Do You Need a Special Education Attorney?

Hiring a lawyer can ensure your child's rights are respected.

By Jacqueline Neber October 29, 2019

You know when your child with special needs isn’t receiving the education that is right for him. Maybe he’s struggling in a class that’s not a good fit. Perhaps he’s not receiving the supports and services he’s entitled to outside of class. He might even be in the wrong school altogether. But going up against a school district and the New York State Education Department to fight for your child can be a daunting task for any parent. That’s where special education attorneys come in. They can help you understand your child’s rights, fight for his free and appropriate education, reach an agreement with your school, or get him into a new one. In fact, a special education attorney can make all the difference.

Why You Might Need a Special Education Attorney

The special education system in New York is complex. Some attorneys claim school districts don’t know which services are required for students with special needs, while others say schools are deliberately not providing the services these kids deserve. Laura Adler-Greene, an associate attorney at the law offices of Andrew Cohen in Garden City, says she believes district leaders do know the law. If they don’t, they have law firms to inform them.

On the other hand, many parents get stuck on the difference between an appropriate education and the best education their child can receive, says Gerald Raymond, a managing partner at Tully Rinckey PLLC in Syracuse. If parents have their child evaluated by someone outside the district, they could walk into a planning meeting for their child’s services with an idea that’s completely different from what school representatives are prepared to offer. In that case, conflict arises not because school authorities don’t know what they’re meant to provide, but because parents have a different idea.

How a Lawyer Can Help Your Child

Often a lawyer is necessary to get your school district to do what it must, says Bernard A. Krooks, founding partner of Littman Krooks LLP and head of its special needs department. A lawyer can help you get your child into a different type of class, receive the right services as dictated by her Individualized Education Program, or transfer to a different type of school. A lawyer can also help when your student has behavioral challenges, and help your student avoid the school-to-prison pipeline—a trend in which students with special needs are funneled out of public schools and into the criminal justice system. The American Civil Liberties Union reports that students with disabilities are disproportionately represented in the pipeline because of schools’ inadequate special education resources and a reliance on zero tolerance policies.

Once you’ve retained a lawyer, she can be as involved in your family’s progress as you want. Your attorney can attend IEP, Committee on Special Education, or annual review meetings with you or call for an impartial hearing or mediation. In some cases, a lawyer will take a family’s case all the way to federal court.

Raymond says having an attorney can make a big difference in your child’s well-being. In one case, after a student fell behind in school when the district took his 1-to-1 aide away, Raymond’s firm provided the CSE with documentation as to why the child needed an aide—and got the aide restored to the child. Having an aide can significantly increase a child’s well-being, performance in school, and safety.

Laura Davis, director of the Special Education Unit at New York Legal Assistance Group, says sometimes the impact of a lawyer might not look like much to an untrained eye, but it can mean the world to parents.

“I’m working with a family whose child spent four years in an inappropriate six-one-one [six students, one teacher, and one aide] class in a public school, and is now at Gersh [Academy],” Davis says. “[The mother says] her child can now look at her, sit in a chair for a couple of minutes at a time, wave goodbye. This is all so meaningful to the parent. To somebody else it might look like nothing, but to her, her eight-year-old child is now, for the first time, making progress.”

Finding an Attorney

In his experience, the special needs community is a connected, supportive one, Krooks says. Information, such as lawyer recommendations, tends to get passed around quickly. “You can also use Facebook, discussion and support groups, or simply search online,” he adds. But at the end of the day, Krooks says, it’s not necessarily that difficult to find someone who has the knowledge needed—though it may be a challenge to find a good match.

That’s why it’s important to vet each name. “You have to hire someone you can build a relationship with, someone who’s compassionate, who’s empathetic, who can represent your interests and your child’s, and who cares about your case,” Krooks says. “Trust your instincts. You have to feel comfortable.”

Affording Attorney Services

An attorney might be necessary to go up against your child’s school—especially in wealthier districts where schools often have big law firms on retainer. But affording a lawyer can be tricky no matter where you live—and, unfortunately, petitioners in education law cases do not get attorneys appointed for them by the court, as petitioners in family law cases do.

As Davis explains, it is especially important for families making lower incomes and families whose native language is not English to understand their parental rights. Many of these families, however, don’t have the means to pay retainers and fees, according to Ashley Grant, supervising staff attorney at Advocates for Children in New York City. But these fees, she says, should not prevent parents from seeking assistance.

For example, families can reach out to Advocates for Children, which is just one of several organizations in the city that connects families with lower incomes to legal resources. Some law firms will take on cases regardless of family income. As Krooks points out: “We’ll take on cases like this because we went to law school to help people.” When a lawyer helps a family win a case in New York, the firm can have their attorney’s fees reimbursed by the Department of Education, at no cost to the family.

A Special Education Success Story

Alicia Lewis’s* 6-year-old daughter has global developmental delays and is largely nonverbal. She needs a very small classroom, autism-specific methodologies, and an individualized teaching approach. When the New York City Department of Education placed her in an inadequate school last fall—twice—Lewis realized she needed the help of an attorney.

Lewis had gone through an initial placement meeting, in which she says DOE representatives “did not seem to factor in our input and the evaluations we submitted, and did not allow the professionals who evaluated our daughter to testify.” Lewis asked for a reconvene, but the placement recommendations made at that second meeting were the same.

“We were [finally] given a District 75 placement,” she says, “and we wanted to visit it, but it was a new site that wouldn’t be open until the first day of school. We were told to visit a similar site, and we did. But it seemed like none of our daughter’s needs would be met there. They had no autism-specific methodologies. We couldn’t even see any of the teachers or therapists. They hadn’t been hired yet.”

That’s when Lewis knew she had to hire an attorney. “When the DOE fails completely to provide an appropriate educational setting for your child, and you have no other choice but to seek resolution through an impartial hearing, having a lawyer is imperative.”

With the help of an attorney, Lewis informed the DOE she’d placed her daughter in a private special education school and would be moving forward with an impartial hearing. During the hearing, Lewis won the tuition for her daughter’s new school, meaning the DOE would handle all costs. Lewis also won at-home therapy for her daughter’s needs. Since then, her daughter has changed tremendously, both in school and at home.

“She’s much more attentive and responsive. She has made a lot of progress. She’s really grown,” Lewis says. “She is so much more focused, she shows that she’s interested, she participates, she’s much more engaged with us at home.”

Lewis attributes this success to having a lawyer. “The impartial hearing process is not something I would have been able to maneuver on my own,” she says. “Without an attorney, I would not have known the specific steps we needed to follow, the timeline, and the legal terminology.”

*Name has been changed to protect the identity of the family involved.