Should You Hire an Education Lawyer or a Non-Attorney Parent Advocate? Part Three

Having described these roles, I repeat the question, and then briefly flesh out my answers. Should you hire an advocate or an education lawyer? My answer is “it depends.” It depends on three things: First, at what stage is the disagreement or suspicion between you and the school district? Second, at what stage is in the IEP process are you? And third, what is your desired outcome, and how willing and able are you to compromise?

1. The stage of the disagreement. Perhaps I’m assuming too much. Maybe there’s no disagreement yet. Maybe you’re just confused and want to better understand your rights. In that case, you should definitely use an advocate.

Does that mean you should hire a lawyer at the first sign of trouble? Of course not. Your advocate, if you’re using one, understands the process, and is (hopefully by this time) a known quantity to the district. She will be less threatening to the child study team than a lawyer. Rely on her to help you to persuade the District to do what you know to be the right thing.

But at some point, you may realize that you and the district are just not going to agree. At that point, you have to ask yourself: How important is it? If your disagreement is over whether little Sarah gets speech therapy three times a week or twice a week, sometimes you just have to take a hit for the team and stand down. You may also have to do cost benefit analysis. If the services in question are something that you could potentially pay for yourself, you should compare the cost of doing so to the cost of hiring an attorney. (Although keep in mind, if you succeed in a lawsuit, the district has to reimburse your legal fees.)

If you get to the point, at any point in the IEP process, where you fundamentally disagree with the school district about your child’s program or placement, and there appears to be no more room for compromise, then it’s time to hire a lawyer.

2. The stage in the IEP process. I rarely go to IEP meetings, unless my client is very insistent and can’t be dissuaded. This is because if I go to an IEP meeting, then the district will bring their lawyer. In almost every IEP meeting I have attended, the supposedly collaborative process breaks down into the lawyers talking to each other, often grandstanding for their clients, and no compromise takes place.

Having said that, exceptions exist. I attended an IEP meeting recently with a parent whose child had been physically abused at school. She did not feel she could face the school personnel without a lawyer at her side. Also, sometimes after a parent sends a 10-day notice of a unilateral placement (i.e., warning that she’s going to send the child to private school and sue for reimbursement), the district will call an emergency IEP meeting. Meetings like that are very important for lawyers to attend, because it may be the last chance to reach an agreement that could avoid years-long litigation.

But for the most part, an advocate can provide a parent with the help she needs during the ordinary IEP process. Sometimes advocates will accompany a parent to mediation. But I think that once things have broken down to the level of needing a third party mediator, the parent probably needs to be very clear about her legal alternatives before accepting a settlement offer made in mediation. That requires a lawyer. And certainly, a parent who is going to petition for due process should, if at all possible, have legal counsel.

3. The parent’s objective, and ability to compromise. Special education disputes come in all shapes and sizes. One size does not fit all. If a parent wants speech therapy five times a week, and the district is only willing to provide one session a week, an advocate may be able effectively to broker a deal for three times a week. But if the parent is absolutely committed to getting five sessions per week, and unwilling or unable to give anything back in return, it may be necessary to seek a court order. That would require an attorney.

A much more common example of circumstances where there is no room to compromise is where a parent believes strongly that a child needs to be educated in a private school in order to access FAPE, and the district disagrees. In that case, unless one side can let go of its position, the dispute can only be decided on an all-or nothing basis. The child can only attend one school at a time. So unless the parent is willing to postpone or entirely surrender the idea of a private school placement, she will likely need to hire a lawyer.