I recently had some wonderful clients who had signed what I considered to be a terribly one-sided settlement agreement with a local Southern California school district. Seeking to obtain rights for their child after the fact, we found that the agreement handcuffed them in every direction and precluded them from being able to negotiate any changes for their child. At the time, my client told me that based on her research, school districts were engaging in some unfair practices with parents, all designed to deprive them of the rights provided them by IDEA, federal, and state law. Since that time I have been looking more carefully at how districts use settlement agreements and other waiver of rights, and I have come to see how correct her observation is.
Typically, settlement agreements are a sort of exception to how special education matters are settled. They are used generally to avoid the expense to both parties of a due process hearing and are essentially a contract between the two parties as to what services will be provided and what rights to further disagreements over those services exist. The important piece to understand is that once a settlement agreement is signed, the parent and district have now left the land of IDEA and entered the lands of contract law. Having left IDEA, which was designed to assist disabled children and their parents, an aggrieved parent is now left with only contract remedies, and significantly, absent good counsel, the parent finds that the agreement they have signed significantly limits the claims they can raise and the remedies available to them.
A California Watch article concerning a lawsuit against Riverside Unified School District (RUSD) points to one egregious example of how districts are literally forcing parents to sign agreements which serve to deprive them of important rights. Please read the full article, but here in a nutshell is what this district has been doing. When involved with unrepresented parents, meaning parents without legal representation, the district has been presenting them with settlement agreements that are presented as take it or lose it alternatives. The parents, lacking legal counsel, are met with an official looking agreement drafted in legal speak that is dense and difficult to decipher. In the cases reported by California Watch, the parents were both in desperate circumstances and willing to agree to almost anything to get their children certain services they felt were vital. In one instance, the parent was not even a native English speaker and thus doubly handicapped in trying to understand the contract agreement with which she had been presented.
Both of the parents signed the agreement but are now arguing that these agreements should be voided because the district has a practice of utilizing settlement agreements in ways in which they are not intended and in a manner designed to deprive them of their rights under the law. It is important to note that settlement agreements are ofter preceded by the term “negotiated.” This important terms points to the major legal reasoning behind this lawsuit; a unilaterally created and drafted settlement agreement is not a negotiated settlement agreement to which both parties possessed a voice in its contents and meanings.
The moral of this story is to be very wary of settlement agreements. So what is my advice for parents being offered a settlement agreement?
- NEVER sign a settlement agreement without legal counsel. Just as with all contracts provided by a producer, these contracts are all designed to deprive you of important legal rights that the law grants you but that the producer of the service seeks to avoid. It is absolutely vital that you understand each provision of the agreement and why it was included. Keep in mind, the cost of having such an agreement reviewed is not great but can save years of future regret about signing an agreement which deprived your child of the education to which they had a right.
- Be suspicious of a settlement agreement that prospectively limits your rights. What I mean by this is, I caution my clients when entering into such an agreement not to agree to future limitation of IEP meetings, the right to due process, or other such items because the truth is that both children and situations change. When change occurs, parents want to have the full range of options and actions provided under IDEA.
- Look especially critically at a unilateral produced settlement agreement. The very language of the term “settlement agreement” implies that it is something produced collaboratively to reflect mutual agreement produced through conversation and negotiation. If a district just plunks one down in front of you without negotiating its contents, this is a huge red flag that something untoward is happening.
If you have been presented with a proposed settlement agreement and are unsure of what is being offered, please contact my office to arrange for a consultation.
Gregory Branch is a licensed California attorney and a credentialed California teacher and school administrator. His solo practice focuses on educational issues in Orange, Riverside and Los Angeles counties. Prior to becoming an attorney, Gregory taught children in every grade, K-12, served as an assistant principal, and a principal. He and his wonderful wife, a licensed Marriage Family Therapist and school counselor, are raising a middle school-age daughter. You can reach Gregory for questions/comments by phone at (714) 856-1166 firstname.lastname@example.org or his website, www.edrightsadvocate.com.