The first quarter of 2018 yielded a relatively small number of BSEA decisions and rulings. In our review of those issuances, we note a theme that arises in every quarter—the need for cool and informed guidance for parents trying to navigate the complexities of the special education process. That theme arises with particular force here, as we review some rulings that reflect parents’ lack of understanding of, or perhaps inability to comply with, the requirements of special education due process. That theme is also highly relevant to our discussion of Duxbury Public Schools, BSEA #1803977, 24 MSER 23 (Figueroa, March 2018), in which we believe the hearing officer unduly limited the work product privilege as applied to lay advocates.

In two rulings a pro se parent’s claims were dismissed where they were based on essentially the same factual allegations that had been decided against her in an earlier BSEA proceeding. The earlier proceeding, Natick and Framingham, BSEA #1707648, 23 MSER 199 (Berman, 2017), had been filed unsuccessfully against two school districts. The hearing officer in that case held the applicable IEPs to have been appropriate, accepted, and implemented during the period(s) covered by that decision. The current two proceedings were brought against DESE (In Re: Department of Elementary and Secondary Education and XiLi, BSEA #1802999, 24 MSER 14 (Byrne, January 2018)) and a private special education school (In Re: The Gifford School and XiLi, BSEA #1803736, 24 MSER 18 (Byrne, February 2018)). The parent’s claims were dismissed in these rulings on a number of grounds, including that the majority of her claims were barred by the statute of limitations, had already been disposed of in the earlier BSEA proceeding, or fell outside the jurisdiction of the BSEA (i.e., any claim for monetary relief). Any responsible attorney or lay advocate would likely have advised this parent that her claims were time-barred, were barred by collateral estoppel, or sought remedies that the BSEA could not award—basics of special education law and process. Rulings like these clearly exemplify the need for parents to have ready access to informed guidance as they attempt to use the due process system to advance their children’s interests. Not all parents will understand or accept discouraging advice about the limits of the process, but the more such informed advice is available, the more likely it is that parents will proceed cautiously and diligently through the complexities of the special education process without wasting their resources.

In another ruling, In Re: Nashoba Regional School District, BSEA #1804287, 24 MSER 30 (Byrne, March 2018), a pro se parent’s request that a hearing officer be removed from a case was denied. The parent had previously filed three requests to postpone the hearing, and this hearing officer, finding no grounds at all on which to recuse herself, observed that the parent’s motion was likely just another effort to delay the hearing. As with XiLi, had the pro se parent in Nashoba sought, or accepted, informed guidance from an attorney or lay advocate, she’d have surely been advised of the futility of attempting to remove a hearing officer with no grounds for doing so. While we cannot know from the description in the ruling whether the merits of her case were promising, her repeated efforts to delay the hearing may signal at least a lack of preparedness to carry her burden of proof and perhaps a fundamental lack of understanding of the standards, limits and available procedural avenues governing her pursuit of services for her child. Informed guidance to assist parents in navigating this complex system for dealing with complex facts and seeking complex solutions to support a challenged child’s progress is, in a word, essential.

In Re: Hamilton-Wenham Reg. School Dist., BSEA #1707353 and 1804291, 24 MSER 1 (Figueroa, January 2018), tells a long and somewhat convoluted story of parents who witnessed the effects of bullying on their son, now thirteen, when he was a fourth-grader in the school district, and then spent enormous time and energy over the ensuing years attempting to make sure that such a thing never happened again. The bullying incident began a series of steps over several years in which the parents grew increasingly distrustful of the school district, demanding supports outside of school, alternately consenting to sending placement packets to outside schools and then withdrawing consent, insisting on placement repeatedly at a program (The Landmark School) that had unequivocally communicated that their son was not a viable candidate for admission, rejecting a key diagnosis (“communication disorder”) offered by a credible private evaluator, and fighting against the district’s reference to that diagnosis in proposed IEPs.

At an earlier point in the case, attempting to help the parties resolve their differences, the hearing officer had ordered them to cooperate in arranging for an evaluation, convening a Team meeting, and establishing a process for sending referral packets and writing an IEP to cover the ultimate placement. In the wake of the orders that were generated at that time, however, parents would not allow certain meetings to occur between district professionals and their own evaluators without their presence and otherwise stood in the way of efforts to resolve their dispute. In an insightful observation, the hearing officer stated: “It would appear that the experiences of the past three years have impacted not just Student, but Parents as well, to the point where a desire to shield Student from bad experiences, fear for his safety and well being, and a desire to create the perfect educational conditions have totally paralyzed them. While their search for the perfect program continues, Student loses precious educational social and academic development opportunities that can never be recuperated.¼ Clearly, not just Student, but also Parents, have suffered tremendously and are in need of reassurance that everyone will work together to facilitate Student’s re-entry and successful experience in school.” Amen!

The hearing officer noted early in the decision that counsel for the parents had withdrawn his appearance sometime after a pre-hearing conference in October, presumably having represented the parents since the initial filing of a hearing request in March. Reading between the lines, we think it likely that the parents and their attorney parted company because the parents could not accept their counsel’s advice that the process was unlikely to yield a perfect placement meeting all of their criteria. We surmise that the attorney warned the parents of the difficulties involved in moving ahead while selectively rejecting a key element of their own independent evaluator’s diagnostic findings, of the likely impossibility of obtaining some of the specific relief that they were seeking—e.g., actions and orders against peers who had allegedly bullied the student in earlier years—and of the enormous difficulties created by any steps that a district could characterize as uncooperative and unreasonable.

It may be that the parents’ apparent inability to trust the district or to cooperate positively with processes that might, had they done so, have resolved matters, albeit imperfectly, and enabled the student to return to school rather than continue to stumble through his education at home grew from their own vicarious trauma at witnessing the injuries they perceived their child to have suffered as the target of bullying. Trauma can greatly undermine one’s ability to perceive the world reasonably and flexibly as one attempts to erect absolute protections against any further such trauma. Where a child is seen as the primary victim, parents can fall into a pattern, as this hearing officer intimated, of attempting to micro-manage the environment that surrounds that child, all with a mindset that is fundamentally distrustful of those whom they perceive as having injured—or allowed injury to occur to—their child. Practitioners advising parents in such circumstances should be aware of such a possibility and consider whether they should advise parents to seek therapeutic help themselves to try to sort out the rational and effective from the more counterproductive impulses at work in their efforts to help their child.

Taunton Public Schools and Adam, BSEA #1708888, 24 MSER 26 (Reichbach, March 2018), tells the complex history of a parent’s pro se complaint that the district had discriminated against her son in its management and implementation of its disciplinary process. Because there were periods when the student was the ward of co-guardians and because those guardians’ positions had alternated between indicating that they considered the district’s actions appropriate and stating that they disagreed with the actions and/or were misinformed about them or about the student’s rights in the matter, and because the student for a later part of the history had turned eighteen with no delegation of decision-making authority having been made, the hearing officer had to sort out what issues were open and in need of hearing at the BSEA. The underlying facts are complex and idiosyncratic, but overall the ruling stands as a testament to the patience and willingness of the hearing officer to ensure that the parent, her son, and those who cared for the family in what was clearly a very troubling period, involving a young man with serious behavioral difficulties, would have their “day in court.” She identified in her concluding orders, giving the parent and her son the benefit of any doubt, a number of issues concerning claims of discrimination that could be addressed in a full hearing if they chose to proceed—issues that arose within the statute of limitations and issues where a historical lack of clarity about information passed between the parties might be clarified under oath. As in other cases we review for this quarter, Taunton exemplifies the need of a student’s caregivers—especially caregivers for a high-risk student like this one—for seasoned and informed guidance to make their way through the complexities of the special education process to obtain appropriate services, rather than simply allow the student to be treated as a disciplinary problem.

The cases we have just outlined each highlight the need for parents to have expert guidance in understanding the special education process and to make intelligent decisions as they navigate that process. In that light we find the ruling in Duxbury Public Schools to be extremely troubling for its potential to undermine parents’ ability to participate meaningfully through consultation with a lay advocate and with full information in the special education process that governs services and placements for their children.[1]

The foundational aim of IDEA and, here in Massachusetts, of Chapter 766, is to advance the cause of students whose mental and/or physical challenges place them chronically behind their less challenged peers. In their advancement of that central aim, both the Commonwealth’s and the nation’s special education provisions recognize the naturally adversarial interests of school districts and parents: the districts with a mandate to educate all school age children, with limited resources and pressures to keep costs in check, and with a consequent wariness about any claim that an individual child may need disproportionately costly services to meet his or her needs; and the parents with an urgent drive to obtain every possible service their child may need in order to learn and to live as effective and independent a life as possible after exiting the public schools notwithstanding their physical, mental or emotional challenges. With that recognition of interests in conflict with each other, both Congress and our legislature established a process with a direct and active role for parents, including, of course, access to a due process system that offers neutral adjudication of disputes that cannot be resolved between districts and parents.

In the first Supreme Court review of what Congress intended, Board of Education v. Rowley, 458 U.S. 176 (1982), parents were disappointed to see the Court minimize the promise of the federal special education law by announcing that districts need not provide for a student’s maximum progress but only provide “some educational benefit.” (Fortunately, the Court’s recent decision in Endrew F. v. Douglas Cty. Schl Dist., 137 S. Ct. 988 (2017), has pulled the applicable standard back from the trivializing minimum that some courts had applied since Rowley.) But even in Rowley the Court acknowledged the importance Congress had given to ensuring direct and effective parental participation in the decisions and actions designed to identify and address the needs of students with disabilities. See 458 U.S. at 205-206.

The prominence that the Court recognized Congress gave to parent involvement under special education law suggests that, when faced with an ambiguous term or principle that potentially advances or undermines parent involvement, adjudicators ought to err on the side of supporting clear and informed parent involvement at all steps of the process. Unfortunately, in the ruling issued on the subject of work product protection for non-lawyer advocates in Duxbury Public Schools, BSEA #1803977, 24 MSER 23 (Figueroa, 2018), the hearing officer minimized the centrality of that principle and clouded the ability of parents to benefit from open and unfettered communication with advocates as they strive to understand and navigate the complex process for seeking appropriate services under the standards of IDEA and state law.

In Duxbury, the parents argued that a non-lawyer consultant/advocate’s communications and documents were exempt from the reach of a school district’s subpoena because they constituted work product generated “in anticipation of litigation.” See Fed. R. Civ. P. 26(b)(3); Mass. R. Civ. P. 26(b)(3). Taking an extremely narrow view of the application of the doctrine to the tasks of a special education advocate, the hearing officer held that those tasks are performed in the “ordinary course” of an advocate’s business and, as such, are not exempt from discovery as work product. She also held that, even if the doctrine might otherwise apply, the district had established that documents that might otherwise be protected must be produced because the district could not adequately evaluate and respond to certain providers’ recommendations without seeing the advocate’s records and the district would “suffer undue hardship in obtaining substantially equivalent information.”

The Duxbury ruling comes some months after a ruling by another BSEA hearing officer who took a far more reasonable approach to protect advocates’ materials under the work product doctrine. In Re: Waltham Pub Sch., BSEA #1702306, 23 MSER 142 (Reichbach, 2017). We were encouraged by that ruling (see our comment at https://kcsspecialeducationlaw.com/2017/07/28/bsea-applies-work-product-protection-to-non-lawyer-advocate-materials-and-communications-the-ruling-also-stands-as-a- caution-on-therapeuticmedical-records/ ) and ventured the hope that other hearing officers, recognizing the critical importance of free communication between parents and their counselors, would follow suit. Obviously, the Duxbury ruling answers our hope in the negative. Because hearing officers’ decisions do not bind other hearing officers, and because practitioners must approach litigation conservatively on the assumption that the least protective position will apply in their case, this ruling establishes the default for practitioners before the BSEA.

The roots of the work product doctrine lie in the imperatives of the adversary system. The U.S. Supreme Court established the parameters of the doctrine for materials held by attorneys, but not subject to attorney-client privilege, in Hickman v. Taylor, 329 U.S. 495, 511 (1947). While that case concerned attorneys, the doctrine has been codified and applied to other persons in the role of expert consultants. Special education advocates clearly fall within the parameters of the doctrine when one considers the aims of the policy underlying it. Speaking of lawyers—but it involves no great stretch of reason to substitute “parent consultant/advocate” for “lawyer” in this passage—the Hickman Court observed:

Proper preparation of a client’s case demands that a lawyer assemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories, and plan his strategy without undue and needless interference. That is the historical and the necessary way in which lawyers act within the framework of our system of jurisprudence to promote justice and to protect their clients’ interests. This work is reflected, of course, in interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and countless other tangible and intangible ways—aptly though roughly termed by the Circuit Court of Appeals in this case as the ‘work product of the lawyer.’ Were such materials open to opposing counsel on mere demand, much of what is now put down in writing would remain unwritten. An attorney’s thoughts, heretofore inviolate, would not be his own. Inefficiency, unfairness, and sharp practices would inevitably develop in the giving of legal advice and in the preparation of cases for trial. The effect on the legal profession would be demoralizing. And the interests of the clients and the cause of justice would be poorly served.

The Duxbury hearing officer paid scant attention to this fundamental purpose of the work product doctrine. The consequence of her ruling will inevitably be the very “inefficiency, unfairness, and sharp practices” that the Court wished to guard against. As practitioners, we have seen over the last few years a growing aggressiveness by school attorneys against non-lawyer consultants, using the tools of discovery and subpoenas. These tactics drive up the costs and complexity of advocates’ work, and force them, if they wish to preserve the confidentiality of their and their clients’ communications, to avoid writing down their impressions and recommendations, which can taint the services they provide to parents. To give just one example, a policy that drives a consultant or parent away from documenting advice as clearly as possible is likely to disserve parents who are themselves learning disabled or otherwise challenged in any way, by making it difficult for the parents to refer to any record of that advice.

Any remote possibility that an advocate/consultant may have something material in her files that would actually assist a hearing officer to decide the essential questions that she must decide under IDEA does not justify an interpretation of the work product rule that will undermine free communication between advocates and parents. If this possibility does arise, the hearing officer can consider the matter on a case-by-case basis, weighing all of the interests involved, just as judges do.

Every school district has legal counsel at hand, either in-house or an outside firm, usually one with deep experience in the field, to guide and represent it in disputes involving students with disabilities. Parents—especially those with limited means—often cannot afford to engage an attorney, let alone one with special expertise, especially at an early point in the evolution of a dispute. To meet the need for knowledgeable guidance through the complexities of the special education process, the number of non-lawyer parent consultants has grown. Many of these consultants obtain training through various programs designed to arm them with an understanding of the overall legal process, including the applicable standards and the steps that occur from a student’s first identification as having special education needs through the resolution by agreement or the decision of an adjudicator in due process.

The role of non-lawyers in assisting parents through the process is indispensable. In an ideal world, perhaps the school districts could be counted on to counsel parents through all steps of the process in an impartial manner, completely supportive of the parents’ aims for their children. As anyone working in the field is aware, however, the interests of school districts are naturally consonant with those of the child and parents only to a limited degree. Beyond that, the dictates of a district’s economics and limited resources draw a hard line, and the district will generally give more weight to its own concerns than to those of the individual child and parents.

Special education law is full of ambiguities, both legal and substantive, that invite any party with a stake in a disagreement to explain things with a bias toward the interpretation that better advances their own interests. For example, the educational standard that districts must meet for students with special education needs, as explained by the Supreme Court in Endrew, calls for an IEP to be reasonably calculated to enable a student to make progress that is appropriate in light of the student’s particular circumstances—including the setting of goals that are appropriately “ambitious” and “challenging.” Such ambiguous concepts invite a funding stakeholder—the school district—to characterize a student as less able to achieve one or another goal than it might if the district’s resources were unlimited. Teachers and administrators may personally and professionally wish to support a challenging student, but the imperatives of the system undermine that drive and, consciously or unconsciously, influence their views of the student’s potential toward the less expensive poles of possibility.

Thus, anyone looking objectively at the process that parents must navigate to obtain services for their child knows that parents cannot rely on some idealistically-envisioned cooperation between districts and parents to achieve their aims. For most parents, it is as essential to have the knowledgeable assistance of experts consulting in the process to help them through the system, as it is to have independent experts who can evaluate their child and provide a child-centered view of his or her status and needs as a check on the district’s own stated views of those elements.

Non-lawyer consultants thus play an essential role for parents in this complex process. The framers of special education law recognized this from the outset and explicitly provided a right for parents to be accompanied by anyone of their choosing at every step of the process. 20 U.S.C. §1415(b)(1). The BSEA has formalized this role for a non-lawyer at the hearing level by providing for parents to be represented if they so choose by a non-lawyer advocate. BSEA Rule XI(A)(2).

For a consultant/advocate, the ordinary business of her days is comparable to the ordinary business of a special education lawyer. As with a special education lawyer, the consultant’s aim in every matter is to review evaluations, IEPs, and other salient documents, offer an educated appraisal of the strengths and weaknesses of the client’s position, educate the client about the due process system, including all the steps that precede the filing of a request for hearing, and advise the client about choices and steps that will best serve the interests of the child.

An advocate/consultant’s primary aim in the vast majority of cases—as is the aim of any responsible attorney who understands the process and its limitations—is to avoid the parent having to fully litigate at the BSEA if possible—that is, if reasonable results can be accomplished without having to initiate a hearing request or pursue a claim through a hearing to a formal decision. Thus, paradoxically, the role of the advocate/consultant, while “anticipating” the strong possibility that litigation will be necessary, is to help parents achieve their goals without having actually to fight to the finish. It is in the service of this healthy and legitimate aim that the work product doctrine ought in all cases to be interpreted. The interpretation of “in anticipation of litigation” ought to be as broad as necessary to preserve that goal, and in doing so, to sustain the health of the due process and substantive system that Congress and the Massachusetts Legislature envisioned. Instead, Duxbury restricts interpretation to the narrowest sliver of application and leaves parents’ advocate/consultants, as Hickman predicted, having to avoid writing down their thoughts and advice, making for an inefficient, confusing and demoralizing relationship between advocates/consultants and parents.

One last observation: having rejected the argument that the advocate/consultant’s materials ought to be protected by the work product doctrine, the hearing officer then asserted that even if the doctrine did apply, she accepted the district’s representation that lack of access to the documents listed would cause the district undue hardship in its efforts to defend its position, thus establishing an exception to the protection of work product status. The list of materials which Duxbury claimed it could not do without included IEPs, evaluations, and other documentation that is either already in the district’s school files or is readily available from the parents. And as to the advocate/consultant’s communications to and from parents, of what relevance? While discovery parameters in civil litigation have been broadly interpreted in the courts and at the BSEA, it is perplexing to see this hearing officer agree with a district’s assertion that it cannot adequately prepare or defend its position without seeing what an advocate said to the parents or vice versa. What in those communications could materially assist the hearing officer in her decision about the elements of the case: does the child have a disability and, if so, what is the effect of that disability on his/her educational access and/or progress?; does s/he need specialized instruction and/or accommodations in order to engage and/or progress in her program, and, if so, what?; is the district’s IEP and proposed placement reasonably calculated to enable the student to progress in keeping with the applicable standards in the least restrictive appropriate environment? The advocate/consultant is not, per se, an expert evaluator or service provider on whose testimony the hearing officer can or will base a decision. What is the relevance of her communications with the parent? And if, under any theory, there may be some tangential relevance to the advocate’s role in the matter (as, for example, if s/he observed a classroom and there is a question about what happened while s/he observed), unless the parents intend to call the advocate/consultant as a witness, what goal under IDEA justifies opening an advocate/consultant’s entire file to the district, thereby chilling communications and undermining the relationship between the advocate/consultant and the parents? In this case, the advocate argued that the only documents that could conceivably be pertinent to issues in the matter were her notes of team meetings that she had attended. We think that even that goes beyond what an advocate/consultant should be compelled to produce, unless the parties disagree as to what actually occurred at a team meeting in question. At the least, we believe that the protection of an advocate/consultant’s role in the due process system is sufficiently critical to the workings of that system (including to the overriding aim espoused by this hearing officer, to establish and maintain a cooperative relationship between districts and parents) that before an advocate is ordered to produce any documents, the district must be required to make a far more compelling showing of need than appears to have been made in this matter. And before any documents are ordered to be delivered, we would urge a hearing officer to order an in camera review—preferably by another hearing officer, not involved in the case—to ensure that only materials that are actually germane to the issues s/he will have to decide will have to be produced.

We hope that any future BSEA decisions and rulings that take up the demands of districts to fish in the stream of advocate/consultant communications with parents will reflect a deeper look at and concern to protect parents’ need for unfettered—and unchilled—access to informed counsel as they make their way through the maze that is the special education process. We also hope that the BSEA will place that need well ahead of any superficial arguments districts may make about the “hardships” they will suffer if they cannot see an advocate/consultant’s files. n

[1] As these comments have been in the works, our concern over what we characterize here as a strike against non-lawyer consultants—a needed source of guidance to parents to support them in the process—has been intensified as a decision recently issued by a Massachusetts federal district judge becomes what we believe is the first instance in the country in which a court has awarded attorneys’ fees to a school district after finding that the case brought by the parents, who were pro se at the time they pursued it, was “unreasonable” and “without foundation.” Lincoln-Sudbury R.S.D. v. Mr. and Mrs. W., Civil Action No. 16-10724-FDS (D. Mass. 2018). We will not go into the underlying facts of Lincoln-Sudbury in detail here, but suffice to say, the judge found nothing to support a plausible argument for the parents in that case and stated that their claims were “patently frivolous and unreasonable.” The standard for an award of fees against parents under IDEA is onerous—to show that a parent acted without any grounds and unreasonably—and the risk that a court will find parents so far outside of the norms of IDEA as to justify such an award remains small, we believe, but this first instance of such an award certainly reinforces the case for parents to have unfettered access to informed guidance in their efforts to navigate the process.