Litigation can be an effective way to defend rights when the law is clearly and willfully being violated. Parents who feel their child's needs are not being met, have the right to file an administrative complaint or a lawsuit in court. The specific procedure varies depending on whether a claim is made under IDEA, Section 504, or the Americans with Disabilities Act.
Because it can bring unintended, unwanted consequences, litigation should be considered very carefully, and only after exhausting education and negotiation strategies.
Any party considering litigation needs to carefully weigh the likelihood of negative effects of a court dispute on existing relationships, but litigation can be problematic for other reasons as well. It is often very expensive and time-consuming. It can take several years, which may not make sense when there is a very limited time frame to make a difference for the child in a given school setting.
In addition to time and expense, there is a considerable loss of control of both the process and the outcome when a dispute resolution is brought to court. The rigidities of the court process, often distance may lock participants into actions that would not be freely chosen.
Added to these concerns, the outcome of a court case is always uncertain. A loss could set an unwanted precedent, not only limiting an individual child's opportunity for subsequent claims, but limiting opportunities for others as well. However, even with these potential pitfalls, seeking protection in the courts may be necessary in some cases to ensure that the child receives the education and medical care that he or she deserves.
LITIGATE When Necessary
If the child's needs are not being met, you have the right to file an administrative complaint or a lawsuit in court. After exhausting your other options, seeking protection in the courts may be necessary to ensure that the child receives the education and medical care that he or she deserves.
The procedure you follow will vary depending on whether your claim is under the Individuals with Disabilities Education Act (IDEA), Section 504 of the Rehabilitation Act (Section 504), or the Americans with Disabilities Act (ADA).
- The Office for Civil Rights (OCR) in the U.S. Department of Education enforces Section 504 and ADA in programs and activities that receive assistance from the federal government. Contact the U.S. Office of Civil Rights in your region when negotiation fails to secure the child's rights or adequate care.
- The U.S. Department of Justice (DOJ) enforces ADA in schools and day care centers that do not receive federal funds, except those run by religious institutions. Parents may file a complaint with DOJ or file a lawsuit directly in court.
- The Office of Special Education Programs (OSEP) of the U.S. Department of Education enforces IDEA and protects children whose diabetes make it more difficult for the child to learn. Due process appeals may be initiated through the state education agency.
Diabetes Litigation and Daycare, Camps, and Recreational Programs
The American Diabetes Association has developed resources regarding the rights of children with diabetes to participate in daycare, camps, and recreational programs. Summary agreements between U.S. Department of Justice and daycare providers and camps are available here.