Pennsylvania school district sues mother over alleged abuse of special education laws

From the Allentown Morning Call in Pennsylvania:

Taking advantage of a change in federal law, the Bethlehem Area School District has sued a mother, claiming she has abused special education laws to ''drive up costs'' so high, it would be cheaper for the district to pay private school tuition for her intellectually gifted children.

In doing so, BASD joins a growing number of school districts across the country that are trying to recoup attorney fees resulting from what they call ''frivolous [and] harassing'' legal maneuvers by parents or their lawyers under the federal Individuals with Disabilities Education Act.

According to the lawsuit filed Friday in U.S. District Court, Diane Zhou of Bethlehem Township has a ''pattern and history'' of refusing to approve state and federal special education services for her two children. The suit alleges Zhou:

Requested 22 due process hearings for her children, identified in the suit as M.Z. and J.Z., in the past eight years.

Demanded during the 2007-08 school year the district pay for a Mandarin interpreter for her children at all special education meetings, even though M.Z. had been enrolled since kindergarten in 2001-02 and J.Z. since he entered first grade in 2005-06. The cost to transcribe one hearing was more than $40,000. Last month, Commonwealth Court ruled the district did not have to provide the transcripts.

Filed two mediation requests with state special education authorities and two federal complaints with the Office for Civil Rights in the last school year, and refused to allow the district to evaluate M.Z. as she had requested.

Commonwealth Court, the Office for Civil Rights and various state education authorities sided with the district in all complaints and hearings, according to the suit.

But the suit states Zhou intensified her ''vexatious'' behavior when she told state mediator William Haussman on Nov. 24, 2008, she was ''engaging in due process procedures to drive up costs for the district so that the district would agree to pay'' for her children to attend private Moravian Academy in downtown Bethlehem.

Reached at her home August 4, Zhou, who does not have an attorney, said she did not receive a copy of the suit. She declined to comment, except to say she worried about a backlash against her two children, who still attend school in the district.

''You are the first person who told me about this,'' Zhou said.

Citing the lawsuit, Superintendent Joseph Lewis (pictured) declined to comment.

District solicitor Donald Spry said the suit is an attempt to recover some costs the district has incurred over the years. It is not meant to scare any parents from filing legitimate requests for services.

''It's not an attempt to prevent any parent from presenting legitimate issues to whatever tribunal is appropriate,'' Spry said. ''It is an attempt to stop an abusive process.''

The district filed the lawsuit under the Individuals with Disabilities Education Act, which under its original name, the Education for All Handicapped Children Act, was the landmark 1975 law that opened public schools to students with learning disabilities.

The federal law requires schools to provide special education students with an Individualized Education Program, a blueprint for teaching and grading a student based on his or her mental ability, not grade level.

The federal law, however, does not mandate special education services for intellectually gifted students, such as Zhou's, unless the gifted student has a learning disability defined under federal law. A separate Pennsylvania law requires schools to offer gifted students a service that is similar to the federal Individualized Education Program.

The suit states M.Z. has been identified as a state-approved gifted student who also has a federally defined learning disability. J.Z. is gifted under state regulations, the suit says.

The district filed the lawsuit under a 2004 provision Congress and then- President George W. Bush inserted into the Individuals with Disabilities Education Act. The provision allows districts to file federal lawsuits to recoup attorney fees from lawyers if they file ''frivolous, unreasonable, or without foundation'' lawsuits.

The law also allows districts to sue parents if they act as their own attorney while filing complaints and other legal actions that are meant to harass officials, delay service to their children or ''to needlessly increase the cost of litigation.''

Lehigh University education professor and lawyer Perry Zirkel said Congress tried to level the playing field for school districts because parents have been legally allowed to recoup attorney fees on successful federal special education lawsuits since 1986.

Zirkel said that in 2004, Congress was responding to a public backlash to rising costs of special education cases, which now make up the bulk of all school-related lawsuits.

Suits against lawyers have been been tried in California and Alaska, Zirkel said, but they failed. He said Bethlehem's may be one of the first against a parent, and he expects a similar outcome.

''This is definitely new, because before 2004 there was no provision for the district to go after a parent,'' Zirkel said. ''[But] the vast majority of these cases have been unsuccessful. The reasons they've been unsuccessful is because on balance what the districts regard as 'harassing' and 'frivolous' is hard to interpret before a judge, who is like a referee in a boxing match.''

Although school districts may have little chance of winning in court, Zirkel said, the Zhou lawsuit and others like it might serve as warnings to parents and lawyers that school districts are willing to fight back if pushed too far.

''It's an uphill slope to win,'' he said, ''but it's a cannon shot across the bow.''