Subj: THE SPECIAL ED ADVOCATE, VOL. 1, NO. 17 (NOV. 13, 1998)
Date: 11/13/98 3:15:29 PM Pacific Standard Time
From: (Pete and Pam Wright)

The Special Ed Advocate

The Online Newsletter About
Special Education and the Law

November 13, 1998 Vol. 1, No. 17

Visit us today at:


The Special Ed Advocate is a free online newsletter about special
education legal issues, cases, tactics and strategy, effective
educational methods, and Internet links.

We publish this newsletter occasionally, when time permits. Back issues
of The Special Ed Advocate are archived at our web site -

As a subscriber to The Special Ed Advocate, you will receive
announcements and "alerts" about new cases and other events. Contact,
copyright, and subscription information can be found at the end of this


IN THIS ISSUE: November 13, 1998

(1) DOE v. WITHERS in LAW LIBRARY: $15,000 Jury Verdict Against Teacher
Who Refused to Follow Child's IEP

(2) GUEST ATTORNEY BILL BYRNE: Creative Ways to Win Tough Cases

(3) SPECIAL ED ATTORNEY PAUL ERICKSON Reflects on the High Cost of Doing
What's Right - AND Failing to Do What's Right . . .

(4) U. S. SUPREME COURT UPDATE: Garett & Family at Oral Argument




(1) DOE v. WITHERS in LAW LIBRARY: $15,000 Jury Verdict Against Teacher
Who Refused to Follow Child's IEP

The landmark case of Doe v. Withers stood for two significant legal
propositions: that schools and teachers can be accountable for refusing
to follow the child's IEP and that schools and teachers can be sued for
damages in jury trials.

To read the Complaint in Doe v. Withers, go to:

To read the Jury Order in Doe v. Withers, go to -


(2) GUEST ATTORNEY BILL BYRNE: Creative Ways to Win Tough Cases

Bill Byrne represented the child in the landmark case, Doe v. Withers
that we
added to the Law Library. Mr. Byrne discusses two recent cases and
discusses some creative ways to win cases.

J. R. Traylor v. SSAC

Recently, Bill Byrne represented a a profoundly deaf high school student
who ran afoul of an age rule that prevented him from playing
inter-scholastic sports in J. R. Traylor v Board of Education. The young
man fell one year behind in school because of his hearing impairment.

Mr. Byrne argued that under the West Virginia Human Rights Act, this
deaf high school student was entitled to a "reasonable accommodation"
and an individualized determination as to whether the waiver of a rule
prohibiting 19 year olds from playing high school basketball violated
the purpose behind the rule.

"Lots of federal cases against us but we used the state statute
successfully. Our state Supreme Court let stand a lower court ruling
granting us an injunction. We were also able to settle the attorney’s
fee issue."

Board of Education vs. Chris A. et. al.

"A boy with ADHD brought a knife to basketball practice to impress his
friends. The school expelled him under the "Safe Schools Act." The
school held a "manifestation determination" and concluded that his
action was in no way was connected to his disability."

"We filed for due process. After four days of hearings, we won. The
school appealed to federal court. The school district settled in
mediation and agreed to abide by the due process decision. They also
paid $30,000 in fees and expenses."


(3) SPECIAL ED ATTORNEY PAUL ERICKSON Reflects on the High Cost of Doing
What's Right - and Failing to Do What's Right . . .

Paul Erickson, special education attorney from North Carolina, writes
about the high cost of NOT doing what's right.

"My client asked why is it that people can only see the financial cost
of doing what is right? Why can't they see the overwhelming costs
associated with refusing to do what is right?"

This mother was referring to the average cost of a Lovaas program
$25,000 a year, i.e. for three years, cost about $75,000).

This is the cost of doing what is right.

This child completed the Lovaas program and was "exited out of special
education" before he entered kindergarten. Now, he attends a regular
first grade class in his neighborhood school where he makes above
average grades.

To learn about the higher cost of NOT doing what’s right, read Paul
Erickson's letter, "The Cost of Doing What's Right."


(4) U. S. SUPREME COURT UPDATE: Garett & Family at Oral Argument

In the November 5, 1998 issue of the Special Ed Advocate, we included an
article about Oral Argument in the Cedar Rapids v. Garret F. case.

A few days later, we received a message from Garett's aunt:

I just read your newsletter article about Cedar Rapids School District
v. Garret F. I am Garret's aunt and was fortunate enough to sit in on
the Supreme Court hearing along with Garret and his mom, my sister. I
think you summed up quite well the Justices'frustration with the school
district's position.

Justice O'Conner expressed concerns about our position of adhering to
the previous definition of the bright line for "medical services"-
physician-assisted v. non-physician services.

She asked where the line should be drawn. She used the example of a
child who did need 1:1 continuous nursing services and an ambulance
parked outside the school on standby.

On behalf of Garett and his family, I would like to thank you and your
organization for your advocacy, along with the 13 other groups,
including the American Academy of Pediatrics, and the national School
Nurses Association, who filed Amicus Briefs on behalf on Garett with the
Supreme Court.

Subscribers to The Special Ed Advocate will receive word when the Court
issues their decision.

The Eight Circuit's decision on Garett's behalf is available in our Law



We have added more books to the Advocate's Bookstore. If you need to
learn about
mediation and negotiation, visit the Negotiation and Law Sections of the
Bookstore. Here are two books to help parents who are struggling to
survive school meetings - and be heard.

"Getting to Yes: Negotiating Agreement without Giving In" by Roger
Fisher and William Ury. We have been recommending "Getting to Yes" to
parents as an excellent book about negotiating and resolving conflict.

Based on research from the Harvard Negotiation Project, "Getting to Yes"
will teach you how to negotiate "win-win" solutions to disputes.
"Getting to Yes" provides concise, step-by-step, strategies that will
help you develop fair agreements in any kind of conflict.

"Getting It Done: How to Lead When You're Not in Charge" by Roger Fisher
and Alan Sharp (1998). "Getting It Done" explains why collaborating with
others is so difficult.

People have minds of their own - and their decisions are based on
emotions, not logic.

In "Getting It Done," you'll learn how one person can help the group
formulate a clear vision of results, suggest a course of action, and
learn from past experiences.

You'll also learn how to ask questions, offer ideas, and make
suggestions that will be heard - how to influence the actions of others
by your own behavior.

For more information about "Getting to Yes" and "Getting It Done," go to

We have added several new books to the “Understand the Law” section of
the Bookstore. Parent advocates need to learn how to do legal research:

"Legal Research: How to Find and Understand the Law" by Stephen Elias &
Levinkind. (Nolo Press)

Legal Research is a step-by-step guide - you'll learn what's in the law
library and how to use it; how to find statutes, regulations & cases;
how to explore online resources; practice legal research skills in the
library; and how to write a legal memorandum.

For more information, go to



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Copyright 1998 Peter W. D. Wright and Pamela Darr Wright. All rights

The resources at this site are copyrighted by the authors and/or
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Wright and Pamela Darr Wright. Appropriate credit should be given to
these resources if they are reproduced in any form.

Pete and Pam Wright,
The Special Ed Advocate
P. O. Box 1008,
Deltaville, Virginia 23043.