D.C. Files Suit Over Special-Ed Case It Calls Frivolous

The District, taking advantage of a change in federal law, is suing to recover legal costs from a private attorney who filed what officials say was a frivolous special education case.

Attorney General Peter J. Nickles said the lawsuit, filed last week in U.S. District Court, is likely the first in a series of actions to push back against what he described as a "very aggressive plaintiff's bar" in the District that has flooded the system with special education actions.

D.C. public-school parents who are dissatisfied with the city's response to their requests for special education services can ask for an administrative due-process hearing to resolve the matter.

The District's lawsuit alleges that attorney John A. Straus filed a due-process complaint Aug. 15 saying that the District had yet to conduct a psychiatric evaluation it had promised a month earlier to Marie Williams, the grandparent and legal guardian of a student at Spingarn High School.

On Aug. 20, the suit says, the District sent a letter to Straus authorizing him to obtain an evaluation at D.C. expense but he did not withdraw the complaint. At the Sept. 9 due-process hearing, the suit says, Straus stated that he pursued the litigation because the city's authorization of an evaluation did not include a provision for attorney's fees.

The District is asking Straus and his firm, James E. Brown & Associates, for $1,752.25 to cover the expense of legal representation at the hearing. Straus said yesterday that he had not been formally served with the suit and could not comment.

An amendment to the Individuals with Disabilities Education Act allows school districts to recover legal expenses from attorneys who file unreasonable or unfounded actions. Nickles said he intended to make more aggressive use of the law to discourage the high number of due-process filings against the District.

"There's no reason why we should be the litigation capital of the world on due-process special education lawsuits," he said yesterday.

Nickles mentioned the lawsuit Thursday evening at a news conference during which District officials discussed their latest efforts to comply with a 2006 consent decree that settled an action brought by parents of children with learning problems or behavioral challenges. The lawsuit, Blackman v. District of Columbia, contended that families faced unreasonable delays in getting special education services.

At a hearing in September, U.S. District Judge Paul L. Friedman expressed frustration at the pace of the District's progress and confusion over which officials were responsible for reducing the backlog of decisions made by hearing officers and settlement agreements that had yet to be executed by officials.

In a lengthy filing, the District promised that by mid-2009 Chancellor Michelle A. Rhee and State Superintendent of Schools Deborah A. Gist would eliminate the backlog of 1,278 cases that were pending for 120 days or longer as of Nov. 1. The filing said that newly hired staff workers would be able to expedite newer cases more quickly.

The District's public and public charter schools have nearly 11,000 special education students. About 20 percent attend private schools, at a cost to taxpayers of about $200 million, because the city cannot meet their needs.

City officials are scheduled to appear again before Friedman on Jan. 22.