Special Education Article
The difference between educational and legal advocacy and representation
What is an advocate? When do you need an attorney? These questions are best answered by making a distinction between educational and legal advocacy in the context of the individualized education plan (“IEP”). Generally speaking, an attorney addresses disputes that arise from the educational program. An advocate address the educational program until a dispute arises. This distinction is often blurred because defining the moment that a dispute requires an attorney can be difficult. In practice, an educational advocate and attorney play different roles and can work together as part of your team.
In the early stages of a dispute the line between education and legal advocacy is unclear because the law is active in the special education process at all times. The law puts in place a procedural structure that must be followed and requires the program to meet basic qualitative standards. For instance, procedurally a school must assess children that are suspected to have a disability and need special education and related services. From a qualitative standpoint, an IEP must have measurable goals and services that are developed to help a child progress in those goals.
An advocate’s focus is on education. For example, an advocate will examine the impact of a child’s disability on education and identify a child’s unique needs. By reviewing records, getting to know your child, and monitoring progress, an advocate helps formulate measurable goals, determine and select programs that provide methods of teaching that will help a child’s progress, and identifies areas of need that are under-addressed. To accomplish this, effective advocates understand the structure of special education law, the student’s right to, or school’s responsibility to provide, education and services.
In many ways an advocate, and in some respects the entire IEP team, is like a construction crew. A construction crew knows how to build, the materials to use, and how to utilize resources to get a project done. The law is like the architect, providing the overall plan. The plan is derived from multiple blueprints: or codes, regulations, and policies and procedures. Advocates and parents are like a foreman of sorts, checking the integrity, approving or disapproving of how the build is progressing, and making suggestions on how to proceed. When the foreman believes the crew failed to follow the blueprints or something is wrong with the program and the rest of the IEP team is unwilling to address the problems an attorney helps the foreman resolve the dispute.
As you might expect, advocates often have a background in education. However, there are different types of advocates. For example, parents who have gone through the process with their own children often make great advocates because of their unique understanding and experience. Some advocates have specialized master or doctorate degrees in education or psychology or worked for the schools at one time or another as teachers or support staff. When you hire an advocate you should ask questions about their background and approach to advocacy. Although there are programs that provide training and certification, there are no state licensing requirements for advocates.
Attorneys practice the law. An attorney is a professional dispute resolver and understands how to utilize dispute procedures. In special education these procedures range from informal meetings, compliance complaints, mediation, to due process hearings and appeals. An attorney is generally not required but it’s always a good idea to consult with one. A parent can always represent themselves. In informal dispute proceedings, including due process, a parent can utilize the help of others experienced in the process; however, only an attorney may engage in the practice of law. Attorneys attend law school to receive a Juris Doctorate and must be licensed in the state they practice.
Working with an attorney to resolve a dispute can make a difference. An attorney’s knowledge of the legal system and ability to evaluate the strength of your side of a dispute is very important. Attorneys narrow down and clarify complex issues (focus), write and apply facts to the law (communicate), and utilize the legal system (strategy) to achieve the best possible outcome. Attorneys can review records, identify issues, and advocate for a quick resolution of a dispute at meetings, through letter writing, or formal complaints. If a dispute goes to hearing, attorneys are trained on how to write complaints, motions, closing briefs, presenting issues, using and objecting to the introduction of inappropriate or non-relevant evidence, questioning witnesses, and making opening and closing statements.
Despite the differences, there is a lot of crossover between advocates and attorneys in special education. An advocate must understand the structure of the law and how to operate inside of it to accomplish results. An attorney must understand education to identify where things are going, or have gone, wrong. However, an attorney is not an educational consultant or an expert on disabilities. When disputes proceed to hearing experts are often needed to provide information on why the parents’ view of the situation is accurate. Similarly, an advocate cannot give legal advice, is not properly equipped to represent a child at hearing, and cannot appear in, or appeal to, state or federal court.
Advocates and attorneys work well together because of their differences. Advocates are well equipped to determine when an attorney should get involved and recognize when a disagreement is a legal dispute. Attorneys can help navigate disagreements and provide guidance to circumvent problems because of their understanding of the law, the legal system and how it applies to special education. It is useful to make the distinction between “educational advocacy” and “legal advocacy and representation” because both “advocate.” However, neither advocate without some knowledge and understanding of the other’s unique skills.