Law Schooled

Parents want what's best for special-needs children. And they're using lawyers to get it.

Elise Kopit is nervous. Composed, businesslike, but still nervous.

Two years ago, the smartly dressed, well-spoken mom from Beachwood won a high-stakes legal battle. Her opponent: her local school district. The fight: over how to educate her severely autistic son, Ben.

Kopit talks guardedly about what happened, worried that she'll upset Beachwood school officials. But it's obvious from what she does say and from the bitter tone that briefly tinges her voice that she endured a wrenching experience. For years, the Kopit family and the Beachwood schools struggled to help Ben, who has an IQ of 39 and is prone to aggressive tantrums. He went to four schools in six years. "I never really saw any progress," his mother says.

When he was 10, his behavior got worse. He was jumping out of his seat in his special-education class dozens of times a day, and he threw 18 tantrums in one month, often requiring his teacher or an aide to restrain him.

"They called me all the time: 'Come pick him up. His behavior's out of control,'" Kopit says. Twice he was suspended for hitting the teacher.

The Kopits asked the school to try something that had once helped Ben, a program his mother learned while home-schooling him for a while. Called applied behavioral analysis, it teaches autistic kids self-control through repetitive tasks and the almost constant attention of a teacher. The Kopits wanted Ben's teachers and aides trained in the one-on-one technique, but the district was skeptical and refused to meet all their demands. Unable to resolve the dispute, the Kopits hired an attorney.

The parents and school faced off in a due-process hearing, a legal proceeding similar to a court trial. It was presided over by a hearing officer, a lawyer trained in special-ed law. "It got very ugly at times -- a lot of finger-pointing," Kopit says. (A Beachwood schools official declined to comment about the case.)

For two weeks, attorneys for both sides sparred, presenting expert witnesses and dozens of exhibits documenting Ben's education and debating years-old decisions about his schooling. Kopit spent a whole day testifying, and school attorneys grilled her about Ben's medications and bad behavior.

In the end, the Kopits won. The hearing officer ordered the school district to pay for an education for Ben based on applied behavioral analysis.

Soon, Kopit realized that the decision wasn't just a victory for her family, but a precedent. Parents of autistic kids started calling and e-mailing her, asking about the hearing officer's ruling; some took copies to meetings with their districts.

"I felt like, if I died tomorrow, my life would be complete for what I did for children with autism," she says.

She went on to help found the new Cleveland Clinic Center for Autism School, where nine children are getting a one-on-one education based on applied behavioral analysis. Ben, now 13, is one of the students. "He's happy as can be," his mother says. He's talking more, using longer sentences. And for the first time, thanks to the discipline he's learned in his vocational lessons, he helps around the house, taking the garbage out and setting the table.

Tuition is $50,000 a year, and a lot of public money is funding the private school. Kopit won't say whether Beachwood is paying Ben's tuition, since the legal settlement she and the district reached is confidential. But she does say that various school districts are paying tuition for almost all of the center's kids -- because their parents hired attorneys and, in some cases, took legal action.

Every year, tenacious parents like Kopit retain lawyers to challenge public schools to do more for their special-ed children. And though schools have already done a lot for the disabled in the last 25 years, legal conflict over the issue is increasing. Knowledgeable, activist parents are testing the limits of the federal law that guarantees free education for disabled students and requires schools to integrate them, as much as possible, into regular classrooms.

Special education has become one of the public schools' biggest legal concerns. Though only a small percentage of parents of disabled kids get litigious, they create fear among teachers and administrators. Some districts have found themselves spending tens of thousands of dollars to prove that a parent's demands are unrealistic and that teachers are doing the right thing. Public schools' mission is to give everyone an education -- but since special-ed kids are the neediest of students and the most expensive to educate, districts often struggle within limited budgets to fulfill their duty.

Fights over special ed turn painful and nasty more often than other legal battles, because all involved believe they're fighting for the best interests of children. Teachers and school officials are defending their professional decisions and trying to cope with costly demands, while parents think the schools aren't giving their kids the attention and support they need. Most often, there's no obvious good guy or bad guy -- just people who can't agree on what to do for kids with complicated problems.

Jeffrey Kling, a hearing-impaired teenager with cerebral palsy, has lived a segregated life. He takes classes with other hearing-impaired students, so he never had much of a chance to get to know regular-ed kids. That changed during his sophomore year, when the 18-year-old joined the Mayfield High School track and cross-country teams. Even though he isn't the most graceful runner, and he usually finished last or near-last in meets, being on the team meant a lot to him.

"It helped him become a better person," says his father, Tim Kling. "He was more confident. He was more outgoing. He would socialize a lot more. He would carry himself with pride."

But last summer, Jeffrey turned 19. And his parents were told he couldn't compete in sports again, because Ohio High School Athletic Association rules say kids who turn 19 before a school year starts are too old to play.

The Klings hired an attorney and filed for a due-process hearing. They argued that, because their son is a disabled student, he has a right to an education until he turns 21 -- and that includes extracurricular activities.

But this fall, while the case progressed, Jeffrey wasn't allowed to run in cross-country meets. He practiced with the team, but stayed out of uniform while the other kids ran.

"He was very, very depressed," says his father. His grades dropped, his vocabulary skills suffered, and he stopped going out with the team to their Friday-night spaghetti dinners -- all, his father believes, because being barred from the team made him feel singled out for being different. Worst were the days of meets and before and after. "He'd slam doors, throw things against the wall -- like books -- and stare out the window for hours," his father says.

The Klings won the first two rounds in the case. This fall, a hearing officer and a state review officer both said Jeffrey should be able to run. But the Mentor school district (where the Klings live) and the Mayfield schools (where Jeffrey attends his hearing-impaired classes) still refused to put him on the team. The Mentor schools, which make the decisions about Jeffrey's education, and the Klings have sued each other in federal court.

"If someone of Jeff Kling's age runs in a meet, all other students in that meet will be disqualified," explains Phillip Price, Mayfield's superintendent.

"We don't want to create situations where students are competing with students who are not their age-mates," says Deborah Moore of the OHSAA, also a defendant in the Klings' suit. The exception the Klings seek, she says, could lead to 20-year-old kids competing in games with 14-year-olds.

A judge will soon determine whether Jeffrey can run with the track team this spring.

"If we hadn't hired an attorney," Tim Kling says, "they would have just bulldozed us over."

Parents turn to lawyers because they feel intimidated by school officials: outnumbered at meetings with them, ignored when they voice their opinions. Nessa Siegel, attorney for both Jeffrey Kling and Ben Kopit, says parents usually come to her after communication has completely broken down. "They say the school doesn't listen to them," Siegel says. "They say, 'I'm very tired of having to argue with the school.'"

Today, parents are less likely to defer to districts than they once were. Siegel says she has more than three times as many special-ed clients as she did when she started her practice 16 years ago. She thinks schools have gotten better at educating disabled kids, but not good enough. She's filing litigation more often. "Parents have begun to understand their rights," she says. She represents disabled students whose parents want them integrated into regular classrooms, children with emotional disorders who have been suspended from school, and autistic kids, whose parents often fight for one-on-one aides.

Christine Aponte, head of the Autism Society of Greater Cleveland, says dozens of her group's members are considering legal action against their schools. The biggest problem, Aponte says, is that some teachers and school officials think it's unfair to the rest of the class to make special accommodations for an autistic child.

But most members of Aponte's group were unwilling to talk to Scene. "They're afraid," Aponte says. "They don't want repercussions from the school district."

One parent, Leanna Mohr, got into a dispute last year with the Columbia school district in Lorain County over her son, Riley, who is autistic and has cerebral palsy. "He was screaming an average of five to seven hours a day" and disrupting class, Mohr says. But she and his preschool teacher couldn't figure out what was wrong.

Mohr asked her district to send Riley to a special school for six weeks over the summer, in hopes that the specialists there would identify his problem.

At first, Mohr says, a district official refused to pay for the summer program. Finally, at the last of several meetings, Mohr threatened to sue. That, she says, made the difference. The school agreed to send Riley to the six-week session if Mohr agreed that it wouldn't have to pay for Riley's speech and occupational therapy over the summer. School officials remember the incident somewhat differently, saying they were just looking into whether the program was appropriate and never told Mohr they wouldn't pay for it.

A specialist at the summer school figured out the problem: Although Riley was four years old, he had the language comprehension of a 10-month-old. He was screaming because he was frustrated he couldn't communicate. Now, his mother and teachers talk to him using only his name and a one-word command. He's screaming 10 percent of the time, not 90 percent, says his mother, and he's learned more words and is even talking in sentences. Meanwhile, both sides agree Mohr's relations with her school district are much better. "They've stuck to everything I've asked this whole year," she says.

"Most school personnel want to do what's right," says Frank Hickman, a Cleveland-based attorney for special-ed parents. "They're restricted by budgets and, in some cases, by ignorance about what the resources are."

Hickman has represented two illiterate students at Cleveland-area high schools in the last two years. One was a high school senior who was reading on a second-grade level. "He's a bright kid, not retarded. Very active, socially aware, real pleasant -- the kind of kid you'd want for your own. But he can't read, because he has severe dyslexia." The school had known about his problem for years and done nothing, Hickman says -- just given the student passing grades in his regular-education classes.

After Hickman confronted the district, officials agreed to send the student to a specialized school in Pennsylvania, even paying for his transportation. "It hurt a lot that he couldn't graduate with his friends," says Hickman, but "he's blossomed, he's gotten his confidence back, and he's learning to read."

Then last year, after three meetings, Hickman convinced officials in another district to give daily therapy to an illiterate high school freshman. "The school did the right thing," he says. "Too bad it didn't happen without me."

Hickman resolved both cases without filing litigation. Both he and Siegel prefer to attend the meetings schools are required to hold with every special-ed parent to plan the child's education for the coming year.

"I discourage parents from going to due process, because it is a huge emotional and financial drain," he says. "Anytime a parent is fighting for their child, it ratchets up the emotions enormously . . . It's like a divorce proceeding or a custody battle. There's this huge amount of emotion and huge distrust of the other side." Hickman's fees vary widely, depending on how complex a case is, but he says he often ends up discounting his services, because the cost of a due-process hearing would otherwise be too much for parents to bear.

Sometimes, defusing a conflict doesn't just mean negotiating a compromise with the schools; it also means Hickman has to calm down his own clients and get them focusing on realistic goals, rather than on seeking revenge. "Many times they're angry, with good reason," he says.

But when he does go to a hearing, the quiet attorney knows he has to get mean. "My role is to win the case," he says. "If that means attacking a school official, I'll do that very vigorously." Schools, meanwhile, launch their own attacks, labeling the child as a slacker or going after the parents.

Tim Kling says he felt he was treated like a criminal when attorneys cross-examined him. "I felt like my motives were being questioned, like I was trying to get away with something," he says. "I kept getting accused of bypassing the rules. I just told them that, in my opinion, I wasn't. My objective was to help my son."

Parents aren't the only ones who can be intimidated in the process. Attorney Steven Walker brags that he puts schools through long, drawn-out hearings: "My shortest hearing ever conducted is 10 days long, and my longest is 100 days long." He says he needs that much time to prove that a school's educational plan isn't adequate, but he acknowledges that the huge cost of long hearings usually scares schools into settling.

Walker, a former criminal defense attorney, knows that a school's procedural mistakes -- meetings it failed to schedule, delays in writing up a new plan for a kid -- can doom its case. And he admits he'll exploit those mistakes. "If I can realize parents' expectations by exposing procedural flaws, I will do that. I'm not ashamed about it either."

As Walker knows, the regulations and costs of special-ed law can put a lot of stress on schools.

"We've had requests for very nontraditional things: oxygen tanks for autism, horseback riding, Rollerblading, teaching them how to ride a bicycle," says Susan McGown, an attorney for several Northeast Ohio districts.

Since special education is a federal right, there's no monetary limit on what a parent can demand. That can hurt schools' budgets, since Congress promised 40 percent funding for special ed when it passed the law in 1975, but federal funds cover only about 15 percent today.

The law does say that a school's responsibility is to deliver an "appropriate" education -- one that helps the student make progress in learning, not necessarily the best possible education. According to a federal court that presides over Ohio, schools have to offer only the educational equivalent of a "sensible Chevrolet," not a Cadillac.

That gives schools leeway to refuse some parental demands.

To protect their budgets, schools will often ask what the child's real needs are, says McGown. "Do we need to purchase the wheelchair? Do we need to purchase the computer at home as well as school? The principal says, 'We don't have computers in any of our classrooms. We can't afford it!'"

But standing up for frugality can be costly, she says. "Do you go to due process to fight over a $5,000 computer, if it costs $75,000 to go to due process?"

Districts have to pay not only their attorneys, but also the hearing officer and the court reporter. If the parents win the case, or even if there's a split decision, the district has to pay the parents' attorney fees, too.

If parents disagree with a school's evaluations of a child's disability, they can also get a second opinion at the district's expense. Administrators and their attorneys complain this sometimes leads to doctors with little experience in schools making decisions based on a child's disorder, not on the child's educational needs.

"We don't prescribe medications," says McGown. "We'd hope doctors aren't prescribing education."

Special education has become one of the biggest legal concerns for school districts, second only to labor relations, says Michael Kelly, an attorney who has represented several Cleveland-area schools. Wealthy districts see more legal action, because a greater number of parents there can afford attorneys.

Lawyers debate whether children should be in regular or specialized classrooms and how much physical or speech therapy they need. Some parents "want to dictate the kind of reading material used, the number of minutes a teacher spends individually with a child, the place in school where that takes place," says Kelly. And sometimes schools, not parents, are pushing to do more for a student. Some districts Kelly has represented have gone to due-process hearings to win the right to test possibly disabled children whose parents didn't want them tested.

"You're constantly reminded of what can go wrong," says Jim Lloyd, director of pupil services for Westlake schools. Lloyd never encountered parents' attorneys when he was a school psychologist in Olmsted Falls, but he deals with them occasionally in Westlake. Although he hasn't had to go to due process, he's aware of the risks. "One little procedural slip can get you nailed," he says. Under recent court decisions in Ohio, school districts that didn't follow certain regulations were held liable for the cost of a child's private education.

"Special education is such a complicated area. A lot of teachers don't want to get into it," says Lloyd. "We're so bound to procedure and paperwork and everything else, we've almost lost sight of educating children."

Parents, of course, argue that the procedures in special-ed law are important, not trivial.

A few years ago, the Cleveland Heights-University Heights schools got entangled in a long court battle with the parents of elementary school student Sommer Boss. The Bosses argued that the district didn't test their daughter soon enough to get her into the special-ed class she needed to cope with a speech and language disability. So Sommer's parents sent her to the private Lawrence School rather than leave her in a regular-ed class.

The parents wanted the district to pay Sommer's tuition at Lawrence, but the district argued that would set an unfair and expensive precedent. Two hearing officers, a district court judge, and -- finally, in 1998 -- a federal appeals court all ordered Cleveland Heights to pay for Sommer's education.

Soon after, Cleveland Heights fought another round of legal battles. In 1999, it went to due-process hearings against the parents of three disabled children; all wanted their kids in regular-education classrooms.

One fifth-grader had attention deficit hyperactivity disorder, and the school also believed he had a severe behavioral handicap. When he was placed in three regular-ed classes, his grades plummeted, and he had taken to hitting other children, lying to teachers, and rolling around in the hallway. Still, his mother wanted him completely integrated into regular ed, with a one-on-one aide there to control his behavior.

Another boy, classified as seriously emotionally disturbed, had a history of harassing his classmates, defying his teachers, and disrupting class, but his parents still wanted to move him from a special school into a regular classroom.

A third boy, who had Asperger's disorder, a type of autism, was about to start his senior year. His parents wanted him in a college-prep program with an emphasis on science, though he had struggled in chemistry and geometry classes. The district thought a schedule of half-regular-ed and half-special-ed classes would be more suitable.

In all three cases, the school district won the right to keep the boys in special-ed classes.

"It's kind of the temper of the times," says Susan Schraff, Cleveland Heights' supervisor for special ed, who speaks cautiously about her district's legal disputes. "I think people are advocating more for certain things. One of those things might be the education of their children."

In September 1998, Mike (not his real name) enrolled in the eighth grade at Hiskett Middle School in Bedford. His mother told the school Mike was disabled and asked the staff to follow the educational plan from his previous school in California. It said that Mike had a language disorder and a hearing problem, which made written expression hard for him and hurt his productivity and organization. It also said that Mike's grades should be based "on work completed rather than incomplete assignments."

Confused, his teachers gave him a smaller workload than that of the other kids. But he started failing his classes because he didn't finish some of his assignments. His mother angrily complained to the school that he was supposed to be able to choose which assignments he would complete.

The school wrote a new plan for Mike in December, which included several special accommodations: visual aids, class outlines, the chance to respond verbally to tests, reduced assignments, and extra time to finish them. But it stipulated that, when he got an assignment, he'd be expected to complete it.

His mother refused to accept the new plan. In January, she pulled him out of school and started home-schooling him. Soon, she filed for a due-process hearing.

By then, his teachers were doubting whether Mike was really disabled. Not only did he seem able to listen and understand directions, but when he chose to work, he was getting A's and B's. Sometimes he'd say he couldn't do an assignment because he didn't have his glasses; on other days, he'd work just fine without them.

Finally, in May, the school performed its own evaluation. It determined that Mike's hearing was fine, and though he had emotional problems and fairly low scores in written expression, he didn't meet the criteria for a learning disability. In September, despite his mother's arguments, a hearing officer ruled that the school district had given Mike an appropriate education and that it could enroll him in regular education without special accommodations.

Mike ended up in regular ninth-grade classes. Since then, he has moved back to California.

It wasn't easy for Bedford to prove it was right. Pupil Services Director Rick Dillman and his special-ed supervisor each spent a week getting ready for the hearing, and several other members of the school staff testified. It's the sort of case that intimidates school officials into spending lots of time on preventive defense, obsessing about the legal, procedural details of disabled kids' education.

"My line is, 'I'm not a lawyer, I just play one at work,'" says Dale Jakob, pupil services director for the Solon schools. A former school psychologist, Jakob says he hardly ever saw attorneys getting involved in special-ed decisions until a few years ago. Now, attorneys show up at educational plan meetings with Solon parents about 8 to 10 times a year. Solon usually counters by bringing its own attorney.

Jakob will be eligible to retire next year. And the increased legal pressures of his job are one reason he's thinking of hanging it up.

"I can honestly say that all these legal situations we've been placed in, in the last three or four years, haven't been enjoyable for the profession. If I wanted to be a lawyer, I would be one . . . That's not why I got into the profession. I wanted to help teachers and kids. It seems like most of my time is spent in other pursuits."

Jakob's not alone. Many school officials fear teachers and staff will burn out over the complexities of special ed.

"I definitely see it getting to people," says a Cleveland-area school official who spoke anonymously. "I read somewhere that special-ed teachers and special-ed staff spend about a day and a half a week on paperwork. While I haven't lost any people for that reason, I think getting people to enter this profession is going to be a real difficult thing."

When disputes flare up, the emotions involved can take a toll on school employees, just as they do on parents. Kelly says he once got a call from a teacher the weekend before a hearing. Even though all she had to do was "report on the three times the kid picked up a chair and threw it at her," she was still anxious about testifying.

"It's a very emotional process for educators to go through," says Kelly. "They're personally and professionally invested in the success of these kids. When they're cross-examined, and the attorney is doing her job to point out all errors and omissions, they become very upset."

With legal disputes so painful and costly for both sides, some districts have hired parent mentors to teach parents to work with the system. "A large part of my job is to show parents that what they don't need is a lawyer," says Kristi Trunzo, a parent mentor in Fairview Park and North Olmsted. "What they do need is an education" -- lessons in how to argue on their kids' behalf. County special-ed centers and nonprofits have parent advocates on staff who can take the side of families at meetings in place of lawyers.

The state Department of Education offers mediation to anyone who has filed for due process. That has helped keep Ohio from experiencing the dramatic increase in due-process hearings other states have seen. The number of hearings actually decided in Ohio has held steady at around 20 a year, even though requests for hearings have increased dramatically, to about a hundred annually.

Westlake schools' Jim Lloyd says attorneys can sometimes be peacemakers. "Having a lawyer in [a] meeting isn't always a bad thing," he says. "Sometimes they can work as a third party and help people come to a consensus."

Still, Lloyd often decides not to bring Westlake's lawyer to meetings, even when parents' attorneys are there. He doesn't want the meetings to devolve into one side trying to prevent the other side from getting what it wants. "Ultimately our client is the child. I don't think that serves the child very well at all."

Susan McGown wishes schools didn't need her help.

"Lawyers don't belong where educational decisions are being made," she says. "I think lawyers at [educational] meetings, including myself, distract from what the real purpose of school is for a child."

But when Elise Kopit looks at her son's progress at his new school, she's glad she brought in Nessa Siegel to take on her school district. If she hadn't, "Ben wouldn't be where he is today," she says.