Can I Sue a School for Not Following IEP? Yes.

A school or school district can be sued for not following IEP. Under the Individuals with Disabilities Education Act, all students have a right to a “free and appropriate public education” in “the least restrictive environment.” If your child has special needs or learning difficulties, they may need an IEP (Individualized Education Program) or a 504 Plan to make progress in school. Ideally, parents and educators work together cooperatively to institute and execute the IEP effectively, communicating at regular intervals about the student’s progress through written reports and in-person meetings. But problems can arise when a school wrongfully rejects a student for an IEP, fails to implement an IEP, or fails to communicate with parents about the IEP in the fashion prescribed by law. In these circumstances, you may need to consult an education lawyer or special needs advocate to ensure that your child is getting the additional services they are entitled to. 

What is IEP or an Individualized Education Program?

An IEP or Individualized Education Program is a written plan that lays out specific accommodations and measurable goals for students who have trouble learning in the context of a general public education curriculum. IEPs may be developed for a wide range of disabilities and impairments, from slight to severe, and are individually tailored to the student’s needs. IEPs are created and reevaluated using a team approach, and represent a collaborative effort between students, parents, special education professionals, and other school personnel familiar with a child’s unique learning needs. All IEPs must be reviewed annually to ensure the student is making progress and that accommodations are still appropriate.and sufficient. 

Can I sue a school for not following an IEP?

For obvious reasons, it is always ideal for parents to remain on friendly and cooperative terms with the school administering their child’s IEP. But in some circumstances, a parent has tried everything to get their child much-needed services and accommodations, and the school or district continually falls short. In these cases, you may want to speak with a special education advocate to explore your administrative and legal options.  

Public School Districts

Federal and state laws require all public schools, and certain private schools receiving government funding, to provide IEPs or 504 Plans to students with special needs. If a student is denied an IEP or a 504 Plan, an education attorney can take legal action in a number or ways — they can initiate mediation proceedings with the school, file a formal complaint or grievance with the school, request an administrative or due process hearing, and file a lawsuit with the applicable court within 90 days after the adjudication of the hearing. 

Private or Independent Schools

Because they generally do not receive government funding, private and independent schools are generally not required to provide IEP’s, 504 Plans, or any other special needs services. However, if a private school advertises or states in their contract that they provide special education services — commonly called Individual Services Plans or Instructional Services Plans (ISP’s) — and they fail to do so, you may then be able to take legal action against the school. 

Can I sue a school for an IEP payout?

In limited circumstances, you may receive funds from the school district over an IEP dispute if, for example, you can prove that private school tuition should have been paid by the public school district because it was unable to accommodate your child. You may also receive compensation for additional tutoring or other services you paid for yourself in place of an IEP that should have been granted, or one that was inadequate or poorly-administered. Though rare, in some cases, you may sue a school district for damages if you can prove that the school failed to provide legally required special needs services “intentionally or with deliberate indifference.” 

Can I sue school corporations or districts over IEP denial?

Yes, if it comes to that. Before you actually bring a lawsuit against a public school, however, you must have gone through the school’s own administrative process for appealing their decision. You should still retain the services of an education lawyer throughout this process, however. While public schools are required to administer their own special needs evaluations, some parents appealing an IEP denial pay to have an Independent Education Evaluation (or IEE) done by an outside professional not affiliated with the school. If the IEE determines that your child has learning difficulties sufficient to require special needs services, the public school will often revise its decision and agree to provide the appropriate IEP. Throughout the IEP evaluation process, it is important to get as much communication between you and the school in writing. Be sure to keep all records, notes, reports, and emails in a file for easy reference should you need them later to help make your case. 

If your child is still denied an IEP after you appeal the school’s decision, you may request an administrative or due process hearing, where an impartial hearing officer listens to both your arguments and the school’s before making a decision. You will want to consult a special needs advocate or an education lawyer if you request a due process hearing. To schedule a special education due process hearing in California, you and your attorney will need to file a request with the Office of Administrative Hearings

How much does it cost to sue a school?

The cost of suing a school varies significantly based on the nature of the case, where you live, and the experience level of your counsel. Except in cases like class action lawsuits or suits involving high dollar amounts in damages, for the most part, education attorneys will charge an hourly fee upfront and throughout the duration of your case. Many education lawyers do offer a free initial consultation, however, and after learning the specific facts of your case, they will give you a more detailed estimate of their fees. Some low-income families may be eligible for assistance through a non-profit or legal aid society that advocates for students with disabilities. If this does not apply to you, but cost is a prohibitive factor, feel free to talk to your lawyer about strategies for keeping costs down. 

How long does an IEP case last?

An IEP case may be resolved rather swiftly if you request a due process hearing and the officer rules in your favor. If, rather, you are suing for damages over an unfairly denied or poorly implemented IEP, the process may take quite a bit longer — up to a couple of years if negotiations fail to yield a settlement offer and your case proceeds to trial. After discussing your specific situation with an education lawyer, you will have a better idea of how long it may take before the matter is resolved. But be prepared to be patient with the process

Can I bring an attorney to an IEP meeting?

Yes, you technically have a right to bring an attorney to an IEP meeting. Keep in mind, however, that bringing a lawyer to your IEP meeting may create an adversarial atmosphere that can be counterproductive to cooperation between you and your child’s school. And if you do bring an attorney to an IEP meeting, your school may reschedule the meeting until they can have their own counsel present. Your special education attorney will advise you on the wisest way to proceed when it comes to their attendance at IEP meetings between you and school staff.

When should I contact an education attorney?

You should contact an education attorney if your child is being mistreated, neglected, harassed, bullied, wrongfully suspended or expelled, or discriminated against at school. Education attorneys deal with a wide variety of legal issues pertaining to student’s rights, from special needs accommodations to Title IX issues. Though public schools (and certain private schools receiving government funding) enjoy immunity from many different types of lawsuits, that immunity is not absolute. Before you can sue a public school, however, you must go through the district’s own internal process for filing a formal complaint. You should always contact an education attorney before you do so, because the content of your complaint with the school will control what legal arguments you can make later on in court. There are fewer legal barriers to suing a private school, and the process can be much different. No matter what type of school your child attends, you should always consult an expert education lawyer if your child has been harmed at school and your own attempts at resolution have proven ineffective. 

Do I need an education attorney near me?

We recommend finding an education attorney familiar with the school districts in the county where the case is being tried. An education lawyer in the same county as the school district will generally be more familiar with the civil courts, versus an out of state attorney.

Have questions? Call us at (424) 599-4870.

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About & RMO Lawyers

RMO LLP serves clients in San Diego, Los Angeles, Santa Monica, Orange County, and communities throughout California. Our founder, Scott E. Rahn has been named “Top 100 – Trust and Estate Litigation” by SuperLawyers, Trusts and Estates Litigator of the Year, and Best Lawyers in America for Litigation – Trusts and Estates.