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Children's Rights Litigation

September 20, 2012

Clauson v. City of Springfield, 848 F. Supp. 2d 63 (D.Mass. 2012)


In Clauson v. City of Springfield, 848 F. Supp. 2d 63 (D.Mass. 2012), an attorney was appointed by a juvenile court to be both a guardian ad litem (GAL) and educational surrogate parent (ESP) for a special-education student in custody of the Department of Children and Families (DCF). The attorney eventually asked for the DCF to appoint an attorney who could file a hearing request before the Bureau of Special Education Appeals (BSEA) regarding the proposed individual education plan (IEP) and also represent the ESP at the hearing. The DCF refused, and the attorney filed the request himself (although apparently his request dealt with issues outside the IEP). He asserted that because the ESP has a right under the Individuals with Disabilities Education Act (IDEA) to be accompanied by an attorney at the hearing, the right obligated someone to pay for counsel as a matter of due process.

The court rejected the argument first as a matter of statutory construction of the IDEA, saying the

[p]laintiff points to no authority—and the court is not aware of any—that a statutory right to be accompanied by counsel at an administrative hearing obligates a state agency to provide a funding mechanism to effectuate that right. Quite to the contrary, courts have reached the opposite conclusion regarding the right to counsel at an administrative hearing.

The court then added, “[The p]laintiff’s argument fares no better on constitutional grounds,” and relied solely on a 1985 case from the same district court about due process only requiring the right to have counsel present. Oddly, the court relied in part on Turner v. Rogers for the statutory holding, as opposed to the due-process one.

The court did not rule on whether a Massachusetts regulation providing for the reimbursement of “reasonable expenses” of ESPs might reach attorney fees, but remanded that question back to the hearing officer instead.

Keywords: litigation, children’s rights, right to counsel, Department of Children and Families

—John Pollock, coordinator, National Coalition for a Civil Right to Counsel

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