March 2020

The MLO Minute: By Nancy Potter, Esq.

At our firm, we handle a great many cases on behalf of children with special education needs, and every case we accept is one where we believe that the child and family are entitled to improved educational services. Therefore, in those cases where we proceed to a special education due process hearing and do not prevail, we carefully assess how we might succeed on appeal to federal court.

Prevailing in federal court where an adverse decision has been issued is often a daunting task.  But our attorneys have more collective experience in federal court matters then virtually any other special education practice, and we constantly keep abreast of critical legal developments and research creative approaches to best serve the students and families we represent. These efforts and our extensive experience allow us to succeed in federal court appeals despite having not prevailed at the original hearing.

A recent example of a case where this diligence and perseverance paid off was the case of Barry B. v. Delaware College Preparatory Academy. In that case, a Delaware hearing panel refused to consider any claims made by the family, holding that all issues were barred by the statute of limitations under federal law. We strongly disagreed with this panel ruling, as a number of the claims were, in our view, clearly made within the allowable timeframe (generally two years but sometimes longer) under federal special education law. Even though a federal district judge in Delaware agreed with the hearing panel, we appealed again to the United States Court of Appeals for the Third Circuit. That court agreed with our position and held that all claims which were made within two years of the filing of the due process complaint must, without exception, be heard by the hearing panel, thus providing the family with a route to relief which had been denied at the due process hearing and in the initial federal court decision.

This particular case is important for our Pennsylvania clients as well as Delaware, as both states are under the jurisdiction of the US Court of Appeals for the Third Circuit.  That means that our win in this case is really a win for all of our clients in Pennsylvania and Delaware.

An essential part of our practice is advocating vigorously for our clients. Where we believe a clear legal error has been made, and an avenue to appropriate relief is apparent, we are unafraid to proceed  further to pursue a just result.

Nor should financial considerations prevent families with a child with disabilities from having access to the adjudicative system to obtain appropriate services for their child. We provide free consultations in special education matters, and a great many of our cases are handled without hourly charges for our work on behalf of families. Call us today or Contact Us Here!