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Asking Hard Questions

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To the families that lawyers Matthew Bogin and Michael Eig represent, they are saviors from a sometimes intransigent school bureaucracy.

To the school systems they challenge, they are costly interlopers turning a profit, sometimes at the taxpayers' expense.

Bogin and Eig represent a relatively small but growing number of private lawyers specializing in special-education law.

For decades, public-interest lawyers have worked for nonprofit groups on behalf of families with disabled children. But Bogin and Eig are a new breed. Nobody is sure exactly how many lawyers work exclusively on special-education cases, but observers put the figure around 100 nationwide.

Under the Individuals with Disabilities Education Act--a sweep~ing 1975 federal law that requires schools to provide disabled students with a "free, appropriate public education"--parents must be included in developing their child's education program.

When school officials and parents cannot agree, a due-process system protects the parents' right to appeal a school's decision to a hearing officer and, eventually, to the courts. What's more, a 1986 amendment to the I.D.E.A. allows courts to make schools pay families' legal fees when the parents prevail in a dispute.

Bogin and Eig have a reputation for being good at what they do. That's what has brought a Montgomery County, Md., couple to their office this April afternoon. That and the couple's 3rd-grade son, who has an above-average I.Q. but suffers from attention-deficit disorder. Apparently, he's not doing well in his current school program. And his parents want to know what their options are.

"They really don't have a place to fit him in," his mother says. "We just want him in a class with just a few kids and a lot of teachers," his father adds.

Eig's advice: File for a due-process hearing. "You need to get aggressive very quickly. You've got to get the system's attention as quickly as possible," he says, thumbing through folders full of evaluations, test scores, and letters. Eig contends that the school has violated the law by using out-of-date evaluations and failing to provide services spelled out in the boy's individualized education program--plans required for every special-education student.

"Filing imposes federal guidelines on them," Eig explains. "You get all the protections, and it gives you leverage because the system has to look at legal costs, and that's expensive. That, quite frankly, gets their serious attention like little else does."

He encourages the couple to apply to a few area private schools that specialize in serving children with learning disabilities. The yearly tuition at such schools climbs into the $20,000 range. But if the firm's history is a valid predictor, Eig may be able to successfully argue that the public schools are not providing an appropriate education and succeed in having Montgomery County foot the tuition bill at one of the private schools.

After the meeting, the boy's mother admits that she's unsure about pursuing the case. "I am very much dedicated to the public schools," she says. "I'm not an aggressive person; this is not an easy thing to do. But the alternative I see is the destruction of my son."

Eig has about 100 families in his pipeline now. Some are poor. Others are wealthy. He estimates that only three or four will wind up in court. Between a quarter and a third will go to an administrative hearing. Most of the disputes will be settled before they ever get that far.

Carving Out a Niche

Bogin and Eig have come a long way since Dec. 1, 1975--the day they opened a cramped office on the outskirts of downtown Washington. Today, their offices share a busy street in the heart of the city with embassies, national associations, and, of course, other law firms. When they first set up shop, they say, they were the only ones doing special-education law in the region. Today, they have a handful of competitors in the metropolitan area. Still, they add, the demand for legal help has totally outstripped the supply of qualified lawyers.

The two met at Georgetown University law school, where they worked at the school's law clinic on juvenile-justice and special-education cases. Eig is a former teacher. Both are fathers. Both know that many local school officials view them as rivals.

"There are a lot of well-intentioned people in the schools who just aren't doing the right thing," Bogin says.

"Sometimes, schools just shoot themselves in the foot," Eig adds. "They're constantly putting out fires instead of developing programs."

Of course, Bogin and Eig help fuel those flames. Last year, the firm represented about 80 percent of the families who had hired lawyers in special-education cases in the Montgomery County public schools.

In January, a Montgomery County task force estimated that the schools spent close to $1.4 million in special-education legal fees last year. The costs were largely avoidable, the group's report said, because they were often "a result of procedural errors in the handling of special-education cases by [the district's] own employees." Typical oversights included missed state and federal deadlines for everything from evaluating a student for special education to providing the necessary services.

Such errors provide a less than stable legal leg for the schools to stand on when disputes do arise. So, the report maintains, "they settle almost all cases before trial, out of a certainty they will lose for procedural reasons."

But it is important to note that the nation's capital is a hotbed of special-education legal action, observers say. The District of Columbia--along with New York, Pennsylvania, Illinois, and New Hampshire--ranks among the country's most litigious states, according to a recent analysis from L.R.P. Publications, a Horsham, Pa.-based company that publishes disability-related publications.

Indeed, the vast majority of court cases originate in states across the Northeast--the same region that claims the most private schools for children with disabilities. The number of administrative hearings held, on the other hand, varies wildly among states, experts say.

Groups like the National School Boards Association say schools often don't have a chance of winning cases. But L.R.P.'s analysis of state and federal court special-education decisions handed down from 1978 to 1995 shows that school districts actually come out slightly ahead, winning 54 percent of the cases.

Even so, when faced with even the threat of a legal battle, many schools will capitulate to parent demands, which can bring costs in the form of services, says Gwendolyn Gregory, the N.S.B.A's deputy general counsel. "It's expensive to fight," she says. "So they often give in."

Charles Weatherly is the foil to lawyers like Bogin and Eig. From his Atlanta law office, he works exclusively on special-education issues--from the school districts' point of view. When he started a private practice three years ago, he had only a handful of districts on his client list. Today, he represents some 25 districts across the Southeast.

The rise in legal activity around special education has led many observers to call for more states to offer mediation as a first option to keep legal costs down for both sides.

"The need for legal assistance in this area has grown by leaps and bounds," Gregory says, "and it's not likely to stop anytime soon."

In the meantime, Bogin and Eig emphasize that some of special education's adversarial nature is part and parcel of the system.

"The law has conflict written into it," Eig says. "And horror of horrors, schools are forced to listen to 'overanxious' parents--and their lawyers."

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