Yesterday, in response to a recent news story about the role of settlement agreements in special education disputes, many of Massachusetts' leading special education attorneys for students with special needs, including Attorney Lillian Wong, issued the following statement:
To Channel 5 News:
The undersigned are attorneys who represent parents and children in education cases throughout Massachusetts. Some of us work for not-for-profit law firms and others engage in private practice, but we all have substantial experience with the settlement process as well as with special education litigation in Massachusetts.
Your recent story about settlement agreements in special education cases was somewhat misleading in appearing to suggest that such agreements are an unusual and perhaps inappropriate practice. While all students are entitled to a free appropriate public education from their local public schools, as in many areas of today’s society, it is not unusual for there to be disputes between the participants in the process. In the vast majority of all special education matters, parents and school districts work together and agree on appropriate accommodations, services and programs for special education students.
However, for a small fraction of all special education students, parents and school districts disagree about how a school district should provide the student with a free appropriate public education. When these matters cannot be resolved at the local level, parents have the right to go to a due process hearing before the Bureau of Special Education Appeals.
Like any litigation, a special education hearing can become expensive and risky. Therefore, many parents choose to enter settlement agreements, even paying part of the costs of special education programs, rather than go to a full hearing and risk losing. This is reflected in statistics from the Bureau of Special Education Appeals, indicating that over the last 10 years between 95 and 97 percent of all of these disputes are resolved without a full hearing. (See attached) This is not an unusual statistic. In Superior Court in Massachusetts the percentage of all types of litigation disposed without a trial is strikingly similar. (See attached)
As with any area of law, the terms of settlement agreements vary based on the individual facts in the case, including the strength of the merits of the case. Thus, the very fact that settlement agreements vary does not necessarily mean that the agreements are unfair or that they reflect discrimination or favoritism. To suggest otherwise is both misleading and unfair.
Your news story did, however, shine a light on a very serious problem: that in school districts with high poverty populations, many parents whose children are not receiving the special education and other services that they need do not even get to the settlement table because they do not have access to legal representation and expert evidence. Channel 5 found that, in the most affluent school districts, there were 405 settlements but only 15 in the least affluent school districts. This disparity speaks more to the lack of access to counsel and experts than to any other factor.
Many families with children with disabilities are poor; studies have found that one-quarter of students in special education have families with incomes below the poverty line and two-thirds have family incomes of $50,000 or less. While parents are often unable to find attorneys, school districts in Massachusetts are always represented by attorneys, usually either experienced employees or law firms with specialties in special education. Many parents who are poor also have limited education and may not even speak English, so they are unable to even consider filing for due process without an attorney to help them. Public interest organizations that provide free legal services are overwhelmed by the demand for legal assistance in special education matters, and turn away many families because they do not have the resources to help them. (A 2015 study by a taskforce of the Boston Bar Association noted that in 2013, legal services organizations were unable to help more than 54,000 individuals and families who had contacted them requesting assistance.) A substantial increase in funding for legal services is needed to begin to address these disparities.
In addition, the Massachusetts Department of Elementary and Secondary Education should step up its oversight and assistance for school districts that serve large numbers of children living in poverty. The Department can make use of a wide range of incentives and enforcement activities to improve special education programs.
Finally, private enforcement of the rights of students is a key component of achieving better education results throughout the Commonwealth. While all of us (and many other attorneys) devote significant amounts of time and resources on a pro bono basis to help families in need, these efforts could be substantially improved by reforms to existing laws and procedures that would make private representation more readily available by providing for attorney fees to prevailing parents, even when a case is settled rather than fully litigated.
Until we provide better access to legal help for families living in poverty and more oversight by DESE, we will continue to have the inequities that your story has brought to light. We hope that this focus of your story will lead to the reforms necessary to protect all students, regardless of income.
Sincerely yours,
James Baron
Robert Crabtree
Joseph Green
Sherry Gregg
Beth Karon Goldberg
Eileen Hagerty
Peter Hahn
Daniel Heffernan
Constance Hilton
Melanie Jarboe
Carla Leone
Marie Mercier
Michelle Moor
Kristin Palace
Alicia Parmentier
Ellen Saideman
Beth Simon
Tim Sindelar
Jill Aubin Updegraph
Charles E. Vander Linden
Lillian Wong
The Children’s Law Center of Massachusetts
The Disability Law Center
Massachusetts Advocates for Children