WHT Law

Common Mistakes Can Lead to Court

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Common Mistakes Can Lead to Court

School districts as well as par­ents often make common mis­takes that result in formal hearings or court cases that could be avoided. These repetitive issues that arise when disputes between parents and school districts reach official levels could be avoided by following some practical advice.

Common mistake #1:

Failure to make sufficient use of interpersonal skills

In about half of the cases, dis­putes are really personality conflicts, resulting when interaction between school staff and a parent becomes so strained that there is no room for compromise. School staff in the field are the best equipped to identify “high maintenance/high risk” families: those whose sufficient anguish may lead to anger and frustration directed square­ly at school district personnel. Just as with disabled children, disabled families need a special approach. Listening goes a long way. Not listening and power struggles cause disputes.

This is the easiest category of mistakes to avoid. When listening to parents, give them the opportunity to vent and to conclude that you are sympathetic and able to lend a sup­portive ear.

Common mistake #2:

Not following through

The most frequent complaint to parent legal representatives is that the school district has not been com­municating and/or has not done what it said what it was going to do. Nine times out of 10, when a school dis­trict has failed to follow through, the parents also voice frustration with an almost immediate defensive denial on the part of the administrator involved: “That’s not what I meant to say” or ” I never said that!”

These parents are often met with an unequivocal denial that the com­mitment was ever made or that a serv­ice was ever promised, rather than an apology and a quick, direct cor­rection of the mistake. This infuri­ates already frustrated parents, who admittedly are under pressure (and often angry) by the time they get to the office of an attorney. Better to face up to an error (if there was one) and move on than to deny the error ever occurred, incurring the hostili­ty and wrath of the parents.

Common mistake #3:

Categorical treatment manifested as “zero tolerance”

Often, parents appear in the lawyer’s office and say they approached an educator for a service and were told, “We don’t do that.” Or, “Chil­dren with your child’s disability all go to the XYZ Program.” Or, “It’s my way or the highway.”

Categorical treatment, within which zero tolerance falls as a sub­set, is a sure€‘fire way to drive parents insane. A better idea is what federal and state laws say a school district must do: treat each situation on a case€‘by€‘case, individualized basis. This way, parental confidence in the ability of the school district to meet the individual and unique needs of their children will be raised, and a greater rapport will be established between district and parents.

Moreover, any educator should recognize that, with young children at the early elementary level, they are likely to be compelled to work with these families for at least anoth­er six or seven years. To start off the relationship in a hostile fashion only allows it to fester through the years, building hostility rather than happiness.

With good interpersonal skills, however, staff can turn potential parental enemies into some of the district’s top supporters.

Common mistake #4:

Refusal to provide a mandated service

The courts become quite upset with school districts that blatantly refuse to provide a service the law clearly mandates. Not only does this cause disputes, but it risks incurring personal liability against school board members and administrators for not providing the clearly mandated serv­ice. Many examples in decisional case law exist in which personal liability has been imposed for this reason.

Common mistake #5:

Graphic procedural violations

Often, parents will appear in the attorney’s office and say, “The school district completed their case study in 61 school days. Can I sue them?” The answer is usually no, because a procedural violation, to be action­able, must be serious.

A delay of a few days is human, not serious. A delay of a year or two is serious and actionable. A delay of months €‘ or years €‘ without expla­nation or even a simple phone call to the parents is likely to be serious.

If a school district knows it has incurred such a procedural violation, the best policy is to communicate with the parents immediately and offer a truthful explanation as to why there has been a delay. This way, school districts can be as transparent as possible and the parents can continue to have confidence that communications are open and honest. To say nothing fosters suspicion. Suspicion fosters lawsuits.

Common mistake #6:

Secretive behavior

Secretive behavior includes refusals to be open with parents about what is going on in their child’s pro­gram. Restrictive visitation/obser­vation rules, resisting discussions of methodology and/or doctrinaire adher­ence to a particular methodology are all good examples.

In a classic example, the parent of a cochlear implant child might think oral education is better. The district restricts visitation of the pro­posed program by the parent so she won’t see the extent to which ASL is really being used. This is deceptive and fosters suspicion. And, as men­tioned, suspicion fosters disputes.

Likewise, use of fuzzy bureau­cratic terms or acronyms that par­ents can’t understand falls within the “secretiveness” category. If parents don’t understand what is going on, they will become suspicious. Rule of thumb: communicate in simple, understandable terms and avoid $10 words or vague acronyms. Offer further explanation when parents seem confused. Avoid officious behavior.

 

Sometimes parents can make mis­takes as well.

Common parental mistake #1:

Desire to fight for the sake of fighting

Often, parents are so angry and frustrated over a child’s difficulties that they want to displace their anger squarely on the district, sometimes for no apparent reason. Often, even after an attorney obtains everything the parents are seeking without a hearing (and this is the attorney’s duty if at all possible), parents then become angry that they have not had their “day in court,” or that they have to pay attorney fees.

These families will want to fight regardless of what you do. Nothing will please them. At some point, it is nec­essary to draw the line, grit your teeth and conclude that the family will nev­er be happy, even when the educators’ efforts to satisfy the needs of the child can be described as Herculean, as was done by a judge in one case.

Common parental mistake #2:

Greed

Sometimes, school districts enter into an amicable settlement, either orally or in writing, for a reason­able retroactive reimbursement. However, on the day the agreement is supposed to be finalized, the parents ask for more! From a school dis­trict perspective, this should not be tolerated in very many cases.

If everyone has bargained in good faith, there is no reason to reverse positions just because of greed. With­out some very compelling reasons, or a significant miscalculation, hold to the deal you’ve made.

Common parental mistake #3:

Not listening, or taking everything as a promise

Sometimes events are visualized by members of a family under severe stress €‘ or with a multitude of bor­derline personality disorders €‘ which never occurred. These families also tend to thrive on conflict, so it is of no use to engage in confrontations.

The best approach is to pin down every communication with written correspondence (return receipt) to clarify the communication and ensure that all communication is accurate and, of course, truthful.  A firmer approach with families that manifest this kind of dysfunction will usually engender respect, although there can be times when such a plan might backfire. Use your judg­ment!