Thursday, December 13, 2007

Dispute Resolution: When Parents and School District Disagree

Some of the work I do in special education law focuses on dispute resolution. Special ed law is new law. Lawyers generally consider anything that came over on the boat from England to be old law; everything else is new. Laws that came into existence in the 1970's are brand new. Lawyers are more comfortable with old law like contracts and property, where there is often a settled "hornbook" answer, and they can advise their clients with relative certainty. So many lawyers are very uncomfortable with special ed issues.

To make matters worse, the procedural rules are strange to seasoned attorneys. In most areas of the law, the aggrieved party must pick a forum. In special ed, however, it is possible for an aggrieved party to pursue four different dispute resolution mechanisms- and this is before going to court. Needless to say, this is very frustrating to lawyers who dislike ambiguity.

In special ed law, the party who disagrees, usually but not always the parent, has four options which may or may not be used in combination. States must make mediation available for such disputes. Since the 2004 amendments, mediation must be available at any point in the process. My view is that mediation is better suited to repairing the long-term relationship of the parties than the other options if the state properly trains, supports and compensates the mediators. The second option is a state complaint in which any entity (including an advocacy group or an out of state non-profit or a parent) can allege a violation of the Act. The state department of education personnel investigate the claim. These procedures vary widely and the quality of the investigations also varies. If a violation is found, the state may impose corrective actions, which now include the possibility of compensatory ed and reimbursement.

The third option is a due process hearing. This is an administrative hearing which closely resembles a trial in court, except that the rules of evidence are more relaxed and there is no jury. A due process hearing officer (it could be me) presides over the hearing, determines procedures, and eventually issues a decision. Encompassed within the due process hearing is the fourth option- the resolution session. When parents file a due process complaint, the school district must convene a resolution meeting within 15 days unless the parties waive the meeting in writing or agree to mediation instead. If the parties settle the dispute and sign an agreement, the agreement is binding except that each party may rescind the agreement within three business days. If the matter does not settle within 30 days, the case may proceed to hearing. As readers of this blog know, I have certain issues with the resolution session. So far, however, resolution sessions are reducing the number of hearings.

Both state complaint rulings and due process decisions may be appealed to federal or state court. Most courts require parties to exhaust their administrative remedies by pursuing a due process hearing before filing a complaint in court, subject to certain exceptions.

For more information on dispute resolution in special education see the CADRE website which is listed as Special Education - Dispute Resolution under helpful links on the left side of the blog.

1 comment:

  1. Jim, do you have stats on the reduced number of due process hearings since resolution sessions were put in place or is it just your sense and experience? I sensed the same thing too, but I have not seen numbers yet. What is your feeling on the lawyer issue with those hearings? Are any parents bringing lawyers with them to those and how are schools dealing with the no lawyer requirement?