Antony Barone Kolenc
Legally
Speaking
Anatomy of a
Special-Needs Lawsuit
Educating a child with a disabil- ity can be a daunting challenge filled with joys and sorrows. To assist, families with a special-needs child often turn to federal laws,
such as the Individuals with Disabilities
Education Act (IDEA),
1 which requires
school districts to provide special education and other services. In many states
even homeschooled children qualify for
assistance under the IDEA.
2 In a perfect
world, parents and school officials would
cordially collaborate to develop an Individualized Education Program (IEP) to
aid the special-needs child. But in reality
disagreements often happen, sometimes
leading to lawsuits where parents try to
force school districts to pay for private
or home education services.
3 My column
this month gives you a glimpse into the
stages of an IDEA lawsuit: Brenneise v.
San Diego Unified School District4—one
family’s ongoing legal battle against its
local school district.
The Pre-Litigation Stage
Cooperation between parents and school
officials can break down over many is-
sues. In the case of Robert and Allison
Brenneise, the relationship soured with
a San Diego school district (“the Dis-
trict”) when they disagreed with their
child’s assessment and proposed IEP.
The Brenneises are parents of an autistic
boy who has also suffered brain damage
and requires daily nutrition through a
tube inserted into his abdomen. Since
the age of 6, their son had been receiving
special education services under the
IDEA. But in 2003, after three years of
public schooling, his parents concluded
that his IEP was inadequate to address
his needs. They brought him home.
Each new school year
. . . the parents and
District continued to
disagree on the details
of their son’s IEP.
nurse to assist the boy with his daily tube
feedings. For a brief period in July 2006
the parents gave conditional consent to a
summer IEP, but negotiations again broke
down for the 2006–2007 school year. Thus,
the Brenneises continued to homeschool,
with the District providing services such
as speech and occupational therapy.
Let me pause a moment here. During
the pre-litigation stage, a school district
will often attempt to work out disagree-
ments with parents in a series of meetings
involving the entire IEP team. These can
be intimidating and anxious encounters,
where parents may feel outgunned and
disadvantaged. But more than any other
stage in the process, this is the moment
where parents can get the best results
for their child. Jennifer Bollero, an attor-
ney and special-education mediator, has
penned an informative article to help par-
ents in these tense negotiations.
5 As will be
seen as the Brenneise case unfolds, com-
promise at this stage may save you literally
years of stressful litigation later.
The “Due Process”
Administrative Stage
In November 2006 the District gave up
on the Brenneises and filed with California’s Office of Administrative Hearings
(OAH), whose administrative judges
conduct “due process” hearings when the
parties cannot find common ground. The
District asked the judge to find that its
proposed IEP complied with the IDEA. In
response, the Brenneise Family asked the
OAH judge to rule that the District had
violated their son’s rights under the IDEA.
Throughout 2007 the OAH held a series of “due process” hearings, allowing
the parents and the District to assert their
best legal arguments on eighteen separate
issues. This was a mandatory step: before a
party can sue, all administrative hearings
must be “exhausted” or else a federal court
may lack jurisdiction. Finally, in October
2007 the judge ruled in the parents’ favor
on three key issues. The court concluded
that the District’s refusal to provide a
nurse for the tube feedings denied the
www.TheHomeschoolMagazine.com
