by Thomas W. Blessing
Education Attorney
Partner
MASSILLAMANY JETER & CARSON LLP
317.417.0809
Indiana lawmakers are considering drastic changes to existing law that would have a major negative impact on parents of children with disabilities. I was in some of the committee hearings on the House bill on February 13. The committee chairman admitted that he was asked by a law firm which represents schools to sponsor this bill. Attorneys, lobbyists and insurance companies for school districts are pushing these new laws to discourage—even punish—parents from advocating on behalf of their children. There are two bills being proposed: SB 507 (passed committee last week) and HB 1629, which is scheduled for committee vote Monday, February 18, 2019. Click here http://iga.in.gov/documents/d818d017 to view Monday’s House Education Committee agenda and to view the names of the committee members.
The very first thing which the House bill (HB 1629) proposes is closing Indiana’s Open Door Law. It would change the definition of “public record” to exclude internal school emails from that term. Why? Because school districts don’t want parents to see the emails which their administrators and staff send each other. I know this because over the past nine years I’ve read thousands of internal school emails in dozens of cases I’ve handled for parents. I always request the school’s emails in discovery. Unlike the “vanilla” documents in a student’s file (e.g., IEPs, report cards, attendance records, progress reports, disciplinary records), these emails often contain crucial evidence of legal violations, incompetence and even corruption on the part of school administrators and staff. As a result, some school attorneys object to producing them in discovery, arguing that such emails are not part of a student’s “educational record.”
One recent example was an email from a frustrated special education teacher complaining to her co-worker that she had never been provided a copy of my client’s IEP. The school’s lawyers objected to producing the emails, but fortunately the Hearing Officer ordered them to be produced. I’ve seen emails documenting a school’s improper predetermination of a child’s IEP, emails between school staff altering documents and school employees trying to push kids out of a school system because a school couldn’t manage his behaviors.
This bill is inconsistent with federal law, because internal school emails are considered a public record under the federal Family Educational Rights Privacy Act (FERPA). 20 U.S.C. §1232g; 34 CFR § 99.3. And even though Indiana public school employees work for us—the taxpayers—this bill would eliminate transparency and ensure that parents never see the emails that school employees are sending one another about their disabled children. It would make it much harder for parents to obtain evidence that a school district has violated their children’s educational due process rights. In any other area of civil rights litigation, the defendant’s internal emails are generally discoverable. Indiana public school districts should not be allowed to close the “open door” and hide this important evidence from parents.
The second major problem with this bill is that it would hold parents liable for a school district’s attorney fees in a manner inconsistent with another federal law: the Individuals with Disabilities Education Act (IDEA). 20 U.S.C. § 1400. Like many federal civil rights laws, IDEA allows a parent who successfully brings a Due Process hearing request (a “prevailing party”) to recover her reasonable attorney fees from the school district. Congress wrote this fee-shifting provision into IDEA and other federal civil rights laws because it knew that most people could not afford a lawyer to vindicate their rights unless they could recover their attorney fees.
Many of the parents I represent are single mothers. They have at least one disabled child, sometimes more. Sometimes they themselves have a disability or are unemployed. Raising a child with special needs is a full-time job. Most of my clients would not be able to afford a lawyer to represent them unless they could get reimbursed for their attorney fees.
This bill would make it difficult, if not impossible, for parents to afford advocating for their children’s rights. Not only would they have to pay their own lawyer, they might also have to pay the school’s lawyer. Under this bill, if a parent files a Due Process hearing request against a school district and does not recover more than the school district had offered her, the parent would have to pay the school district’s attorney fees—even if she wins. All a school district has to show is that the parent did not do better after a hearing than the school’s settlement offer and the parent would have to pay its attorney fees.
This bill turns the whole “prevailing party” concept of IDEA upside-down. And unlike the IDEA fee-shifting provision, under this bill a judge would have no discretion but to award a school district attorney fees (which under the bill do not even have to be “reasonable”) upon request. To add insult to injury, this bill wouldn’t just require parents of special needs children to pay the school district’s attorney fees, it would also make them pay “court costs, and other reasonable expenses of litigation to the public school.” In other words, everything.
IDEA already has a provision for fee-shifting in favor of the “winner” at a Due Process hearing. 20 U.S.C. § 1415(i)(3). It also has an attorney fee provision for frivolous, unreasonable or groundless litigation (which is similar to existing Indiana law, see IC § 34-52-1-1(b)) and for litigating for an “improper purpose, such as to harass, to cause unnecessary delay, or to needlessly increase the cost of litigation.” Unlike this bill, both existing federal and Indiana law generally limit recovery of attorney fees to the “prevailing party.”
IDEA also limits recovery of attorney fees in certain specific, limited circumstances: a parent may not recover attorney fees incurred after an offer is made if she obtains relief not more favorable than the offer of settlement in certain narrowly defined situations. In contrast to this bill, the federal law only law limits a parent’s recovery of attorney fees in specific circumstances; it does not provide for shifting fees entirely from the school district to the parent if the parent’s recovery is less favorable than the school’s last offer. And although this bill is inconsistent with existing federal law, the most astonishing aspect of it is that parents would have to pay all of a school’s attorney fees—even if the school loses—if the parent recovers less than the school’s last offer. I have been practicing law since 1991 and have never seen anything like this bill in any law anywhere—state or federal.
But this bill gets worse by making it even more expensive for parents to advocate on behalf of their disabled children. Under current law, parents do not have to pay a filing fee or “court costs” when they file a Due Process hearing request; the fees for the Independent Hearing Officer and court reporter are borne by the school district. This bill would radically change that. It proposes that parents would have to pay half of the Hearing Officer’s fees. It would be like requiring plaintiffs in other anti-discrimination (race, gender, disability or age) civil rights litigation to pay half of the judge’s salary.
At the heart of IDEA is the promise of a Free Appropriate Public Education (FAPE)—a term which is clearly defined in the statute, its implementing regulations and decades of caselaw. Requiring parents to pay half of the Hearing Officer’s fees would eliminate the “Free” in FAPE and is totally inconsistent with federal law. By making parents pay half of the Hearing Officer’s fees and be faced with the spectre of paying not only their own attorney fees but the school district’s attorney fees and expenses (even if they win), parents will be unable to afford filing a Due Process hearing request. Of course, that is exactly what school districts, their attorneys and insurance companies are hoping for.
At the end of the bill (p. 11, l. 39-42; p. 12, l. 1-6) is a provision requiring an attorney or “advocate” (which the bill does not define) to disclose in writing to the client and court (not applicable in administrative Due Process proceedings) “any conflicts of interest” posed by representing a party against a school district. Attorney conflicts of interest are governed by Indiana Rules of Professional Conduct 1.7, 1.8, 1.10 and 1.11. The Indiana Supreme Court has exclusive jurisdiction over this subject. In any event, the bill does not define what constitutes a “conflict of interest,” and to the extent it does so inconsistent with the foregoing existing rules, it would be invalid. At a minimum, this language in the bill is ambiguous and unnecessary.
This bill is being sold as “pro-school” and “saving taxpayers money,” but in reality it is anti-parent and will not save taxpayers any money. And not just any parents: parents who have children with special needs. This bill is totally inconsistent with existing federal law. It will close Indiana’s “open door” by making internal school emails about our children off-limits, depriving parents of critical evidence which they need to prove their claims. It will make it too expensive for parents to advocate for their children.
To the extent this bill is being pitched as a way to avoid litigation and save taxpayers money, there are ways schools can do this without violating federal law and without harming parents: train school employees on IDEA and Article 7. Comply with IDEA and Article 7. Be honest with parents about their legal rights. Implement IEPs as written. Don’t expel children for behaviors related to their disability. If schools would take these steps, they would go a long way towards avoiding Due Process hearing requests.
I encourage you to contact every member of the House Education committee before Monday and ask them to “Vote No on HB 1629.” Better yet, show up Monday to show your opposition to this anti-special needs parent legislation. Here is the contact info for the committee members: