ILNews

IBA: The Basics of Education Law for Lawyers

Back to TopCommentsE-mailPrintBookmark and Share
michael-catherine-mug.jpg Michael

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.

ADVERTISEMENT

  • 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.

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Applause, applause, applause ..... but, is this duty to serve the constitutional order not much more incumbent upon the State, whose only aim is to be pure and unadulterated justice, than defense counsel, who is also charged with gaining a result for a client? I agree both are responsible, but it seems to me that the government attorneys bear a burden much heavier than defense counsel .... "“I note, much as we did in Mechling v. State, 16 N.E.3d 1015 (Ind. Ct. App. 2014), trans. denied, that the attorneys representing the State and the defendant are both officers of the court and have a responsibility to correct any obvious errors at the time they are committed."

  2. Do I have to hire an attorney to get co-guardianship of my brother? My father has guardianship and my older sister was his co-guardian until this Dec 2014 when she passed and my father was me to go on as the co-guardian, but funds are limit and we need to get this process taken care of quickly as our fathers health isn't the greatest. So please advise me if there is anyway to do this our self or if it requires a lawyer? Thank you

  3. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  4. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  5. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

ADVERTISEMENT