What Does an Attorney for Special Education Students Do?

Attorneys for special education students are licensed to practice law in the state and advocates for a student using knowledge of and experience with the federal and state laws governing special education, including the legal protections afforded to children. Some attorneys have personal experience in this area of law. Maybe the attorney used to be an educator. Or sometimes the attorney has a family member, including their own child, with special education needs. In either case, the attorney has often witnessed firsthand how challenging it can be for parents to advocate for special education services on behalf of their child. As challenging as the process can be for families with an advocate or a special education attorney on their side, it can be even more challenging when a family is advocating on their own, without knowledge or expertise in the special education process.

Requirements of the Individuals with Disabilities Act

There are many obligations that school districts must meet to comply with the IDEA to identify and educate special education students.

There are many obligations that school districts must meet to comply with the IDEA to identify and educate special education students. After a parent consults with an attorney about the parent’s concerns about the student, the attorney will typically start the process by requesting and reviewing the student’s educational records. During the review, the attorney will identify various instances where a school district failed to follow the requirements of the IDEA and such failures have led to the student’s lack of educational progress. Examples of issues that an attorney for special education students may find in a student’s records are:

  • School district failed to identify the student as one who may require special education and related services and have them assessed for those needs;
  • School district failed to implement special education services that have been recommended and agreed upon by the student’s school team;
  • School district failed to convene periodic team meetings to discuss a student’s present levels, progress on current goals, and develop new goals;
  • School district failed to convene a team meeting when a student is failing to progress, even with the support of special education and related services, accommodations, modifications, and supports.

Attorneys for special education students may also review assessments of the student performed by the school district and determine whether an independent educational evaluation by a neutral professional is necessary to determine student’s current educational needs and provide recommendations on how those needs should be addressed by the school district in order to allow the student to make appropriate progress in the student’s educational program.

Ultimately, attorneys for special education students will review a student’s history and records and determine whether the school district has provided the student a free appropriate public education in the least restrictive environment. This is the legal requirement that all local education agencies must meet with respect to the special education students for which they are responsible.

Due Process Hearing

In California, the due process complaint is filed with an administrative/judicial agency called the Office of Administrative Hearings (OAH)

If the attorney believes that the school district has failed to provide FAPE, the attorney and parent may discuss the possibility of filing a complaint for due process against the school district. In California, a parent is not required to hire an attorney in order to file a complaint; a parent may choose to be self-represented. However, the school district will be undoubtedly be represented by counsel, so it is advisable that any parent contemplating a due process complaint (or who has had a due process complaint filed against them by a school district) be aided by an attorney.

In California, the due process complaint is filed with an administrative/judicial agency called the Office of Administrative Hearings (OAH). OAH employs administrative law judges who have the authority to hear due process complaints and make determinations whether a school district has complied with its obligations under IDEA to provide a child FAPE. If the issues raised in a due process complaint are not resolved informally or through mediation, the matter will proceed to a due process hearing for an administrative law judge to determine whether the school district has provided FAPE in the LRE to the special education student.