Should the School Attorney Be Present at IEP Meetings? A school or district may have legal counsel present at an IEP meeting as an individual who, under the IDEA, has special expertise regarding the child. This is true whether or not the parent brings an attorney or advocate with them. However, there are limits on the participation of the attorney in the IEP meeting.
Just as a parent may exercise discretion to include individuals on the IEP team other than those identified in the IDEA as “mandatory participants,” so may a school district. Specifically, 34 CFR 300.321(a)(6) provides:
The public agency must ensure that the IEP Team for each child with a disability includes (6) “At the discretion of the parent or the agency, other individuals who have knowledge or special expertise regarding the child, including related services personnel as appropriate;
Further, 34 CFR 300.321(c) states that the determination of the knowledge or special expertise of any individuals described in (a)(6) must be made by the party (parents or public agency) who invited the individual to be a member of the IEP team.
Thus, school districts may lawfully be represented by an attorney at IEP meetings, whether or not the parent brings an attorney to the meeting. See, Letter to Diehl, 22 IDELR 734 (OSEP 1995). Even if the attorney has not personally met the student at issue, the attorney can properly gain knowledge and expertise regarding the student through conversations with staff and review of the student’s educational records.
Parents and their advocates will sometimes make statements that it is “against the law” for an attorney to be present because the Office of Special Education Programs (OSEP) has repeatedly discouraged school districts from having a school district attorney present. See, Letter to Clinton, 37 IDELR 70 (OSEP 2001) (“an attorney’s presence would have the potential for creating an adversarial atmosphere that would not necessarily be in the best interests of the child”); see also, Letter to Garvin, 30 IDELR 541 (OSEP 1998) (“While nothing in the current regulations prohibits legal advocates who meet this criteria from participating in IEP meetings prior to a request for a due process hearing, OSEP believes that such a practice potentially creates an adversarial atmosphere which can interfere with the development of the child’s IEP and the consideration of the child’s needs”).
OSEP’s opinions notwithstanding, courts have recognized the right of school district attorneys to attend IEP meetings. For example, in Horen v. Board of Educ. of City of Toledo Pub. Sch. Dist., 53 IDELR 79, 655 F. Supp. 2d 794 (D. Ohio 2009), aff’d 6th Cir. Ct. App., 113 LRP 45715 (2011), the Court held that the presence of the district’s attorney at the IEP meetings did not justify the parents’ refusal to participate. Under the IDEA, the court explained, the district could invite other individuals who had knowledge or special expertise regarding the student. In Buncombe County (NC) Schools, 44 IDELR 257 (OCR 2005), OCR determined that the student’s parent had failed to show that the presence of the district’s attorney was retaliatory. During the meeting, the attorney responded only to questions of a legal nature and at no time appeared to intimidate the parent. The attorney only participated in order to explain the legal requirement of signing a release of information form in order for the student to be evaluated, and after the legal guidance and clarification was provided, the attorney left the meeting.
However, in another case, a hearing officer found that the district’s insistence on the participation of its attorneys in the IEP meeting without limitation, made them de facto IEP team members. This constituted a procedural violation of the IDEA, and resulted in forcing the parent to leave the team meeting and thus a denial of FAPE. District of Columbia Pub. Schs., 110 LRP 39063 (SEA DC 06/29/09).
- Districts are required to provide parents with meeting notices that identify the people the district is inviting to the meeting (by name or position). See, 34 C.F.R. § 300.322(a)(1). If the district intends to have its attorney present, it must be sure to include that on the meeting notice!
- A meeting notice can include a statement that tells the parent that the district expects the parent to notify the school at least two working days before a meeting if the parent intends to bring an attorney to the meeting.
This blog should be used for informational purposes only. It does not create an attorney-client relationship with any reader and should not be construed as legal advice. If you need legal advice, please feel free to contact Erin H. Walz at 480.461.5379, log on to www.udallshumway.com or contact an attorney in your area.