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IBA: The Basics of Education Law for Lawyers

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By Catherine Michael, J.D.Chair of the Education Law Division of Hollingsworth & Zivitz, P.C.

In an increasingly complex world full of legal intricacies and overlapping requirements, the sphere of Education Law has become a jungle filled with a multitude of federal and state laws, regulations, case law decisions, and executive orders. It is a practice area that requires a thorough knowledge of the law for both those representing schools and parents.

Federal law plays a major role in education cases today. These laws include: No Child Left Behind (NCLB), the Individuals with Disabilities Act (IDEA), Section 504 of the Rehabilitation Act of 1973, FERPA, HIPPA, and the ADA. In addition to the requirements found in the federal system, Indiana must develop, maintain and operate its own school system. In Indiana, our rules provide for school structure and guidance. An entire article of the Indiana Code, Article 7, is dedicated exclusively to laying the framework for Special Education in public schools.

For education attorneys in Indiana who represent parents, the practice frequently involves Article 7 Special Education Due Process Hearings, Section 504 Due Process Hearings, and school disciplinary issues. Both IDEA and Article 7 of the Indiana Code require all public and charter schools in the State to develop an Individualized Education Plan (IEP) for each student with a disability who is qualified for special education. This IEP must be specific to the child and provide specially designed instruction. This “Specially designed instruction” must address the content, methodology or delivery of instruction, specific to the child’s unique needs resulting from the disability, while ensuring the child’s access to the general curriculum so that he or she can meet the educational standards that apply to all children. 34 CFR 300.39 (b)(3).

Unlike No Child Left Behind, there are no reporting requirements or state review as to a school’s compliance with the special education laws specific to individual children and their programs. Article 7 and IDEA require the parents to enforce the law if violations occur. This is done by instituting an “Education Due Process Hearing” thru the Indiana Department of Education. For example, if a school has not provided programming, or has failed to address an area of need for the child, the burden is on the parents to seek review.

For students with disabilities like autism or an anxiety disorder, the needs are not merely academic. The specialized and unique needs of a student with a disability encompass more than a mastery of academic subjects such as reading and math. These extend to include emotional and psychological needs, life skills, and social training. See County of San Diego v. California Special Educ. Hearing Office, 24 IDELR 756 (9th Cir. 1996).

What can often lead to litigation is that the law does not spell out to a clear and definitive degree what is “appropriate,” since it is meant to be specific to each individual child. “The contours of an appropriate education must be decided on a case-by-case basis, in light of an individualized consideration of the unique needs of each eligible student.” Board of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 553 IDELR 656 (U.S. 1982). This leaves practitioners relying extensively on federal case law for similar cases and expert testimony regarding the specific needs of that individual child.

Article 7 Special Education Due process hearings are hearings structured very similar to that of a trial. They can last three days or three weeks, depending on the number of witnesses and issues. Appeals of the hearing officer’s decision proceed directly into federal court.

Another focus of education attorneys representing parents is that of injury in school. Due to tort reform rules and the fact that a school is considered a public entity, the damages in school cases are capped and often there are many federal issues. There is also the need to exhaust administrative remedies in actions where one or more of the remedies may be a different education placement or need, such as a residential facility or private placement.

While this is a complex field, it is a very fulfilling one for many education focused attorneys. Practitioners for both schools and parents have the rewarding job of working to ensure that children are being educated appropriately and their needs are being met.•

Association Note: In the fall 2011, the IndyBar Pro Bono Standing Committee will be restoring its School Education Advocacy program. IndyBar teaming up with the Foster Youth Education Initiative to provide volunteer assistance to youth in need of a variety of educational services. IndyBar members interested in advocating for children with special needs, please watch Indiana Lawyer, IndyBar.org, and weekly e-bulletins for more information about early fall training sessions.

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  • education law
    am question is have spec need child that goes to merrivllve school district he has 28 day that he missed from school some staff have dfr to come home while present do have case.

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  1. It really doesn't matter what the law IS, if law enforcement refuses to take reports (or take them seriously), if courts refuse to allow unrepresented parties to speak (especially in Small Claims, which is supposedly "informal"). It doesn't matter what the law IS, if constituents are unable to make effective contact or receive any meaningful response from their representatives. Two of our pets were unnecessarily killed; court records reflect that I "abandoned" them. Not so; when I was denied one of them (and my possessions, which by court order I was supposed to be able to remove), I went directly to the court. And earlier, when I tried to have the DV PO extended (it expired while the subject was on probation for violating it), the court denied any extension. The result? Same problems, less than eight hours after expiration. Ironic that the county sheriff was charged (and later pleaded to) with intimidation, but none of his officers seemed interested or capable of taking such a report from a private citizen. When I learned from one officer what I needed to do, I forwarded audio and transcript of one occurrence and my call to law enforcement (before the statute of limitations expired) to the prosecutor's office. I didn't even receive an acknowledgement. Earlier, I'd gone in to the prosecutor's office and been told that the officer's (written) report didn't match what I said occurred. Since I had the audio, I can only say that I have very little faith in Indiana government or law enforcement.

  2. One can only wonder whether Mr. Kimmel was paid for his work by Mr. Burgh ... or whether that bill fell to the citizens of Indiana, many of whom cannot afford attorneys for important matters. It really doesn't take a judge(s) to know that "pavement" can be considered a deadly weapon. It only takes a brain and some education or thought. I'm glad to see the conviction was upheld although sorry to see that the asphalt could even be considered "an issue".

  3. In response to bryanjbrown: thank you for your comment. I am familiar with Paul Ogden (and applaud his assistance to Shirley Justice) and have read of Gary Welsh's (strange) death (and have visited his blog on many occasions). I am not familiar with you (yet). I lived in Kosciusko county, where the sheriff was just removed after pleading in what seems a very "sweetheart" deal. Unfortunately, something NEEDS to change since the attorneys won't (en masse) stand up for ethics (rather making a show to please the "rules" and apparently the judges). I read that many attorneys are underemployed. Seems wisdom would be to cull the herd and get rid of the rotting apples in practice and on the bench, for everyone's sake as well as justice. I'd like to file an attorney complaint, but I have little faith in anything (other than the most flagrant and obvious) resulting in action. My own belief is that if this was medicine, there'd be maimed and injured all over and the carnage caused by "the profession" would be difficult to hide. One can dream ... meanwhile, back to figuring out to file a pro se "motion to dismiss" as well as another court required paper that Indiana is so fond of providing NO resources for (unlike many other states, who don't automatically assume that citizens involved in the court process are scumbags) so that maybe I can get the family law attorney - whose work left me with no settlement, no possessions and resulted in the death of two pets (etc ad nauseum) - to stop abusing the proceedings supplemental and small claims rules and using it as a vehicle for harassment and apparently, amusement.

  4. Been on social security sense sept 2011 2massive strokes open heart surgery and serious ovarian cancer and a blood clot in my lung all in 14 months. Got a letter in may saying that i didn't qualify and it was in form like i just applied ,called social security she said it don't make sense and you are still geting a check in june and i did ,now i get a check from my part D asking for payment for july because there will be no money for my membership, call my prescription coverage part D and confirmed no check will be there.went to social security they didn't want to answer whats going on just said i should of never been on it .no one knows where this letter came from was California im in virginia and been here sense my strokes and vcu filed for my disability i was in the hospital when they did it .It's like it was a error . My ,mothers social security was being handled in that office in California my sister was dealing with it and it had my social security number because she died last year and this letter came out of the same office and it came at the same time i got the letter for my mother benefits for death and they had the same date of being typed just one was on the mail Saturday and one on Monday. . I think it's a mistake and it should been fixed instead there just getting rid of me .i never got a formal letter saying when i was being tsken off.

  5. Employers should not have racially discriminating mind set. It has huge impact on the society what the big players do or don't do in the industry. Background check is conducted just to verify whether information provided by the prospective employee is correct or not. It doesn't have any direct combination with the rejection of the employees. If there is rejection, there should be something effective and full-proof things on the table that may keep the company or the people associated with it in jeopardy.

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