“You should just post a sign at the border of your state saying children with special needs aren’t welcomed!” my friend exclaimed after I told her. We received word today that our federal appeal of our debacle of a due process hearing was dismissed and the school district (and state’s) motion was granted that our attorney is supposed to pay THEIR attorney fees.

I’m still wading through the legalese and waiting on a phone call from the attorney, but my understanding is that because we said the court was biased (ruling on things he said he wouldn’t rule on, not ruling on things in the original complaint, sleeping through testimony, etc.) and that they had violated LuLu’s civil rights (by suspending her and punishing her for behaviors related to her disability), this judge believes our attorney was frivolous, unreasonable or without foundation.

Wonders never cease. Meanwhile, as my grandfather was fond of saying “we haven’t had a dog in this fight for a while!” Even though the fight is technically about LuLu, it has grown to so much more than her. It has morphed into being about how far the “system” will go to protect themselves and to keep from providing services to severely disabled children. And I doubt that the fight is over by any means, although I am not the one doing the hand-to-hand combat.

Much of the reason we have to continue to fight is because this decision is about shutting down any options to counter the system. What has become incredibly apparent to me as I’ve watched this unfold is that people who push our system here in Georgia are set up to fail at every turn. I used to think that was paranoia talking…that there was no way that a system could be biased all the way to the top. But the evidence is starting to look otherwise.

For those not familiar with the nuts and bolts of this, under IDEA 2004, which went into effect this July, judges can now rule that attorneys of parents are liable for the cost of the school districts’ attorney fees if the case is considered “frivolous”. Here’s how it reads:

Under IDEA 2004 a court may award attorney’s fees and costs to a school district that is a prevailing party and (1) against the parent’s attorney “who files a complaint or subsequent cause of action that is frivolous, unreasonable, or without foundation, or [who] continued to litigate after the litigation clearly became frivolous, unreasonable, or without foundation; or (2) against the parent’s attorney or the parent if the parent’s complaint or subsequent cause of action was presented for any improper purpose, such as to harass, to cause unnecessary delay, or to needlessly increase the cost of litigation.” (Section 615(i)(3)(B)(i)).

Score one for the school boards and the school district attorneys! They can get the taxpayers to pay to drag out court cases forever and not educate severely disabled children because after all, that will cost too much (right?) and then file to get their fees paid if the parents appeal the decision. And, apparently in Georgia it works. So let’s play this back and see how frivolous it sounds:
We didn’t want our traumatized child to be sent to a school where they were going to “experiment” on her 3 hours a day using known triggers while wearing protective gear. We also didn’t want her there because everyday someone gets restrained face down in the hallway and/or drug off to the isolation room. Some days that might be her and other days she would just witness it (all retraumatizing).

We DID want them to provide a speech evaluation they had written in her IEP two years prior but never provided. Then, during the trial period, when they did provide it, we wanted them to calculate the results correctly to show just how impaired her speech pragmatics were, and how much she’s impacted by her severe auditory processing deficits. Then, gasp…we had the audacity to request that they actually provide the speech services (along with OT services that she qualified for) and that they do this somewhere other than the torture chamber school.

Further we had the audacity to suggest that perhaps the decision by the judge was erroneous because he’d slept through the trial and didn’t rule on the speech issue at all (which a quick read of Wrightslaw will teach you is a huge FAPE problem) plus ruled that LuLu didn’t need medical homebound after refusing to hear testimony on it.

I’m still trying to figure out what’s frivolous about trying to protect my daughter’s right to a free appropriate public education, and to keep her from being retraumatized??? And what’s unreasonable about the expectations that a judge would actually rule on the matters brought to his court room and stay awake to do it?

I guess my friend’s right…we should be tacking those signs up along all the borders, warning people with special needs children to stay out!