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MOMS BLAZING TRAILS IN ADVERSARIAL SPECIAL-ED SYSTEM

In the battlefield of public education, special education is the war zone for Sheila Barr and Brenda Shepard.

The founders of FACES -- Family Advocacy for Children's Educational Services -- have been battling the educational establishment for nearly five years. And they've been winning.

Most recently, they took on the Springville-Griffith Institute Central School District and attorney Jerome D. Schad, the special-education specialist for Hodgson Russ, a law firm that represents a large percentage of Erie and Niagara county school districts.

Working with attorney Andrew Cuddy, the two mothers of special-education students helped win a ruling in favor of the family of an 11-year-old autistic and mentally retarded boy, saying he had been denied a free and appropriate education by the district.

Cuddy said the ruling was significant because it may have been the most strongly worded one ever applied to an area school. The district was found wanting for allowing the boy to miss three months of school while it came up with an educational plan for him, and then for allowing the plan to be ignored by the teaching service it contracted with.

And the case isn't the first loss in Springville. Before they started working with Cuddy, Barr and Shepard won rulings in three straight hearings against the Springville school district.

Barr and Shepard have also argued cases involving children in Niagara Falls, Gowanda and the Kenmore-Town of Tonawanda districts. In a majority of cases, they've won their claims outright, and in every case they've received more services for the children involved than the districts were offering, Shepard says.

The team is an unlikely one -- with Shepard from Barker and Barr from Springville. But both have had their disagreements about how their home districts handled their own children's special-education needs through the years. In Shephard's case -- the most public -- she was convicted of trespassing after a dispute with a counselor over her son's education.

They both started helping other families in special-education disputes, even founding their own groups, before they met and decided to work together.

Now, through FACES, Barr and Shepard have worked with more than 150 families in 40 school districts across Western New York.

Most of the situations don't involve litigation. Instead, the women go to Committee on Special Education meetings with parents or make calls on behalf of children.

The women say their strategy is simple: They ask that children receive what they are entitled to by law. The rulings, Barr said, essentially gave the parents the educational programs they had originally requested for their children.

"We want to hold them accountable," said Barr. "That the children get the services that they're entitled to, and that I pay for as a taxpayer. And (hearings) happen to be the only way we can do this at this point."

Their efforts have earned undying loyalty from the families whose cases they've accepted.

"When we walk in the school, they listen to her," said Denise Bouchard of Gowanda, the mother of two boys with autism. "They value the parent, where before they were just nothing to them. I do not go to any (special-education) meeting without Sheila by me."

But the women have earned the enmity of school officials, who accuse them of pushing up school taxes in pursuit of their cause.

"This is my 17th year as a superintendent, and I didn't have a single hearing until I came here," said Springville Superintendent Thomas Markle, who has headed the district since 1997.

"I'm convinced I have some advocates who have shouldered the flag, if you would, to pursue their agenda. I'm very concerned the system is giving these particular advocates a bully pulpit, and they're exerting considerable influence on a couple of districts in Western New York. They'd love it to be the cause celebre so they can gain notoriety."

Schad said the hearings allow the advocates to put an unfair burden on school districts.

"The rise in due process hearings is exclusively due to parents who file such requests and the advocates and attorneys who represent them," Schad said. "School districts have no control over these filings. Each hearing request triggers very time-consuming burdens on public school professionals and heavy financial burdens on public school budgets."

Districts pay for the hearings and, if they lose, often have to pay for the family's attorney fees as well. A single case easily can exceed $100,000, and Springville has had many.

Part of the problem may be the system, said Andrew Freedman, an attorney with Norton, Radin, Hoover & Freedman who represents several schools in Western New York and occasionally represents families in other districts.

Supreme Court rulings have shown districts have to supply an "appropriate" education, not an "optimal" education, Freedman said.

"What parent doesn't want the best for their child?" Freedman said. "That automatically sets up an adversarial relationship with parents."

Here is how the system works: A school district's Committee on Special Education must devise an individual educational plan for each student under its umbrella. If the committee and parents can't agree on a plan, then the case is taken to a due process hearing with an impartial hearing officer.

Schad contends the system needs to be reformed by establishing "checks and balances to control and hold accountable those very few individuals who abuse the process" and ensure "public education dollars, intended for regular and special-education students, are applied towards actually educating those students and not spent on due process hearings, related litigation and settlements with misdirected, and sometimes very hostile, litigants."

In the hearings, it isn't necessary to be an attorney to plead a case to the hearing officer, although lawyers usually are involved. That's when legal bills begin to pile up.

Barr and Shepard are believed to be among the few nonlawyers to try the cases.

They started handling cases for free because few attorneys were available -- or affordable. Since they started working with Cuddy, they have worked on hearings with him.

Cuddy is a newcomer to the field, going into education law after he represented one of Shepard's clients last year. He's a rarity, one of a small corps of education lawyers.

Taking a case to a hearing is tremendously expensive. Shepherd says attorney fees in a case involving her own children in Barker have exceeded $100,000.

"I find it surprising there aren't more lawyers doing it because of the need," Cuddy said. "Since I started, I can't believe the volume of work that's available. But I think part of the problem is that districts have played such hardball it's discouraged some lawyers from playing on the side of the parents."

"The districts" can be read to mean Hodgson Russ because of the number of districts they represent. Barr and Shepard contend Hodgson Russ' Schad would rather litigate than negotiate.

"I believe what he says to the districts is, 'You can't let this parent have this service or have that because then everyone will want it, and you'll set precedents,' " Barr said. "Then the litigation costs more than the service would have. The only person that is benefiting financially is the attorney."

Schad declined to respond on that issue.

Barr and Shepard, meanwhile, say the bottom line isn't the dollar, but the children's education.

"If they work with the parent and do what they need to do," said Barr, "the litigation goes away."

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