Sunday, June 30, 2013

"More than conquerors"

It's a well-known verse, that we are more than conquerors through him that loved us.  I think I've seen more about this in a major fight with a local school district.

I was dragged into a consolidated due process case a cople of months ago - the district filed and the student counterfiled and then moved to consolidate.  As far as I was concerned it was a nasty mess.  The advocate handling the case got sick, so I took on some motion work - getting some invalid subpoenas quashed and then some sharp back and forth over a continuance, which eventually led to a prehearing conference June 10 with the hearing set for four days the following Monday the 17th.

The judge quashed their subpoenas duces tecum again in the prehearing conference, but we lost everything else.  We weren't allowed to amend our complaint, which would have effectively continued the case, as of course everyone realized.  And although we really had good cause for our continuance - unavailability of trial counsel due to illness, and unavailability of two essential district witnesses - she blew that off too.  So we were headed for a hearing that we were in no shape to contest.

So after the prehearing conference, we withdrew our own case and revoked consent to all special education services.  Because the district is forbidden to use due process procedures to impose special ed in the face of a general revocation, we also moved to dismiss their case.  We went back and forth, but this too was denied, so we had to show up Monday. 

Befoire we got started, I did move for a more definte statement of what relief the district was looking for, and they did have to state that they were indeed looking for an order that they could implement the IEP they were defending in the event that we put the kid back in sped.  At that point, the judge said that wasn't going to happen - all that was at issue was whether the IEP was OK back when. 

At that point it was over.  We said that in that case we didn't want to contest any of their claims, and so if they kept litigating it was for an improper purpose - to harass and run up the tab.  The judge said she would let them put on their first witness until lunch and gave us a couple of hours to work it out at lunch time.  So after some discussion, we signed off that we would waive claims under IDEA and the Cal Ed Code on the development of the IEP, any denial of FAPE due to failure to produce some records, and any denial of FAPE for holding a meeting late, and the judge dismissed the case.

So we were out of there by afternoon and had to give them basically nothing, and with several powerful lines of attack intact and without the hearing to deal with anymore.  In truth, all of the ALJs rulings, which mostly went against us, were perfectly reasonable, except that she really did mug us on our continuance.

But here's the thing.  We wound up better off losing that continuance motion than if we hadn't been forced to pull the kid out of sped and show up on the 17th.  We would have been worse off if we had prevailed.  The district has no moves now, if they want to fight, and we have several.  Losing left us better off than if we had won.  In fact, this is the second time this has happened with the same judge.  We didn't get the win, but it looks like we're again going to get what we came for, and that's what counts.

You can "lose" and be more than a conqueror.  Victory is an idol.  


Anonymous Anonymous said...

thank you Peter. I believe I get it. Encouraging words.

7/02/2013 3:19 AM  

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