During the pre-
litigation stage, a school
district will often
attempt to work out
disagreements with
parents in a series of
meetings involving the
entire IEP team.
boy proper health care services and that
the parents had been denied their right
to assist in key decisions related to their
son’s IEP. The judge ruled in the District’s
favor on the fifteen other issues. With this
ruling, the case was now ripe for federal
court litigation.
As the Brenneise case shows, an administrative hearing puts the parties on
a collision course for litigation. There
comes a time in a standoff between parents and school officials when one side
seeks outside intervention to resolve the
impasse. But I would strongly encourage
the use of your state’s special-education
mediation services to find solutions to
disagreements prior to moving to the
administrative hearing stage. Unfortunately, the Brenneise case illustrates what
can happen when mediation fails.
There comes a time
in a standoff between
parents and school
officials when one
side seeks outside
intervention to resolve
the impasse.
The (Stressful) Litigation Stage
In January 2008 the litigation stage began
when Robert and Allison Brenneise filed a
“complaint” against the District in federal
court. In essence, they asked the court to
overturn the OAH decision that had ruled
for the District on fifteen out of eighteen is-
sues; they also complained that the District
was still refusing to provide their son the
OAH-ordered nursing care. As a remedy,
www.TheHomeschoolMagazine.com
the Brenneises wanted the District to fund
“compensatory education” for their son to
make up for the years of missed in-school
special education.
The End of the Battle?
Today, more than four years after the filing of a court complaint, the Brenneise
case still drags on. The Judge has denied the family’s claim for compensatory
education, finding that Allison’s homeschooling was a success. Her son had
“made significant progress in his home
program,” at least as much as would have
occurred in public school. Next up: a jury
trial set for June 2012 to litigate the Brenneises’ claims of intentional discrimination. And if the case does not settle, it
may go on for a good long time before
reaching its final conclusion.
In parting, I offer this advice: parents
of a special-needs child should strive to
find pre-litigation solutions to resolve disagreement with their school district, using
mediation if needed. When disagreement
Parents of a special-
needs child should
strive to find pre-
litigation solutions to
resolve disagreement
with their school
district, using
mediation if needed.
becomes litigation, justice is usually not
swift, and families can be stuck in the past
fighting stressful legal battles for years to
come.
Antony B. Kolenc (J.D., University of
Florida College of Law) is an attorney,
author, and speaker. He and his wife have
homeschooled their five children for over
a decade. He is author of The Chronicles
of Xan historical fiction trilogy, as well as
several legal articles. Learn more about
him at
www.antonykolenc.com.
If you have a legal-related question,
email
TL@TheHomeschoolMagazine.com
and Tony may get a chance to answer it in
his monthly column!
Endnotes:
1. 20 U.S.C. §§ 1400 et seq.
2. Some homeschooling organizations, such as the
Home School Legal Defense Association (
HSLDA), caution homeschooling families against
seeking government assistance under the IDEA,
due to concerns with government intrusion. See
www.hslda.org/docs/nche/Issues/F/Federal_
IDEA_Disability.asp for details.
3. When a school district has failed to provide a
child appropriate special education or services,
the Supreme Court has recognized that, in some
cases, parents may unilaterally choose an alternative placement for their child and then sue to
have the school district reimburse them for these
costs. See School Committee v. Department of
Education, 471 U.S. 359, 370 (1985).
4. The facts and law discussion regarding the Brenneise case are drawn from Brenneise v. San Diego
Unified School District, 2011 WL 1212711 (case
no. 08CV28-MMA) (S.D. Cal. 2011), as well as
the “complaints” and other related orders from
the same court: Nov. 7, 2008 (2008 WL 4853329)
and Oct. 18, 2011 (2011 WL 4945289).
5. See Bollero, Jennifer. “ 8 Steps to Better IEP Meetings: Play Hearts, Not Poker” (available at www
. wrightslaw.com/advoc/articles/iep.bollero
. hearts.htm).
