By: Carol S. Weinman, Esq., CAS, International Speaker and Autism Legal Expert
“Wow….a non-litigious lawyer – now that’s refreshing!” Those were the words uttered from an attendee of the Special Education session I presented at the February International Symposium on Cognitive Research and Disorders in St. Augustine, Florida. The session was entitled “How Best to Avoid Special Education Litigation.” My foremost guidance, as simple as it may sound, is cooperation and collaboration.
Of course, more easily said than done. Approaching the procurement of special educational services from an adversarial perspective generates a foundation for conflict. The stage is set and the players will act accordingly. We often minimize or lose sight of the impact of how we present what we are seeking as opposed to what we present. The how can be the game changer.
During my experience in advocating for parents seeking special education services, respect for each side’s perception and assessment of the student at hand is key in arriving at a desirable resolution. The encounter between the parents and the school district should be treated as a relationship, not a duel. That means compromise, respect, and active listening.
I recently had a case of a special education student who refused to go to school because her experience there was increasingly stressful and humiliating. For months, the school tried in every way they knew to convince her to come to school yet she refused. And, they remained adamant about their assessment of why this student wouldn’t attend and how to “fix” it to no avail. After several IEP meetings and discussions with school personnel, they agreed to consider an alternative educational placement in a private school. It was not a decision they arrived at easily. But, with openness and collaborative dialoguing, the school determined that this student may do better elsewhere. The parents and I convinced them that the needs for this child were beyond what they could provide. There was no arguing or heated discussions. We refrained from using threats as a tactic or blaming the school for what we believed was lacking. Instead, we agreed to do what was in the best interest of this student. And, that was achieved through creating a trusting, non-confrontational relationship over time.
If this matter had proceeded in a more adversarial fashion, we may have found ourselves in a Due Process Hearing. In the meantime, the student would have borne the brunt of lost time and the outcome would be left in the unpredictable hands of a hearing officer. The aftermath may very well have not satisfied either side and paved with angst, divisiveness and hostility.
All in all, we need to evaluate how we want to resolve our differences. Experience has proven to me that the approach we choose determines the result. It’s what has prevented me from the need to ever present my case to a hearing officer or presiding judge.