0:00:05.4 VB: Welcome to the Inclusive Education Project. I'm Vickie Brett.

0:00:10.1 AS: I'm Amanda Selogie. We're two civil rights lawyers on a mission to change the conversation about education, civil rights, and modern activism.

0:00:20.7 VB: Each week we're gonna explore new topics, which are going to educate and empower others.

0:00:26.9 AS: And give them a platform to enact change in education and level the playing field. Welcome back friends.

0:00:34.6 VB: Hi. Hi.

0:00:36.0 AS: We are really excited today to dive a little bit deeper into a little bit of a recent case, but also talk bigger picture. Some of the things that we talk all the time on the podcast is this bigger picture question of really getting more people to just be aware about what's going on with our taxpayer dollars, what's going on in our education system, and how we can get more parents to be educated and advocate for their rights and the general public as well. So we're really excited to have Tim on the podcast. Tim, welcome to the podcast.

0:01:10.0 TM: Thanks for having me. It's a pleasure to be here.

0:01:12.5 AS: So can you tell our listeners a little bit about yourself, your background, and then we'll get into it?

0:01:19.3 TM: Absolutely. I've been in practice for a little over 23 years, and before that I was a lay advocate working through a special education legal clinic at the Pepperdine Law School and had an opportunity to meet a lot of families in my early career that needed support advocating for children with disabilities. I have a younger brother with special needs and experienced some struggles. He's five years younger. And so I had a parent, my mother mostly, who was really trying to find the best ways to provide support for him. So I had firsthand experience spending my afternoons mostly at speech therapy, waiting for him to finish up doing homework and tutoring, things like that. So I had exposure there, didn't understand or know anything about the legal process at age 10, 11, 12, and so on. But certainly understood that he needed some support.

0:02:09.1 TM: And so that was my initial exposure to special education and the process. And then when I got into law school, realized that there were opportunities to support families. There was a clinical program that was run by a good friend and mentor of mine, Dr. Meredith Goetz, and she ran the special education clinic along with another attorney, Nora Asahara, also a very nice lady. And they done a really good job of providing support for families through a contract that the Pepperdine Legal Clinic at the time had with the Lanterman Regional Center. So I went through that clinical program, received some training, and then shortly after law school had started working for another firm doing this type of law, and then eventually worked on my own as an independent attorney with some partners. And then I've been at Adams and Associates since about 2009. So I've exclusively done special education. We do some work... Most of our work is done on claims with public school districts and sometimes occasionally public charters. And then we also have some cases with regional center, and we do a little bit on the conservatorship side, but most of it's advocacy on the special education side with public school districts.

0:03:18.7 AS: And we had a similar mentor. Both Vickie and I were menteed by Meredith Goetz as well. And that's a fun little tidbit. We all go way back. I actually interned for Tim when I was in law school. So we all are kind of interconnected. I mean, this world of special education law is so small and interconnected, I guess, because there's not enough of us that do what we do. So it's definitely full circle. We're excited to have you on today to kind of talk about what came to our attention a couple of months ago, your case, Irvine Unified School District v. Landers and Gagliano. And were first found out you sent over a Wall Street Journal article that had come out, and there's been a lot of discussions about when big cases come down in special education, having those cases be talked about in the media. There's always the central question of the money side of it. And we thought it was really important to have you on to kind of talk about this bigger picture question of the money. And we've talked about this on the podcast before, that the money side of special education is what people I don't think understand as much about how much money is spent on litigation rather than just educating kids in the first place.

0:04:31.3 TM: Yeah. And this case highlighted that significantly more money was spent on the district side in litigation. After public records requests by the Wall Street Journal, it was revealed that their law firm, the district's law firm, had spent more than 1. I think it was $1.13 million. That's a lot of money. But at the very beginning, this case could have settled for less than $40,000. So we were a bit perplexed that it continued for as long as it did at different levels. Of course, our trial court is the Office of Administrative Hearings. Having gone through that process, that administrative law judge had found that my clients had prevailed on the gravamen of their case. And that was then appealed by the district to the District Court, District Court, then remanded it back to, OAH, and a couple of narrow questions.

0:05:23.5 TM: We briefed those and prevailed on those. They then appealed it back to the District Court. District Court then affirms and they appeal it to the Ninth Circuit. We have some other cases that, related to that same family that've gone on with Irvine sort of on the side. They eventually had other cases even after our firm at the administrative office, administrative hearings level with other counsel. And their cases really continue, which is also very surprising. So that 1.13 million, who knows how high that number is, having continuing to litigate cases. And there are more cases with that family and other counsel in the Ninth Circuit as we speak.

0:06:00.6 VB: And this is not something new. I mean, when I first became an attorney almost 13, 14 years ago, I remember a case coming or an article coming out from Northern California and attorney's fees for an opposing counsel. I think at that time, which 15 years ago, $600,000 was a lot. And just to kind of see how it has doubled essentially, with the article, the Wall Street Journal. And I think that's what's interesting that I remember it being just kind of like a local newspaper from Northern California, but this was the Wall Street Journal. And I think they wanted to kind of, like you had said, they really got curious of like, wait, this is public money from the school district that's paying their attorneys that's like trying to do this. And that's really what, I don't think a lot of people, maybe they don't think of it that way, but why we were kind of intrigued to really have this deeper conversation with you about the landscape and what we have also seen in the years that we've been doing special ed and how it has changed and how some people might fear that, oh, well the public shouldn't know that all this money is being spent they might wanna take education away. And I think that's a little bit fearmongering [laughter] I don't know about your thoughts on that.

0:07:24.0 AS: Well, there's the fear that the public sees how much money is being spent on one child. And it's like, well, why are these parents like it almost... There is always, and we've seen this in special education too, like when we talk to the general people, our friends and family that like, well, why should we be spending so much of our taxpayer dollars on this one child? What are these parents doing? Should they be doing it? Should we be giving all this money? And it really bottles down to the central question of, these children have a right to a free and public education. They have a right to have equal treatment and opportunities for an education. And it's not the parents' fault that these cases are going and spending millions of dollars in attorney's fees. Because most of the time, as you explained, a lot of the appeals are by the school district and their attorneys are charging. I think I had seen in one article that one of the hourly rates of one of the attorneys was $1,300 an hour.

0:08:16.6 TM: Yeah, it was over $1,300 for this law firm, for this particular family and that was surprising. I don't think I've seen any parent attorney charge that much money, and.

0:08:30.5 VB: Absolutely not.

0:08:30.5 TM: If it creeps above $550, there's a lot of protest by district council that.

0:08:34.2 AS: Absolutely.

0:08:35.8 TM: That's excessive. But yeah, we've got district council billing well in excess of that. So that was surprising. I don't think the primary attorney was billing that much on the case, but it did indicate that they could charge that much. So in any event, it was wasteful spending. And I think that was what was highlighted, at least in the article and also in my discussions with the reporter I think she did a wonderful job of really being very balanced and very objective about the circumstances. And from my understanding, she gave the district an opportunity to provide some explanation as well. I'm not sure how much they really gave her, the comments were pretty generic from what I saw, like I said, it didn't end at this case. This case continues to go on. And I am in touch with the family, and I do hear from their counsel who continues to defend appeals by this school district that are also in the Ninth Circuit.

0:09:36.3 AS: Oh, I was gonna say, what I liked about the article was that it didn't just highlight the money side, but really the struggles that parents face that I don't think the general public understands how hard a lot of these parents our clients have to fight to even get sometimes the smallest things. I mean, in many of these cases, what we're asking for when we file for due process is so small in the grand scheme of things. And it's things that, like if you were to explain that to an average person, they would say, well, why isn't the school district just giving that if that's appropriate for that kid? Of course we have these examples of kids who need intensive intervention and private schooling or specialized schooling that costs $40,000, which of course is a drop in the bucket compared to 1.13 million in attorney's fees.

0:10:23.2 AS: But when we think about how hard these parents have to fight, and that's the piece, I think that having it be in the Wall Street Journal versus just a local paper is important. Because when we talk to people about what we do that don't know anything about it, and I'm sure you've experienced this, there's like either one of two responses is, oh, that's great. You help kids with disabilities, or Oh, you sue the schools. Like that's... Why are you suing the schools? And it's because people don't understand this battle, this bigger problem than just what attorneys are charging.

0:10:56.9 TM: Yeah. If you wanna get the general public's impression, I think what I've found is the best way to understand your average person and their perception of this process is to read Reddit posts. If you look at Reddit posts, you're gonna get the gamut of how people are very upset. How dare the parent ask for anything? It's uncalled for. It's unheard of to parents have all these rights and districts are stepping on their rights, so you're gonna get across the board a lot of different comments. But I'd say the general public in my experience it doesn't really have a good understanding of how the process works and who's really overseeing.

0:11:36.2 TM: And in fact, I think in my experience, and this is after having done about eight years of politics behind the scenes, working on various elections, local elections in Orange County on the education and the school board side, I did see that a lot of families really didn't know who their representatives were, who was voting on expenditures. In fact, even school board members weren't cognizant of what they were agreeing to. They were almost, you know, from my perception, and this is an opinion, but being manipulated in some cases by administration and showing up to a board meeting given three choices when there're in fact 10 choices.

0:12:18.7 AS: Wow.

0:12:18.8 TM: They're narrowing it down to the three that may favor the administration the most. And put them in the best light. And then ultimately they're having to make these choices and defend decisions that they make. And then sometimes they're criticized for decisions that they've made and money that they've spent. But they didn't really take the time to dig into it. They're relying on administration to tell them what to do, how to do it. Sort of let around by the nose sometimes.

0:12:44.6 VB: How often are you seeing districts appeal decisions? Are you seeing it more now than you did at the beginning of your career?

0:12:54.5 TM: I am. I've seen quite a few appeals and we've had two positions. Well, I've seen several in the Ninth Circuit, and I've seen more than I've ever have. And this case, what was interesting about this one is this wasn't going to change the law in any respect. This was a very facts-based case that didn't involve any sort of decision that would be precedent from our perspective in the Ninth Circuit wouldn't be ripe for... I mean, I wouldn't see that the US Supreme Court would ever take on something like this if it... And certainly the District decided not to further pursue any appeals beyond the Ninth Circuit. But that's what was so surprising is we weren't... The district really wasn't trying to change the law. I think they were just trying to be right.

0:13:43.0 AS: Interesting.

0:13:44.8 TM: But how much money do you spend taxpayer money just to be right. And so what I saw with this district in particular, and this is characteristic of what I've seen in the past, and it may be just the leadership in the district currently, but a lot of arrogance. And we're not gonna put up with this family telling us what to do and how to do it, and we're gonna eventually win and perhaps, and we can outspend you. And that's kind of the attitude that I saw because why would you throw this much money? And like I said, this is just one of the several cases in appeals this district has made against this family or done against this family. And 1.13 million was just one of these and of ongoing appeals. So I don't know how far they're into it. I can't even venture a guess, but I don't think it would be unusual. I think a fair number may be above 2 million in fees, again, still on a single child in a single ongoing dispute.

0:14:45.9 AS: One child. Right.

0:14:47.8 TM: Right. Ongoing dispute over multiple school years and multiple IEPs. And let's just say that that private program that the student required cost $40,000 to $50,000 a year, it still isn't more than they've already spent on lawyers' fees. Over the course of that child's entire school career.

0:15:06.5 VB: Yeah. That's just numbers, right. That's just looking at the numbers.

0:15:08.7 TM: If you do the math, we're paying for a lot of kids to go to private schools just with that number [0:15:16.4] ____.

0:15:16.4 AS: 100%

0:15:21.1 VB: Yeah. Well, it's so much of a scare tactic. They don't want this parent to tell other parents and other parents to get the... In their mind, the more we say yes, the more parents are gonna ask for it. But it's not even the right argument. 'cause of course, parents talk to each other and word of mouth does spread in terms of like what your rights are and yeah, there's the outlier parents who may ask for more than what their kid really needs, but the majority of parents are only asking for what their kid needs, not all these excess things. So I don't even see it as a valid argument for school districts to make, but I know that it's there, it's part of the rationale, I think.

0:15:54.7 TM: Yeah. And so this is... The approach I think in this case was win at all costs, and it's sort of the way I see it, sort of in the context and of maybe a war or a battle situation. If you're going to take out an insurgent in a single building in a single city, it's like dropping a nuclear bomb on the entire city to take out one person. Let's destroy the entire city. It's overkill and unnecessary and wasteful and tragic from my perspective.

0:16:26.7 AS: So there's been some discussions in the community about whether this has something to do with all of the attempts across the nation to more privatized education, so school choice, school vouchers, that sort of thing. And that there's this, we know that there is a movement of people and legislators, politicians that are trying to make school choice and vouchers more of a thing and kind of dismantle the education system. It's been something that certain politicians have tried to say. Do you think that this is an underlying underly component of what some of these school districts are doing in fighting these cases? Do you think it's something that families or even administrators or educators should be wary about?

0:17:13.2 TM: Well in my experience, our state in particular is not super friendly to anything that's not a public school district. Even public charters. So, there's a lot of control. Public employee unions are very strong in our state, have a lot of influence over our state legislature and our governor. So anything that jeopardizes the control and the power there's going to be pushback. So whether you're a school district, you're looking for a private school, or you're looking for school choice. And that could be an independent public charter, which I've always been in favor of independent public charters. I think that competition is important if we.

0:17:51.0 TM: I often say, I mean, speaking with families, that if we had one company that offered mobile phone service, we would have terrible service and would be exorbitantly expensive. We need competition to promote a better quality of service and better pricing. Right. I think that's important. Same thing works for public education. If there isn't any competition, you don't have that private school, you don't have that public charter to compete even with the public system, then there is no incentive for the public system to improve. So I think that's, again, there's a lot... We can get into a lot of detail and my perspective on how the politics plays into this, but I think there's a lot of collective bargaining issues and public employee union issues that play into the decisions that are made to push back against families.

0:18:40.6 VB: And going back to something you had said earlier in like the district's, potentially, what their decision-making process included. It felt very personal. Let's just win at all costs, 'cause we can spend the money. What is something that you take into consideration when you're kinda analyzing when and where you're gonna appeal decisions because in this particular case, they were the ones that were appealing. But I wonder it would be helpful for parents at least to kind of hear, because more often than not, and I should have said this at the top of the podcast. Like 90% of cases, if not more, I forget what the statistic from OAH was a couple of years ago, like these cases settle [laughter] This is weird talking.

0:19:31.0 TM: I think it's upwards of 95%.

0:19:32.5 VB: 95, thank you. Yeah.

0:19:33.1 TM: So the vast majority are gonna settle. That's correct.

0:19:35.1 VB: Yeah, the vast majority are gonna settle. We are talking to Tim about a very specific school district, and this is not across the board, but when having that information in your back pocket and then you realizing that you've taken something to hearing and you need to appeal it, what are some of the factors that you take into consideration?

0:19:54.5 TM: Well, we certainly look at the merits of the case, we wouldn't take a case to hearing even at the office Ministry of hearings level if we didn't feel like we had good evidence, but there are some things that may have been revealed because in our context and Vicky, you and Amanda know this, when you go to due process, we don't have the benefit like other areas of law of discovery in advance. Right?

0:20:15.7 VB: Right.

0:20:17.3 TM: So the first time we may get to question the witness is actually at the trial. And things would come out that we may not have known, evidence may be revealed, so we're gonna have to weigh all of that evidence after we finish that due process here and to find out, are these issues all worth appeal if we didn't win any of them, if we didn't win some of them are those issues worth the appeal, do we have enough evidence to support it? And there's a lot of factors to consider. It is certainly the cost of having to continue to litigate a case over the course of many years, now that our fees in particular, this is not a fee that my clients had to pay, we defer a lot of these fees, I mean your family.

0:20:58.3 TM: Most families, even families with means, certainly cannot afford to pay hundreds of thousands of dollars to defend appeals over the course of many years, so we're in a position as a law firm to have to assess the affordability to pursue these types of cases or continue to defend them, but I don't really see much of a choice if we're playing defense and we're winning, we're not gonna stop, so you make it happen, you figure out a way. And certainly, we spend a lot of time, a lot of pro bono time coming up with solutions and working with our clients, there's a lot that we don't get paid for, our goal is, of course, to ensure that this family, our families, our clients are getting the most appropriate education at the very least amount of cost, and that always been our aim and as in all our case was in this one in particular is how do we ensure that this child gets what she really needed and these parents are made whole to the extent that we can get them there. But there are on the number of factors and cost is one of them, the strength of the evidence there, the issues that may be on appeal, but in this case, in particular we were just playing defense.

0:22:09.4 TM: So outside of the trial court piece, we finished that, we want to grab them in, you know how OAH is... They're gonna split your single issue into five different issues, and the CASB sub issues that we didn't really create... So at the end of the day, we only had a few, a handful of issues despite the number of sub-issues that were identified by the ALJ, and that's obviously from their perspective, to make it a little easier for them to decide and to drill down on the evidence as they receive it. But at the end of the day, we did win when several of our issues... And as you know, we don't have to win. It's not a proportionality standard, if we win an issue of significance that material changes the other side's position as to our client, then we're the prevailing party enough that we can pursue collection of returning fees on cases and issues that overlap. And so I think that we were largely successful on our case, and Judge David O. Carter was recognized that in his decision and his decision to is growing on both of our emotions for attorney's fees. But in general, again, just playing defense on this case for kids that we're deciding to appeal, we have to look at the merits, what actually came out affiliate level, the new evidence that we didn't really may not have known existed because we had to go witness before something that was subpoena evidence that came in, emails, whatever.

0:23:44.9 TM: Then they will determine how much where our chances of success are, will do some research, talk to our clients and decide how best to proceed. But I am in fact seeing a lot more appeals by school districts, and we have seen quite a few more at the Night Circuit in the last decade, and I will say that a lot of cases, and there may be some COVID influence coming on, in a lot of cases that involve Compensatory Education and very, very high numbers of Compensatory Education, we had one case in particular where OAH, found that our client was entitled to over 500 hours of Compensatory Education, tutoring hours, that's a lot of, right?

0:24:28.1 VB: Wow that's a lot. Yeah.

0:24:29.6 TM: And that's a COVID-related case, so coming off, we're gonna see... That case is on appeal. District appealed that case, and we're defending. We counter-claim on some things since they had already, so sometimes out we made may as well just counter-claim, the district decided to appeal. So we are gonna see a lot of the COVID-related cases in litigation for years to come. COVID started in 2020. It's now 2024. I think we're gonna be... We could be close to 10 years away from where COVID started before we start to see these cases to window because of the holes in the rebates and all that stuff.

0:25:15.8 VB: And in the meantime, we talk about the other side of the toll that it takes on families of just everything they have to go through in this process while their child is still in school going year to year, and by the time some of these cases are complete, the kid is, in some cases, a very different kid, much older. We see these cases that started out when the kid was in kindergarten and they're in high school, by the time it's done, and I think people don't think about that side when I think that so much money is being spent by school districts and like who should we blame? Whose fault is it? Like we really need to be looking at this bigger picture of, we shouldn't just be thinking about the money.

0:26:03.4 VB: It's like if the kid was being educated in the first place the way they should and these parents are in many cases, parents who have the means to do so are just pulling their kids from the public school district during these procedures so that they can get the services that they need, so that they're not harmed because if years go by and these kids are not getting the education, how much more harm is it gonna be having to wait or having to go through this process and how much a toll it's taken on the family is something that we often tell families when they're very long hall or, I wanna go to trial, I wanna fight this, I want my day. Or, I want blood. And it's like you have to think of all these other factors and it's personal to the family because it impacts them so much, it's not personal to the school district, it's not their money, it's not... They don't care most of the time.

0:26:53.5 TM: And that's what I tell. I do counsel my clients, I do have clients that feel like they really need to go to trial, and that's okay, that's their Right. But I explain is that it's not a pleasant experience for most families, you have to really have all of these often very traumatic things that have happened to your child and to yourselves, and you have to in your question and you're criticized through that questioning. By opposing council often, even judges may be critical. I think there's sometimes an expectation that you're gonna show up and hearing and that the judge is just going to agree with everything that you say, they'll see my side of the story, and I said that's not gonna happen every time.

0:27:34.6 VB: It's like the Matlock moment, the smoking gun [laughter]

0:27:37.1 TM: Right. They may agree with you in part, and they may or they may not, or they could agree with all of it. It happens occasionally, but I said, not very often. There's usually gonna be... They agree on something and they don't agree on some other things, and that may shock you, and so just be prepared that there's gonna be a lot of... This is the fact finding process, and you will be questioned and it will be uncomfortable, it isn't a pleasant experience for many families, they'll say I like doing trials, it's fun for me, it's exciting. I enjoy questioning witnesses, I enjoy the litigation process, but it's not fun for families. So thankfully, we talked about 95% plus the cases they're gonna resolve, but you're less than 5% and we're gonna really have to sit down and talk about the costs, not only financial but emotional cost.

0:28:28.5 VB: Exactly right.

0:28:30.2 TM: This will take on you and your family to have to go to that next step, that trial phase, and then it doesn't... And even if you win, then you may end up like this family that had to continue to defend your win for a number of years, so that's unfortunate. This family was very... Continues to be very resilient. I commend them for how much they put up with with the district and with a good attitude, district was really fighting hard to take this win away from them, and they weren't ultimately successful. So that's the good news, because I think that... Not to sound cliched or, but justice prevailed, I think in this circumstance for my client, that's we see it certainly, I'm sure the district has a different perspective. But regardless, if it's not cost-effective for a district to fight a family, don't do it, because at the end of the day, they're just spending our money, tax payer monitor so much money into a case like that, that's not gonna change the law.

0:29:32.9 VB: Yeah. Leave the ego out of it. Absolutely, Tim if people wanna reach out to you, what's the best way that you can reach out to you?

0:29:42.5 TM: So, we have a website, is a good way to reach out, so californiaspecialedlaw.com. You can also use edattorneys as an E-D A-T-T-O-R-N-E-Y-S.com works as well. That goes to the same website, Facebook. We also have LinkedIn and all the social media platforms. Those are available. But website is a really good way.

0:30:05.2 VB: Yeah, and we'll definitely put that in the show notes, we wanna be mindful of your time and we are so grateful to have you on and have you as a colleague that we can always reach out to. We appreciate you, your time and the work that you do, and listeners, please reach out to Tim if you have any other questions or you can also DM us because we talk to Tim all the time. We will talk to you guys next week. Bye.

0:30:28.5 TM: Thank you.

0:30:29.0 VB: Bye.

0:30:29.2 TM: Appreciate your time, thank you for inviting me.