Ed Battle: Family Wins Case, Seeks Legal Fees From Monongalia
by Jennifer Scott-Heaslip, The Dominion Post, November
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Jim and Eleanor
Green spend most of their evenings reading legal documents --
time taken away from reading storybooks to their two children.
The couple, whose 8-year-old daughter, Julie, has Down syndrome,
is embroiled in a battle with the Monongalia County school
system. The battle has cost both parties a combined $170,000.
And a lot of time and energy.
It started in spring 2002 when the Greens disagreed with school
officials, who attempted to increase Julie's time out of the
regular classroom at Mountainview Elementary from 21 percent to
60 percent. Officials said Julie (who is mildly mentally
retarded) needed a specialized environment to learn.
The Greens and school officials met several times to discuss the
issue. The dispute was presented to an impartial hearing officer
in October 2002, who ruled against the school system and decided
that Julie would be educated in a regular classroom for the
majority of her day.
Hearing officer James Gerl, a private lawyer from Lewisburg who
is not involved in the Green case, said parents don't always use
attorneys to present their case, but many do.
Hearings are "expensive for parents, but attorney fees are
provided for you if you prevail," he said.
The Greens and school officials, however, are still battling
over the Greens' $70,000 (and climbing) legal fees, which the
school system has to date not agreed to fully repay. A tentative
settlement, proposed in early November, has yet to be signed by
Monongalia County Schools, Jim Green said.
School officials declined to speak specifically about the Green
case and the legal fees, citing the federal Family Education
Rights and Privacy Act.
So how did one little girl's education turn into a battle of the
The Greens wanted Julie -- who now attends North Elementary --
to learn almost entirely with her peers.
"They just basically said no, it can't be done," Eleanor Green
Director of Special Education DeEdra Lundeen contends some
things can't be taught in the regular classroom environment,
even with supports and modifications.
Monongalia County Schools supports keeping children in the
regular classroom, to the maximum extent possible, she said. But
there are times when children with special needs require an
environment other than the regular classroom to help them learn.
"If I have to make a choice between what we feel is right for a
child versus what a parent wants, then (what is right for the
child) is the way it will go," Lundeen said.
And so began the litigation.
Root of the problem
The federal Individuals with Disabilities Education Act (IDEA)
states that special education students must make meaningful
progress in their own goals and objectives.
The law also states that special-needs students must get their
education in a classroom with non-disabled peers to the maximum
extent possible. It mandates that a "continuum of services" be
provided by the school system.
The continuum of services is a list of placement options that a
school system must offer a student with special needs: ranging
from teaching in a special school, to time out of the classroom
part of the day, to full time in a regular classroom.
The Greens said they know Julie probably won't be a rocket
scientist, but they want her to be educated as much as possible
in her classroom -- which IDEA mandates whenever possible.
The school system, however, wanted to pull her out of her
classroom for part of her day, consistent with IDEA's continuum
The question first arose in the spring 2002 when the Greens and
school officials began developing an Individualized Education
Plan (IEP) for Julie as she prepared to enter first grade at
All students identified as "exceptional" (special needs) are
educated according to this personalized plan, which lists skills
and educational goals and the support needed to reach those
Julie's verbal and receptive language skills are at the proper
grade level. She falls behind traditional student standards in
math, language arts and speech.
During Julie's spring and summer 2002 IEP meetings, school
officials decided it was best to increase -- from 21 percent to
60 percent -- the amount of time she would spend in a
"It was apparent to us that the school system was focusing
heavily on what they termed "functional" skills such as crossing
a street, not talking to strangers, etc., versus true 'academic'
skills like reading and math," Jim Green said.
"Through the spring and summer we did a lot of research and
found that children with Down syndrome could and do learn to
read and write. Some earn full academic degrees from high
school, gain drivers licenses, and go on to academic courses in
School officials wouldn't talk about the specifics of the Green
case, but they did discuss special education in general. Hearing
officer Janet Sheehan also declined to comment on the case.
More then 2,000 children qualify this year as special education
students in Monongalia County, and about 600 of those are
The cost of special education
The Monongalia County Schools special education department
receives money from three sources: county funds, state and
federal grants and Medicaid reimbursements. For the 2002-2003
school year, the department received $10.29 million in county
funds and $1 .49 million in state and federal grants.
Lundeen said the county receives more then $300,000 a year in
Medicaid reimbursements, which are paid for services rendered to
students by personnel such as occupational and physical
The June 2003-June 2004 fiscal year budget allocates $33,144,290
for regular elementary and secondary education, salaries,
substitutes, employee benefits, classroom supplies, equipment
and miscellaneous expenses.
Monongalia County Schools had a first-month enrollment of 10,266
students, of which 2,000 are special education students.
The 8,266 regular education students are funded at $4,009 per
Special education students are funded at $5,262 per student. The
special education department gets $10,525,890 for its 2,000
The right to dispute
Only a handful of Mon parents dispute their children's IEP's,
Lundeen said, and there have been five due process hearings in
the past five years, two from the same parents.
The Greens have had six IEP meetings in three months this year.
Monongalia County schools had a court reporter and lawyer
present at all of those meetings, and the Greens had their
attorney present for five.
That's what happens when you challenge the status quo, say the
Greens. They view special education as a service -- not a place
-- and argue that all children learn differently but can be
educated in the same room.
"She can't get the same (lesson) delivered in the same way," Jim
Green said. "But that's why the law requires modifications,
aides and supports."
Julie took her first spelling and math tests in a regular
classroom this year. The tests were modified to suit her
abilities -- she had to spell three words instead of 10 on the
spelling test and typed her answers into a computer due to weak
handwriting s kills.
Students in any given classroom aren't being taught at the same
level, Jim Green said. Some children need help with reading,
some with math, and at North Elementary, where more then 25
native languages are spoken, some need help learning English.
Feeling the pinch
One year and $70,000 later, the Greens are feeling more then
They have used their savings to pay $2,000 a month in legal
fees, and recently bought a house in another school district
because they no longer felt welcome at Mountainview, where Julie
The Greens are now fighting for reimbursement of their attorney
fees. The school system's attorneys have been paid every month
through August, although the Green's attorney has not been
reimbursed. Even worse, the Greens say, the school board is
still paying to fight them.
Jim Green works two jobs, one as deputy branch chief, technology
branch, at NIOSH in Morgantown, the other as president and
primary engineer for Air Vehicle Concepts Inc. He's used all of
his vacation days to litigate and attend meetings.
A tentative settlement for an undisclosed amount was approved by
both sides in early November, although the school system has yet
to sign the agreement, Jim Green said. "There is no doubt that
we have been traumatized beyond anything we could have imagined,
yet it still continues."
The school system has paid $99,943 in attorney fees from August
2002 to August 2003 for the case. The four-day hearing alone
cost it more then $5,000.
Mon's legal fees for special education hearings and other
matters totaled $345,865 from fiscal years 1999-2003. In
2002-2003, the year of the Green's hearing, the school system
paid $124,000 in legal fees.
Legal fees still mount. All interaction between the school
system and the Greens has transpired with lawyers since the
hearing, the Greens said. Even parent-teacher conferences have
been tape recorded.
SPECIAL EDUCATION TERMS
Glossary of special education terms:
Due process hearing: A formal procedure to resolve conflicts
between a school system and parents about a student's special
education services. A state-selected impartial hearing officer
makes a ruling.
Inclusion: Educating students with disabilities in regular
classrooms -- to the extent possible, with support and services
provided as much as possible.
Individualized education plan (IEP): A document that lists a
special education student's needs, performance level,
educational goals and objectives and services required.
Individuals with Disabilities Education Act: A federal law
requiring public school systems to provide a free, appropriate
public education for students with disabilities up to age 21.
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