian and could have advised him against
Published in Litigation, Volume 38, Number 1, Fall 2011. © 2011 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not
be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
7
taking a plea at that time. Brian, like almost all youths, could
only see the short-term gain of making an admission that day
instead of going to trial—he could get out of detention and go
home. But it is the job of lawyers to counsel their clients as to
what it means to be on probation and how they can end up being
locked up when they fail to obey the most basic probation conditions, such as being in by curfew. An effective lawyer could have
explained to Brian all the long-term consequences of having an
adjudication on his record, including barriers to getting a job,
enrolling in the military, and getting federal financial aid.
Through the counseling function, the lawyer could have advised Brian about the pros and cons of taking a plea, of going to
trial, and of the intermediate course of taking it step by step, including getting discovery and determining whether there is a
defense to the charges, such as self-defense in Brian’s case.
Moreover, at the initial hearing, the lawyer would have zealously advocated for Brian’s release pending trial. A well-trained
lawyer would have presented evidence to the court, or at least an
argument, about the adverse effect of keeping a first-time offender locked up over a weekend, offered home-based alternatives to
detention, and painted a favorable picture of Brian to the court.
After the initial hearing, the lawyer would have conducted a
full investigation, not only into the charges, but also into Brian’s
life. The lawyer would have discovered that Brian has an auditory-processing disability and does not fully comprehend what is
being said to him, so that putting questions, answers, and other
information in writing greatly aids his comprehension and the
lawyer’s ability to gather information about Brian and his case;
that the victim in this case (Brian’s special education teacher)
did not want to press charges or testify against Brian at trial;
that Brian is a great student and had never been in trouble in
school; and that Brian has a valid claim of self-defense.
As a result of the investigation, the lawyer would have filed a
motion with the judge for special accommodations for Brian so
that he could understand the proceedings, thereby also informing the court about Brian’s auditory-processing disability and the
role it played in the incident at school. To support the motion, the
lawyer could have included an affidavit from Brian’s special education teacher, who knows what a great student Brian is and feels
strongly that charges against Brian should be dropped. If the
state continued to pursue charges against Brian, the attorney
could have presented a well-supported case of self-defense, including the testimony of Brian’s special education teacher.
In delinquency as in dependency cases, an effective lawyer
presents to the court a well-thought-out disposition package
that the lawyer has developed in consultation with the client,
the client’s family, other child-serving professionals who are
familiar with the child’s strengths and needs in various areas
(such as education, and physical and mental health), and provider agencies. The effective lawyer does not solely rely on other
agencies—such as the state child welfare agency, in dependency
cases, or the juvenile probation office, in delinquency matters—
to put together a disposition plan; the lawyer is instead an active
participant and leader in this planning. Moreover, once in court,
the effective litigator presents evidence to convince the court to
order the proposed disposition plan. Just as in an adjudicatory
hearing, at the disposition hearing, the lawyer calls witnesses,
both lay and expert, to testify to the benefits of the proposed
disposition plan. By cross-examining witnesses and challenging evaluations, the child’s lawyer also holds other parties to
their burden of demonstrating to the court why their proffered
plan is the preferred alternative to the child’s. In Brian’s case,
for example, an effective lawyer would advocate for a disposition that maximizes Brian’s chances for success, so that he
doesn’t violate a term of his probation, or reoffend, and end up
going deeper in the system. The fact that Brian is in a special
education class should be a flag to his lawyer to bring in experts
who can evaluate Brian and determine whether he has special
needs that are not currently being addressed. If, for example,
Brian has auditory-processing deficits or other disabilities that
make it harder for him to process social cues from others, he
many need an aide to help him at school. Without such intervention as part of his disposition, Brian is likely to have another
problem with his teacher or another student in the future and
will fail the terms of his probation.
“We see a lot of issues in education where youth are frustrated because they are not getting what they need at school or they
have been moved so much,” observes Seattle’s Trupin. “An attorney can make sure there’s educational continuity and they
get the special education they need.”
Fundamental to our system of justice is the right of the party
at risk of losing his or her liberty to participate fully in the proceedings that will determine his or her future. In dependency
and delinquency matters, the right to participate requires that a
child have counsel, so that it is meaningful participation and not
just rhetoric.
If you have to fix a car, you need someone trained and able to
fix your car. You need a mechanic. In a courtroom, where your
rights need to be protected and secured, the tool you need is a
professional trained in the courtroom setting. You need a lawyer.
Especially when you are a child, you need a voice that only a lawyer can provide. And the rewards to the lawyer, in turn, are immense. “Nothing feels better, nothing in life can replace the feeling you have when you make such a significant difference in a
child’s life—that you were able to move a child from a place that
was potentially dangerous and harmful to a place where they are
safe and happy,” explains Coward. “And they look up to you like
you’re their biggest hero, like you just saved the world, because
you listened to them and you made a difference.” q
Published in Litigation, Volume 38, Number 1, Fall 2011. © 2011 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not
be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
8