A big 9th Circuit win for parents of kids with IEPs (individualized education protocols) came down recently, and the prevailing attorney is podcast alum Tim Adams.
In the first of this two-part discussion, we set the table to discuss Irvine Unified School District v. Landers and Gagliano. For example, to understand why parents trying to help their dyslexic daughter needed to make a federal case out of it, you should know:
💵 The school district spent over $1.13 million on its attorneys (at hourly rates up to $1300!).
🥼 The hearings in these cases are often a “trial by experts.”
🙈 IEPs are a constitutional right, so school districts are not legally permitted to consider their costs—but obviously they do. So how does that work?
⚔️ Parents wrongfully denied an adequate IEP have no recourse but to get their children the resources they need—out of pocket—and then fight for reimbursement.
Tim Adams’ biography.
Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.
Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.
Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.
The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.
Announcer 0:03
Jeff, welcome to the California appellate podcast, a discussion of timely trial tips and the latest cases and news coming from the California Court of Appeal and the California Supreme Court. And now your hosts, Tim Kowal and Jeff Lewis, welcome
Jeff Lewis 0:17
everyone. I am Jeff Lewis
Tim Kowal 0:19
and I'm Tim kowal. Both Jeff and I are certified appellate specialists, and as uncertified podcast hosts, we try to bring our audience of trial and appellate attorneys some legal news and perspectives they can use in their practice. I'm still working on on a snazzy new opening gag, Jeff, but haven't come up with one yet. Nonetheless, if you like the podcast, please share it with a colleague. Yeah. If
Jeff Lewis 0:40
you don't like it uses a natural sleep remedy.
Tim Kowal 0:42
All right, Jeff, we've got a new a new guest, actually, actually not a new guest, an old guest. Tim Adams, we talked with Tim Adams back in episode 69 about education law and lo and behold, recently, I was thumbing the pages of The Wall Street Journal and saw an article about some big education law news out of the Ninth Circuit, and it turns out that the prevailing party was Tim Adams client. Tim Adams is the principal attorney at Adams and Associates. He received his bachelor's degree from UC Irvine. Is his JD from Pepperdine. He has served as adjunct perfect Professor and Associate Director of the special education advocacy clinic at Pepperdine. You can learn more about Tim. We had a wide ranging discussion in Episode 69 we're going to continue the discussion about some about practice and about some of the problems in special education law. And then we're going to launch into a discussion of Irvine unified. But first, let me welcome Tim. Thanks for being here, Tim, and thanks
Tim Adams 1:46
for having me again. Tim, appreciate you. And Jeff inviting me back.
Tim Kowal 1:50
Yeah. Well, as I mentioned, you were in the news recently. That must have been exciting to have a big Ninth Circuit win. The case is Irvine Unified School District versus landers and Gagliano. We're going to talk about that case a little bit a little bit more, but just tell us a little bit about what it's been like to get a rather high profile victory like that and get written up in the Wall Street Journal.
Tim Adams 2:12
It's very exciting for us, and certainly for my clients. It was a long battle that they had with the Irvine Unified School District many opportunities to resolve that case over the years, and we thought we were getting close at times, but unfortunately, weren't able to get through to a resolution. So after a number of Appeals, and you probably saw that, that flow chart that I sent you that shows how many times this case went up and down various levels remand, you know, quite a bit. Yeah. So it's a little confusing. A lot of facts there, but it was incredibly exciting to be featured in The Wall Street Journal, and we're very thankful to Sarah and also the Randazzo, the reporter that wrote this story, I think she did a wonderful job.
Tim Kowal 3:03
Well, it's a big issue, and it's an important issue, and I'd like to set the table before we dive into the details of the Irvine case, because not a lot of attorneys, not a lot of people understand about education law and what IEPs are, but a growing number of parents do know what IEPs are. So in more and more of my conversations, when the topic of education, law and IEPs come up, there's usually maybe one or two people who don't know what what it is. But then just as many people do know what they are and why they're important, and that's kind of what I wanted to talk about a little bit as we set the table for talking about Irvine unified, but before we get there, let's just talk shop a little bit and and tell me about how your practice is going. Jeff and I had a we had a fun conversation recently with a fellow appellate attorney, Rafi Melkonian, about how hard it is to start and maintain an appellate practice and wonder if you could tell us a little bit about how your your education law practice is going. That's a that's a little bit by the you know, it's it's not a common area of law. We all know, family law attorneys, personal injury attorneys, you know, trust and probate attorneys, education law attorneys are rather few and far between. So how's it been going, starting and maintaining a busy law practice, especially I think I'm sure the phone is ringing now more after some some nice ink in the Wall Street Journal.
Tim Adams 4:30
So yeah, we started. I started the practice originally with partners back in 2021 and we've continued to practice in this area ever since. So it's been our specialty, if you want to call it that, it's not a certified specialty by the State Bar or anything, but it is our specialty. This is what we do. We represent only students who are impacted by a variety of different diagnosed and undiagnosed disabilities on claims against a. Public school systems, could be a school district or a public charter school, the rules are the same. You know, initially, when we when we started, I attended a lot of IEP meetings, and I and I think our since then, our practice has grown. There's a lot of litigation. I think most cases, from our perspective, require some level of litigation, meaning at least the initial due process complaint, which is an administrative lawsuit that under the Individuals with Disabilities Education Act, is required to exhaust administrative remedies before you get to say, state or federal court. So that's our trial court. Is the through an agency of the state called the Office of Administrative Hearings. They currently hold the contract. So we started out, I started out doing a lot of IEPs. And then, of course, when you enter, you have a dispute with the school district, either party can file a due process complaint in most circumstances and and you know, most of those cases, just like any other area of of the law, you know, litigation can be very expensive, so many of those cases will resolve well before we have to make it to that trial, that administrative trial. So the statistics across are statewide. Are, you know, about 90. I believe there are about 95% of cases that are going to resolve. We see that that range among our cases as well. So, you know, we're probably, you know, filing a couple 100 complaints every year, and most of those don't have to go through that administrative trial. But the ones that do you know, you know, they you know, we're usually not having to go through an appeal process. We, coincidentally, have a pretty robust appellate practice now, as a result of cases that are being appealed by, you know, that we're appealing, or that the school district is appealing. So I haven't seen this many appeals in, you know, a very long time, and I think a lot of it has to do with, you know, the the larger volume of cases and filings that we're having to do, and certainly we're representing quite a few more clients than we did see 15 years ago.
Tim Kowal 7:05
And when you say cases are getting appealed, you're talking about going from the ALJ at the Office of Administrative Hearings up to the district court, not necessarily to the ninth circuit. That's correct.
Tim Adams 7:18
So that's our first level of appeals. They're like the appellate court for us. They're going to accept the administrative record. We're not putting on another trial at that level. Typically, we will handle those cases that have already been have gone through the the trial process. We'll handle those by brief often, and then we'll do an oral argument once the briefs have been submitted. So it's a bit more of a streamlined process, you know. And usually the district courts won't, you know, won't want you to call a bunch more witnesses, you know, if you already had that opportunity at the at the administrative trial level. I mean, there are circumstances where we may do a deposition here or there, but for the most part, it's, it's on the briefs, and then we're orderly arguing the issue in front of the district court, and then on up, if, you know, a handful of those may make it to the ninth circuit. And we've had, you know, several in the last, I would say, five or six years you know, that have gone through the ninth circuit. So,
Tim Kowal 8:19
yeah. How many cases? You say, about 95% of your cases settle. You file the complaint and and you're then you're able to reach a resolution of the 5% that get litigated. You know, how many have to go up on appeal to the District Court? And then how many of those, I assume it's, it's getting vanishingly fewer that have to go all the way to the night. Yeah, I
Tim Adams 8:41
mean, less than 1% have to go that that high. We're just seeing more. So we're not doing, we're not, you know, generally speaking, the appeals that we're handling are cases that my office had litigated and in the at the trial level. So we're not, usually we're not hearing from families saying that they like us to handle in a case that's in the ninth circuit or that's in the district court already. So, you know, it's really going to be a lot fewer cases that that end up that going to that high up.
Tim Kowal 9:15
Yeah, and when we last talked, this was back in January, 2023 at that time, you know we discussed, there are already a lot of parents of children with autism, children with ADHD, with dyslexia, and all these parents may be considering seeking, seeking an IEP and individualized education program from their School in the year, over a year since we last spoke, are the are the number of parents who are interested in seeking IEPs? Is it holding steady? Or is there? Is it greater? Is it lesser?
Tim Adams 9:52
You know, I'm seeing about the same number. We do see more parents that are looking for. Eligibility determination. So they may not have an IE, they may not have had an IEP. Maybe had they had what's called a 504 plan, an accommodation plan. So when you say they're seeking an IEP, often they come to us with an IEP, and the IEP just hasn't been appropriately addressing the student's needs like it like was in the Galliano landers case, that student was in sixth grade and reading at a third grade level, the IEP wasn't working, and in part because, you know, the district was, you know, a really modifying curriculum without parent knowledge or consent, and that and calling it a combination, and that was part of the confusion, and that was interesting. We can get into that in a second. But in answer to your general question, we have most of our clients already have an IEP, and there's a handful that may not have an IEP that needed one, and so we're starting helping them start that process. Yeah, are the
Jeff Lewis 10:51
lawyers only get called in when there's friction between the school and the parent on the IEP. If the parent is getting everything they perceive they want from the school, there's no need to really call in a lawyer. Or they perceive no need to call in a lawyer.
Tim Adams 11:04
That is absolutely true, Jeff, I mean generally, and I joke about this, people don't call me when things are going well. Our things are going really well. They call me when something's there's a catastrophe, some sort of disaster. Or they just see, have seen, over the years that their child hasn't been making progress, and like, like in this Galliano case, has been falling further and further behind. How
Tim Kowal 11:26
long are the parents typically struggling with the with the schools to modify the IEP before they throw out their hands and say, I need to, I need to call Tim Adams. You know,
Tim Adams 11:38
sometimes they're a bit more proactive, and they they're just entering the system and and, you know, they may give it a year. Sometimes I see families that have really trusted that the district has the best interests of their children in mind, and they're giving it more than just maybe a few years, three or four years, and then realize, oh gosh, now we're in middle school, and we're almost done with that. We're getting into high school, and I'm not seeing a great deal of progress. So whatever is happening at the IEP isn't really working. But you know, parents will attend these IEPs, and often, you know, there's a lot of commitments and discussions, and trust us, we know what's best for your child, and parents really want to believe that. In fact, you know, when I go to school meetings for my own kids, you know, teachers say, hey, we, you know, really care about your child. I mean, you really want to believe that nobody goes into an IEP meeting or a meeting with the school staff thinking that they're lying to you, or they're trying to deceive you in some way, or they're making things up. They really do want to believe that the district cares about the child, but after a few years of you know lack of progress that that relationship begins to deteriorate. And so many of my clients, because the relationship has gotten to a point between them and the school district that they don't they no longer trust their ability to properly educate their child, or looking outside of the school district into a private school and asking the school district to pay for that cost.
Tim Kowal 13:09
Yeah, yeah. And then, and we'll talk about that with something that happened in the Galliano case. And to back up a moment, you'd mentioned that that a lot of the disputes, maybe most of the disputes, are about modifying an IEP that's already exist, that already exists, but it's not it's not meeting the need. It's not getting the kids caught up. But if we can back up just just for a moment, how the IEP comes up in the first place, to do parents know enough, typically, to ask about getting an IEP, or is that discussion initiated by the by the school. Well, this
Tim Adams 13:42
the law puts the responsibility on the school district to to do what's conduct a what's called the child find, find and assess any student that it suspects may be struggling with education. And it doesn't just have to be academics. It could be a social, emotional issue. I have a number of clients who get straight A's, but also have attempted suicide several times because of mental health concerns. The district has the same responsibility to try to address those needs. So ultimately, you know we start with you know that in the district has a duty to locate that student and whether or not they have a disability, the law really doesn't. It doesn't matter. You don't have to come in with a diagnosis of ADHD or just, you know, dyslexia or autism. If you're struggling and you know they suspect that it may be because of even an undiagnosed disability, they still have the same duty to investigate and conduct an assessment, and that assessment is identifying eligibility for that IEP under 13, one of 13 or more than one of 13 categories. And so it's really an eligibility criteria that we're looking at. For example, other health impairment is one of the eligible. Disability criteria. And you know, student that may have ADHD would you know, who's struggling with to accessing education, would fall into, potentially, that category. Student with dyslexia may fall into a category of specific learning disability. So they're not diagnoses that the district is is finding there are they're just really eligibility, whether they meet eligibility criteria for an IEP.
Tim Kowal 15:26
Do you often need to call in experts on these various subjects of relating to autism or relating to dyslexia to get a proper diagnosis and to make a treatment plan? Basically, yeah, a plan of what the kid actually needs if the if the school is has a has a less satisfying program on offer almost
Tim Adams 15:50
every time, and there's a mechanism that the law allows the parent to use to ask the school district to fund that independent evaluator or expert, that person later becomes an expert, often in a due process context, if we're going through an administrative trial, we would call them and qualify them as an expert and have them testify, but, but they start out as often as an independent educational evaluator. It could be a psychologist, it could be an occupational therapist, it could be speech therapist, you know, a developmental optometrist, a number of you know, any area of need that that person within their discipline or would have assessed, they're helping to identify what the child's needs are, so they can make a recommendation as to whether the IEP, first and foremost, has been addressing those needs. And if there's no IEP, does you know, does that child meet eligibility criteria, and if, and if there is an IEP and hasn't been addressing those needs, what would what? What does that program look like? So it's almost like, like an architect or designer, if you're going to build something, you need to start with a design and an understanding of what you're trying to build. So you can figure out, you know what materials to buy, and you know how long it's going to take, and who to hire and what the cost would be. The independent evaluators role is to help us do a lot of that.
Tim Kowal 17:12
Do the same psychologists and experts appear again and again in these cases. They
Tim Adams 17:19
often do, I think that you know, because it's such a specialized area, you know, you're many psychologists may not have a really good understanding of how the law views special education and how a student may be or why a student may be eligible for an IEP. And you know, what's, you know, what's required in an IEP, and you know, so, so we really, you know, we are looking often at folks that really, truly understand that process, and we're interested in understanding that process. And so, yes, we would see a lot of the same people. It's a small community. I would say that that that applies even across the board to most professionals that who work in this field. You know, it's a small community of student focused attorneys like myself. It's a small community of defense attorneys that represent school districts. We see the same folks over and over again. Yeah, and
Tim Kowal 18:12
do the hearings turn into a trial by experts? You know, the often the parent psychologist says, We need this, and the school psychologist says, No, this is fine the way, it is
Tim Adams 18:23
absolutely so that's really pivotal, having that expert opinion. Often, our case a case without an expert it, you know, we see it's very unlikely that it's going to resolve. And the better prepared you are in terms of getting your expert opinion even before a mediation conference, you know, the more likely you are to come up with some sort of resolution and avoid that trial together. But in circumstances where you have discussions about resolution, it hasn't worked out that expert does you know? You know is testifying as to their opinion, districts are calling their own experts. Often, those are employed staff, you know, psychology, school psychologists and other therapists, but occasionally, if it's a complex issue, they may call an independent third party expert. And we've had that happen a number of times.
Tim Kowal 19:09
What happens when this calls to mind Jeff's frequent advice in in family law or domestic violence issues where you know you didn't get a domestic violence restraining order this time, but you know, just you tell the client, keep notes, keep careful notes, and you can go in and try it again. Or you can get a if you didn't get a modification of custody or of support that you wanted, just keep careful notes and you can try again if there's a change in circumstances. Does that sort of thing happen in IEPs? Let's say that we just had a hearing, a trial by experts. And, you know, the the parents had an expert this, the school district had an expert. And the ALJ said, Yeah, I'm just going to side with this, the school district's expert, and keep the IEP the way it is. Can you revisit that? You know, bring the case again a year later, say. And. And say, Hey, we did what the what the school's IEP said, and we're still not getting any better results. We're still falling farther behind. We're not getting the results that the, even the experts, said that we would get. So obviously, this expert doesn't know what he's talking about, absolutely. So
Tim Adams 20:16
when we've we've given that IEP a try, or my clients have, you know, often they've, they've done this without counsel. Sometimes they come to us saying, Hey, we've given a try. We have evidence that they've tried it that program, if it's gone through an administrative law judge already through due process proceeding, then you know, often what I see is helpful. And you talk about keeping good notes is having a really good exchange. Often, emails will help tell a better story. And parents who are diligent in following up with school district and staff members about what's happening, progress or lack of progress, getting responses, having informal meetings, even that will put us in a better position to prove claims, because we, we've got that, you know, we've got that record, very clear record, of parents, you know, keeping track of what's happening and not happening with with regard to the IEP along the way, and it were able to then show the administrative law judge through the process that they did, in Fact, implement and try to implement all these services. And, you know, here's, here's the progress report, the quarterly progress report on what are called IEP goals. And we're still, you know, less than 20% achieve achievement. In fact, maybe these goals are even repeated from the prior year that, you know, the the progress notes on IEP goals, and the data that's collected along the way that the law requires the district to keep, really tells a great story. And they've had several cases where, you know, if it's a, let's just say there's some behavioral concern related to a student who has a diagnosis and an eligibility of autism, they're, you know, two different things. You could have a diagnosis and an eligibility, as I explained before, but for autism, you could have both an eligibility and a diagnosis, and it's the same name. So let's just say that there's some behavioral challenges, and the district had hired or had a one to one aid collecting data over the course of several months. That data collected is very telling as to whether the IEP is even being implemented properly, so we may have 1000 pages of daily data that's collected on as part of a, you know, the IEP that we're able to review and then present to the judge and show you know that there is clearly a lack of progress. But yeah, in certain judges, I would say administrative law judges, and even district court judges, they don't like to be one person IEP team. So often, they'll decide that what's happened in the past was not appropriate denial of what's called a free, appropriate public education, which is what the law requires that districts provide to students. But then they'll order the parties back to an IEP to talk about what's happening now and determine what's appropriate for a student. We just had a decision come back on an expedited hearing for a student that was having some behavioral challenges in a classroom and in circumstances where the student is being suspended. As an example, there's a limit on the number of suspensions that can happen in one school year for a student eligible for an IEP, so once it reaches 10 days, that's your limit. Otherwise, it's considered a change of placement. And there are circumstances, if the district wants to try to forcibly change placement, they have to get a judge's opinion. But generally speaking, yeah, if you've tried it and it hasn't worked, and you can show evidence that it hasn't worked, you're in better shape to show that that IEP was an effective right?
Tim Kowal 23:43
Okay, well, this has been, this has been excellent to set the table for talking about the Irvine Unified School District versus landers and Galliano case. And just, just to set the table just a little bit more. Tim, you represented the family throughout this prolonged legal dispute, I think it went over. The litigation lasted over five years, and the case is emblematic of a growing number of high stakes legal conflicts surrounding Special Ed nationwide, and the complexities and costs families face again. The Wall Street Journal reported on this case under the headline, why one school district spent a million dollars fighting a special education student and and one of your your money quote from that article that you observed that never in my career have I seen so much litigation by a district against one family. Now, Tim, we've been trying to just set the table here. So before we get into the nuts and bolts of the Irvine case, which we're going to to talk about in our next episode, we're going to recess here and then talk about that in the next episode. But is there anything else that that we need to know, that our listeners need to know, just by way of setting. The table about why a case like this needs to exist in the first place, and why, why a family would need to school a district, and why a school district would fight so hard, as the Wall Street Journal said, why one school district spent over a million dollars litigating it?
Tim Adams 25:14
That's precisely the question we've been asking ourselves, or we're asking ourselves for years about this case in particular, it didn't really make a lot of sense, knowing that the fees were increasing significantly, and I had done probably a number of public record searches on my own to see how much Irvine was paying little Mendelssohn, the law firm that represented the school district over the course of this case, and it was hundreds of 1000s of dollars, you know, even, you know, you know, I think even into 2019 and 2020 you know, the fees just kept growing. And so we were trying to figure out, why does this, why does this make any sense for the district? Because, you know, as you can see, it's, you know, the the case, you know, was highlighted not because it's a published case. It's an unpublished case. There was no change in the law. You know, this is not going to be a pivotal legal issue, I think, for anyone. And we were only initially in dispute over about $40,000 so, you know, we we really couldn't figure it out, and it's hard to say exactly why they would choose to do this. What we were able to identify, at least based on information that that we have, is that that law firm in particular was not representing on very many cases, possibly even this single case. So in on the special education side, I can't say for sure if they represented other issues, but we certainly have a volume of cases in Irvine, and so do our colleagues, other folks that practice in the same field, and we weren't seeing them appear so they there was the single case, the single law firm, and we were we were also litigating other cases with Irvine and other law firms that were settling frequently. They use another law firm primarily for most of their special education cases, and then two others that are much smaller for a couple of cases. But we'd only seen this particular firm, and I've only seen them in two cases in my entire career on any special education matter. So it was interesting that they chose this one. Happens to be a very expensive firm. Public records revealed that partners at that firm were billing over $1,300 an hour, and that's just unheard of for a public agency to be paying, potentially paying over $1,300 an hour for partners on a special education case. Most law firms that do defense work are charging more of a discounted rate, almost akin to an insurance company. Defense firm that gets a volume of cases and is charging a discounted rate. So why would you spend in, you know, some of, I think, the primary folks representing where I think may have been in the five or $600 range. But why would you spend up to $1,300 plus for, you know, a case, I mean, a case like this, we don't know. And I wish I had some better answers for you. You know, even after digging that was one of the same questions that the Wall Street Journal was inquiring about, like, what's special about this case? What's special about this particular child that they'd want to really fight hard on it? We couldn't really figure it out.
Jeff Lewis 28:33
You know, I don't do special ed. Was it possible it had nothing to do with this particular kid, but the cumulative impact of this issue across a lot of kids at the school districts trying to gonna, you know, arm up with expensive lawyers, draw a line in the sand on this one particular issue, because it might apply to other kids, or was this a fairly unique issue? As to this? John, well,
Tim Kowal 28:53
hold on, hold
Tim Kowal 28:54
on. Let's, let's, let's table that. That's where I want to go in our in our discussion about Irvine unified, and we'll and we'll dive into that in the next episode. So so stay tuned for that audience. We are trying something different. We're breaking up these conversations from hour long conversations into a little bit more digestible session. So tune in for the next episode. We're going to dive deeper,
Jeff Lewis 29:17
right? If you have suggestions for future episodes, or you want to email some hate mail to Tim about that tease and that interruption in the interview, email us at [email protected] and in our upcoming episodes, look for tips on how to lay the groundwork for an appeal when preparing for trial.
Tim Kowal 29:31
Okay To be continued.
Announcer 29:32
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