The Special Education Battlefield
by Andrew Cuddy

The Ethics of Advocating for a Student with a Disability
Advocating for a student with a disability, whether you are an attorney or a lay advocate, sometimes calls for difficult decisions to be made. In most cases, the parent or guardian of the child retains the attorney or lay advocate, although there are rare circumstances that might call for the attorney representing the child directly. In the special education arena, the parents of the child with the disability almost always retain the attorney, which means that the parent or parents are the client(s). The child is not the client. Yet, while the parent is the client, the educational rights of the student are the interests that are to be advanced. There are times when the interests of the child and the interests of the parent conflict. Lay advocates and attorneys must realize when those interests conflict, as no professional would desire to cause injury or do disservice to a child because the parent/client was pursuing an interest at the expense of the child. In those situations, it is important for the lay advocate or attorney to provide appropriate guidance to the parent so that the child’s needs are the focus of the advocacy effort. However, when a parent is adamant about pursuing an agenda which is not in the best interest of that child, ethically, it is time for the relationship with that parent to be terminated.

 Ethical conflicts of this nature are not always easy to resolve. Every case is unique. An example of a common ethical conflict revolves around the Òleast restrictive environmentÓ element of a child’s program. A child with a disability is required to be educated alongside his disabled peers to the maximum extent appropriate. There are parents who are advocating for less restrictive environments for their children while at the same time there are parents who are advocating for more restrictive learning environments for their children. Many attorneys will only take special education cases where the family is seeking a less restrictive environment for their child. Some attorneys do this because they believe that children should be moving from more restrictive to less restrictive environments as time goes on and as the law suggests. They believe that movement from restrictive settings to less restrictive settings advances the integration of those with disabilities. Other attorneys recognize that not all children can be successful in a less restrictive environment and may need more structure and support. Each case is analyzed given its unique circumstances. After such an analysis, the advocate or attorney, due to their personal beliefs regarding the best interest of the child and their prior experience with similar cases, may feel that the parent’s desires are not in the child’s best interest. In those instances, the attorney or advocate should resolve this ethical conflict or terminate the relationship with the client. Parents must recognize that the professional lay advocate or attorney has an ethical obligation to both the client and the student, and should that professional see those obligations in conflict, continued representation is unethical if the conflict cannot be resolved.