Tara Murphy is a SPAN Resource Parent, a Volunteer Advocacy Ambassador for Autism Speaks, member of the Council of Parent Attorneys and Advocates (COPAA), founder of Parenting Frontier, and the mother of two children diagnosed with developmental disabilities.  You can listen to a podcast with Tara and Laura Waters here called “Learn as Much as You Can.”

The deck is stacked against parents of disabled children who fight for what federal law calls “a free and appropriate education in the least restrictive environment.” 

Why? Because there is a huge disparity between what  parents pay to protect their disabled child’s rights, and what school boards pay attorneys to defend their programs. This reason for this inequity is that school boards can use their Errors and Omissions insurance, a kind of liabiilty insurance that protects them against claims of inadequate work or negligent actions. This type of insurance also allow boards to pay attorneys way below market rates and some school board lawyers are willing to accept low fees because they are posturing for future political appointments.

For example, at least three current New Jersey Administrative Law Judges, who hear special education cases, previously represented school boards. Who will they most likely be siding with? 

Let’s look at the numbers. Remember, when parents feel their child’s special education needs aren’t met by school districts, they often file for “due process,” or litigation before an Administrative Law Judge. If parents go that route, they typically hire an advocate or a lawyer because representing yourself is a big undertaking and most parents lose.  

How much does it cost for a parent to hire a lawyer compared with what the school board pays to defend its program?  

• Special ed attorneys who represent parents charge around  $400 per hour.
• Insurance defense lawyers representing districts charge $145-$175 per hour. (See here for more information.)

Here are some examples of what public school boards pay their attorneys. These records were obtained through OPRA requests and school board minutes: 

One hundred and sixty dollars an hour versus four hundred dollars an hour? This is wrong. Parents shouldn’t be put at such a disadvantage when fighting for an appropriate program for their child with disabilities. With school boards paying their attorneys so little, challenging a school district is a wealthy family’s game, often totaling many tens of thousands of dollars. 

We can fix this by requiring specialty insurers who write Errors and Omissions policies to only cover attorneys charging market rates. Otherwise, children and their families will continue to be victims of an uneven playing field.