‘Intimidation tactic’ — special ed parents see school attorneys in routine meetings

From Houston Public Media:

Leah Kelly’s daughter, Harper, has autism, treatment-resistant depression and extreme social anxiety.

“I used to say that she had alphabet soup,” Kelly said.

The family sold their home when Harper was in elementary school and relocated to Austin ISD in search of better services. For a while, things were mostly good.

But when Harper was in middle school, an attorney representing Austin ISD began showing up to meetings about her special education services and goals. Kelly did not have an attorney in the meetings.

“It’s very contentious,” Kelly said. “It creates an enormous amount of anxiety in me and my family. It doesn’t lend to collaboration.”

In early February, Kelly attended a meeting to discuss how to improve services for Harper. The meeting was delayed while the group waited for a district attorney to join.

“We don’t have legal,” Kelly told a district staffer. “Why do we have legal from the district representing when the parent doesn’t have legal?”

“In light of Fernando’s participation,” the staffer responded, referencing the presence of a special education advocate. Advocates typically have some level of expertise in special education law, and their role is to help parents understand their rights and obtain better services.

“Fernando’s not a lawyer,” Kelly told him.

Leah Kelly, her daughter Harper and her husband, Richard.

Kelly asked the district to provide a written policy about the presence of attorneys in these types of meetings. She never received a response.

Three days later, Houston Public Media asked Austin ISD about the practice. Kelly, a member of the district’s Special Education Advisory Committee, also advocated against the practice. She had another meeting in late February — and this time, the district did not send an attorney.

“Our last ARD meeting was successful,” Kelly said in March. “It was literally the only ARD meeting that we’ve had in two years that’s ended in agreement.”

In April, an Austin ISD spokesperson said the inclusion of attorneys in ARD meetings “is no longer a common practice in Austin ISD.”

“We recognize that having an attorney present on behalf of the district can affect what is intended to be a collaborative process,” the spokesperson wrote. “Austin ISD now only has an attorney present in meetings if the student’s family chooses to bring legal representation.”

The spokesperson did not respond to a question about whether “legal representation” includes non-attorney advocates.

ARD meetings are supposed to be collaborative, but they sometimes become confrontational. Families seek better services; district staffers disagree. Parents argue the presence of attorneys prevents progress and compromise.

“ARD” stands for Admission, Review and Dismissal.

“It’s a neat acronym because it basically is comprehensive of the three functions of the committee,” said special education attorney Jose Martín, who advises and represents school districts.

First, students are evaluated and, if appropriate, are granted special education services. Their progress and services are reviewed over time, usually on an annual basis. Eventually, they’re dismissed when they age out, or when services are no longer needed.

“Most of what ARD committees do is the middle one,” Martín said. “Review.”

The committee reviews what’s known as an IEP, or Individualized Education Program, outlining services and progress goals for the student. The group usually consists of parents, teachers, and district admin.

As Martín pointed out, the federal government generally frowns on the inclusion of attorneys.

“The Department of Education has spoken on this, and so has Congress — as they’ve commented, when the law was passed, that they’d prefer for attorneys to stay out of IEP meetings,” he said. “Because they feel that attorneys bring adversarial postures and perspectives to the IEP process that are inconsistent with what the spirit of the law is supposed to be. The spirit of the law is supposed to be a collaborative process between parents and school districts.”

Asked about the Department of Education’s current stance, a spokesperson pointed to a 2016 letter from Ruth Ryder, then-acting director of the department’s Office of Special Education Programs (OSEP).

Ryder wrote that the attendance of attorneys “should be strongly discouraged” because their very presence “could have the potential for creating an adversarial atmosphere that would not necessarily be in the best interest of the child.”

That guidance isn’t always implemented.

Over the past half year, Houston Public Media submitted hundreds of public information requests for special education-related records and followed up on tips from families across the state.

We identified more than a dozen districts that have invited attorneys to ARD meetings when families do not have an attorney present. In East Texas: Katy, Spring Branch, and Brazosport ISDs. In North Texas: Allen, Plano, and Mansfield ISDs. In Central Texas: Killeen, Georgetown, Eanes, and Austin ISDs. In South Texas: Schertz-Cibolo-Universal City and Pleasanton ISDs. In the Concho River Valley: San Angelo ISD.

The districts offered a range of justifications, and most of them said the presence of an attorney is rare. They generally pointed to active litigation, the presence of legal representation for the family or other case-by-case circumstances.

It’s difficult to get a clear picture of exactly how widespread the practice is among the more than 1,000 school districts in Texas; while some districts turned over redacted records related to ARD meetings, others, like Austin ISD, cited confidentiality and withheld the information entirely. Some districts claimed the records would be costly to produce, offering to provide them for hundreds or thousands of dollars.

Critics of school district attorneys attending ARD meetings describe the practice as one element in a “David and Goliath” fight between parents seeking adequate services for their disabled children and districts that have easy access to legal representation.

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‘You don’t want to attorney up unless the parent is attorney-ing up’

West of Houston in Katy ISD, Sarah — who asked that we only use her first name due to fear of retaliation — took issue with the district’s services for her daughters a few years ago.

“There was a lot of bumping heads,” she recalled.

Sarah started bringing an advocate to her ARD meetings. Katy ISD responded by bringing an attorney to the meeting.

“I kind of felt that this was an intimidation tactic,” she said.

In a statement, Katy ISD said the presence of an advocate is potential grounds for the presence of a district attorney.

“Sometimes parents choose to bring their legal representation or advocate to an ARD,” a spokesperson wrote. “In cases wherein a parent has informed that they plan to do so, the District may choose to have its counsel present as well.”

Special education attorney Jose Martín said he avoids attending ARD meetings, even when a family has an advocate present.

“I generally tell school districts to handle it, study it, get advice,” he said. “But this is a lay advocate; it’s not an attorney. You don’t want to attorney up unless the parent is attorney-ing up.”

But he can understand some situations where a district might feel differently.

“If the parent has obtained an advocate, and the team can’t make progress because of the advocate’s positions, and or the advocate’s postures and behavior at the meeting, then an ARD committee might be tempted to have an attorney come in to kind of see if they can help regulate the process,” he explained.

Mara LaViola is an advocate and a parent. She’s been steeped in special education law for years. She’s trained as a lawyer, was licensed to practice in New York, and has represented Texas families as a special education advocate.

“I do think that sometimes well-intentioned advocates can create some problems,” she said. “But I think the schools make it worse by not simply saying, ‘Hey, can we talk to you about this?’ They just come in like bulldogs, too, and put up barriers. So, I don’t think it’s enough to say, ‘There are some bad advocates out there.’ If there is an advocate that is acting inappropriately, then you can take them aside and say, ‘This isn’t collaborative, can you tone it down?'”

As a parent, LaViola has also dealt with attorneys in ARD meetings. Two of her three kids have disabilities. The youngest child, Zach, was diagnosed with a stroke and autism at a young age.

After the family moved to Eanes ISD in the Austin area, an attorney began attending ARD meetings.

“The fight became very personal against myself, my husband and Zach,” she said.

‘When trust begins to erode’

Eanes ISD Assistant Superintendent of Curriculum, Instruction and Assessment Molly May said the district avoids inviting attorneys to ARD meetings.

“We don’t want attorneys present,” she said. “We don’t think it adds to a collaborative overall feeling.”

She said the decision is made on a case-by-case basis, generally based on the presence of legal representation for the parent or ongoing litigation.

“It really depends on the situation,” she said. “Again, we’ve had many, many ARDS with just advocates; we’ve not brought an attorney. And we’ve had ARDs with attorneys (representing the family), we haven’t brought our own attorney. But then sometimes we do choose to bring an attorney.”

Although federal guidance explicitly discourages the presence of attorneys in ARD meetings, the practice remains legal. The result: a patchwork of district-by-district policies.

Districts and attorneys said there are several reasons administrators might seek representation at ARD meetings in cases when parents don’t have an attorney present. First and foremost: special education is heavily regulated, and disagreements can lead to expensive litigation.

“It is a whole different legal set of circumstances,” May said. “You definitely see lawyers involved in other parts of education, but not nearly to the extent you see that in special education.”

Administrators want to ensure compliance with the complicated federal laws protecting students with disabilities. Students who don’t receive proper services fall further behind, and districts that fail to comply with the law can face legal trouble — sometimes leading to high-dollar settlements where districts cover compensatory services.

Andrea Chevalier is director of governmental relations with the Texas Council of Administrators of Special Education.

“Unfortunately, sometimes mistakes do get made,” she said. “And those are the times where I think (school districts) really work with their attorneys to figure out what is the corrective course of action … I think the district has the right to protect itself and the right to defend itself, and that means having legal counsel because there are laws, and we need professionals to help get districts through those situations.”

She said she can understand the perception that the presence of a district attorney can create “an imbalance of power,” and emphasized that “it’s incumbent upon the district to work with the parent” before a disagreement is elevated to a formal dispute resolution process.

Attorney Andrew Tatgenhorst represents school districts for Thompson & Horton, LLP, including by attending ARD meetings — sometimes when families only have a non-attorney advocate.

As he pointed out, some advocates are connected to law firms that seek formal dispute resolution.

“It’s my experience that most of the advocates — a big percentage of them — are either working directly for law firms, or are connected to a law firm in some way,” Tatgenhorst said. “You know, an advocate shows up in an ARD meeting a few times, and then that turns into a due process case, and all of a sudden, an attorney (representing the family) shows up.”

He said he’s read the federal guidance opposing attorney attendance in the IEP process.

“I understand the concerns,” he said. “I’m more of a resource for when perhaps someone misinterprets the law, someone doesn’t understand the law — which could come from my client just as much as it could come from an advocate or from a parent. I’m there to offer that clarity, and that helps everyone when I do that.”

Jim Walsh is a founding partner of Walsh Gallegos Treviño Kyle & Robinson, a powerhouse firm in Texas education law that has sent attorneys to ARD meetings when families don’t have an attorney.

He said ARD committees don’t need attorneys or advocates “when there is a strong, trusting relationship between the school and the parents.”

“But when trust begins to erode, then people start to look at the detailed procedures in the law and may be accusing the school district of violating those things,” Walsh said. “And we want to make sure the school understands what the requirements are and that they comply with them. We go to ARD meetings when we’re invited, and usually even if there’s not an attorney (representing the family) physically present, there’s an attorney giving advice to a parent, or there’s an advocate.”

For Austin ISD parent Leah Kelly, a school district’s decision to invite an attorney into ARD meetings erodes trust even more.

“We have had — and I won’t name them — but we have had administrators say, ‘We would love to be able to do what you’re asking, but when district legal is here we cannot,'” she said. “So I think it really prohibits children from getting what they need.”

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