Lawyers Strike Gold in Special Education

Although she is not a student, Sandee Winkelman, of Parma Ohio, has learned a lot about education law. She and her husband are parents of two children with autism. This past February, they were in front of the Supreme Court over their son's education. The case brings to light a paradox that many parents of disabled children face throughout the school years.

Federal and state laws guarantee special needs children the right to a Free and Appropriate Public Education, or FAPE. Two such decrees are the Individuals with Disabilities Education Act (IDEA) and Section 504 of the Rehabilitation Act. As with any law, vague areas cause disagreements. Parents and schools are often at odds over "reasonable" and "appropriate" accommodations. Many times, lawyers become involved.

The controversies are often about money, despite what the laws say. The federal government has compounded the problem by reneging on a pledge to pay 40% of costs to educate disabled children under part B of IDEA. Neither schools nor parents are happy. Some attorneys are delighted, though. Special education law has become one of the "hot" specialties in the legal field.

When a special needs child enters school, parents and district representatives meet at least once per year to write an Individualized Education Program (IEP). An IEP is a legal document that spells out the child's education as far as instructional needs, accommodations, services, and goals. It is written by a team that consists of the parent(s), a school representative, teachers, and others who know the child or who have expertise about them such as a physical therapist, psychologist, etc. Many times, disputes arise over what should, or should not, be in the plan. Sometimes they are so highly contested that attorneys are brought into the process.

The Winkelmans disagreed with the school over the IEP for their son, Jacob. They believe that a private school specifically designed for autistic children is the best choice for his needs. Unlike his sister, who is also autistic and attends in the district, Jacob requires the intensive care that the private center provides. Parma City Schools had previously approved the facility, and Jacob made remarkable progress in the program. The Winkelmans felt that the plan proposed by the school would cause him to regress and deny him FAPE. School administrators refused to release any of the funds that they received for Jacob from the state of Ohio and demanded that he return to their system.

The family began the appeal process. They exhausted their state remedies, including formal due process hearings. Their case moved out of the state arena and into the Federal District Court in Cleveland. The United States Court of Appeals for the Sixth Circuit in Cincinnati changed everything. While the case was on appeal with the District Court, the Circuit Court decreed that parents could not appear in a federal court without a lawyer, despite the fact that other Circuit Courts in the country ruled parents had that right. The Winkelmans had thirty days to find representation or drop the case. As most families, they could not afford the fees, and the case was closed.

At one point, Sandee Winkelman became a target of the Cleveland Bar Association. They threatened to charge her with unauthorized practice of law. Several years ago, they did the same to another couple with a special needs child, Brian and Susan Woods. They eventually settled with their district. Sandee continued fighting, and last year the Supreme Court agreed to hear the case. She could not have done it without exhaustive work and the help of a generous, pro bono attorney, Jean-Claude Andre of California.

The Supreme Court case is about a parent's right to represent their child in federal court, but at the center of it is money. When the Sixth Circuit Court ruled that parents could not appear in federal court without an attorney, it did not provide the means for those who cannot afford legal fees to obtain one. At the same time, lawyers who specialize in this area of law cheered the decision. Families find themselves having to borrow money, charge the fees, take out second mortgages, or accept what schools offer. It is unlikely that lawmakers intended for this to happen, but it has become a growing problem. The Winkelman case seeks to resolve this quagmire.

The Winkelmans and Parma City Schools have been in and out of state and federal hearings since the disagreement began. Up to the Supreme Court appearance, the school spent over $1 million for legal fees to fight the family. The expenses for the Supreme Court representation, as well as other litigation, could bring the district's total close to the $2 million mark. The cost for Jacob to attend the private school, and graduate, would be less than $600,000.

What do the taxpayers in Parma, Ohio think of these numbers? This is not unique to Parma, though. It happens in communities all over the nation.

Consider the case of Deal vs. Hamilton County Department of Education in Tennessee. The school system admitted that they spent $2,280,000 on one lawsuit, against one student, and lost. Charles Weatherly, from Atlanta, was the attorney for the district until the school board replaced his firm. Itemized statements indicated that some of the money went to first-class travel, meals, and extravagant expenses. Ironically, the school district is one with an exceptionally large amount of students who qualify for the free lunch program. The case so outraged the community that they demanded that the district not spend another cent on fighting the family. Coincidentally, this case also involved an autistic child.

Although these cases represent financial extremes, many parents of disabled children face "big money" tactics of school attorneys daily. Some use tactics that amount to nothing less than intimidation. Ironically, school districts pay for the legal services with tax dollars that most parents pay into the system.

Some schools claim that they need the legal protection because of unreasonable demands. Rarely do parents get away with obtaining extreme accommodations for children who do not need them, but yes, it happens. Clearly, the Winkelmans are not unreasonable. They have never requested private education, or any other inappropriate accommodation, for their daughter.

The family is currently in another due process hearing with Parma City Schools. Two large legal firms, Squires Sanders and Dempsey, and Britton, Smith, Peters, and Kalail, are representing the school system. The Winkelmans are receiving council pro bono through local attorney Michael Goldberg. Andrew Cuddy, a lawyer from New York, has also joined their team on a pro bono basis.

Lawyers, disability organizations, courts, schools, and parents around the country are watching the Supreme Court case, as well as the current due process hearing in Ohio. There is a lot at stake, mostly for children with disabilities.