Who Wants to be a (Special Ed) Hearing Officer?

After reading this blog for a while, you might be aching to become a hearing officer yourself. Although I have chronicled some of the trials and tribulations of my fellow hearing officers (for example, I have been at conferences where some people spit on the ground when told that I'm a HO; and I have contended that Rodney Dangerfield is the patron saint of due process HOs- "we don't get no respect"), I nonetheless continue to believe that the hearing officer plays a crucial role in the system of dispute resolution applicable to special ed law. Usually the only "trial" available to the parties is before the hearing officer. Wide discretion is generally available in terms of how to conduct the hearing process. To effectively perform this extremely important job requires a high level of integrity, intelligence, common sense and an ability to maintain an even temper. Most due process hearing officers I have met around the country meet or exceed these high level qualifications.

If you'd like to become a HO, Washington DC is hiring a number of full time and part time due process (i.e., special ed) hearing officers. If anybody is interested in reviewing the Request for Qualifications you should go to
www.ocp.dc.gov
then click on Business Opportunities, and
click on List All Opportunities, there you should search for and click on
Request for Qualifications (RFQ) No.: RFQ DCGD-2008-R-0014. There you can download the RFQ.

The deadline for receipt of applications is 2:00 pm on June 23rd. Good luck to those who would join our unusual, yet important, fraternity.

New Proposed Federal Rregulations: Consent, Lay Advocates

The federal Department of Education has published another Notice of Proposed Rulemaking (or NPRM). These will become federal regulations unless the DOE is persuaded by public comments to make changes. This may sound esoteric, but it is very important in the realm of special education law. Federal regulations have the force and effect of law unless overturned by a court of competent jurisdiction. Moreover, under general principles of administrative law, the commentary surrounding the reasoning for the regs is also entitled to some deference.

The new regs relate to consent and lay representation of parties at due process hearings. There are also changes regarding monitoring and allocation, but I'm only going to discuss the two major topics. The consent regulations are being changed to permit parents whose child is already receiving special education and related services to revoke the consent. In this situation, the school district would no longer be able to invoke the procedural safeguards, eg. mediation or due process hearings, to override the lack of consent. Proposed 34 CFR Sections 300.9 and 300.300.

The lay representation reg also represents a change in the DOE's interpretation of the law. OSEP had previously taken the position that lay advocates may represent parents in due process hearings, including asking questions of witnesses, cross-examination, filing briefs, etc. The Department has now backed off that position. Instead, it repeats the statute to the effect that a parent may be accompanied and advised by an advocate at hearing, but that whether parents have the right to be represented by non-attorneys at due process hearings should be determined under state law. Proposed 34 CFR Section 300.512(a)(1).

The proposed regulations may be found at http://www.ed.gov/legislation/FedRegister/proprule/2007-2/050907a.html

You can, and really should, submit comments on the proposed regulations at http://www.ed.gov/legislation/FedRegister/proprule/2007-2/050907a.html

In the docket ID column on that website select ED-2007-OSERS-131. It is important that all concerned submit comments to the Department concerning the proposed changes. The comment period ends on July 28, 2008. Any comments must be received by that date.

Maybe Not Disability Discrimination

We ran a post last week about disability discrimination involving a school inclusion choir. It is interesting how people watching the same event can see many different things.

We have heard from some folks this week who don't think that there was any discrimination at this event. They tell us that there were two choirs, one for grades 6 to 9 and one for grades 10-12, and that the vest was the uniform for one age group- not the uniform for nondisbaled peers. They also say that one whole choir sat down for the second song, not just the kids with disabilities. Moreover, they assert that many of the kids in both choirs had disabilities that may not be visible, such as LD or hearing impairment, so that it would be impossible to visually identify them.

I'm not sure I understand why one choir had to sit down during a performance, but this explanation would negate any discrimination. If there was no discrimination, I apologize for calling it such. Obviously, if I didn't miss discrimination, I wouldn't feel so bad.

I'd like to investigate this matter further. I'd like to hear from others who were at this event about what they observed. Was there disability discrimination? Maybe a dialogue about what happened at this event and how it is being perceived would be a the beginning of a larger dialogue about the treatment of people with disabilities in this country. The presidential campaign this year has opened dialogues on the issues of race, gender and religion. Maybe we should also think some about disabilities. What are your thoughts on this topic?

Tom F Rides Again

The federal Ninth Circuit Court of Appeals has issued a decision in Forest Grove School District v. T. A., No. 05-35641 (April 28,2008) that holds that a student need not first receive special education services before his parents may be awarded reimbursement for tuition for a unilateral placement. The court could have distingusihed this case as an eligibility case, but NO, instead it chose to align itself with the Second Circuit and its decision in Tom F. There is some very good language in the opinion about the equitable powers of courts, and presumably hearing officers, under the Burlington decision to remedy violations of denial of FAPE. You can follow the reasoning of the Ninth Circuit decision at http://www.ca9.uscourts.gov/ca9/newopinions.nsf/F83F9960BF554187882574390057E776/$file/0535641.pdf?openelement

You may remember the Board of Education of the City of New York v. Tom F. nondecision by the United States Supreme Court last October. The Court affirmed the decision of the Second Circuit by upholding the ruling that a parent of a student with a disability may seek reimbursement for a unilateral placement in a private school even though the student never received special education services from the public schools. The decision of the court has no precedential value outside the Second Circuit because Justice Kennedy recused himself and the remaining justices deadlocked 4 - 4. A copy of the one page decision may be found at http://www.supremecourtus.gov/opinions/07pdf/06-637.pdf

The First Circuit has reached the contrary conclusion. Some special ed law pundits have pointed out that one must periodically consult a map of the federal circuits to determine what the law is where they are. They decry the lack of consistency and certainty.

In the broader context though , special education law is new law. When lawyers talk about new law, we mean anything that didn't travel over on the boat from England. Special ed law began in the 1970's. It is brand new law. Like other kinds of new law, there is a certain amount of public policy mixed in with congressional mandates and judicial and administrative decisions. One won't find many hornbook rules as in, say, contract law. Because special ed law is new law, however, these sorts of stops and starts are to be expected. They may, in the long run, be good. While I sympathize with teachers and principals who are trying hard to implement rules that we cannot even get the federal circuits to agree upon, I, nonetheless, believe that these things are necessary as this new body of law grows. So fasten your seat belts and place your tray tables in their upright positions. Hopefully, the oxygen masks will not be necessary.

Disability Discrmination

I consider myself to be an aware person. I feel like I'm attuned to the problem of discrimination. An event this week makes me wonder how aware I really am.

I was attending a special ed law conference this week. The organizers arranged entertainment for a luncheon that included an "inclusion choir" from a local school. They sang three songs. Like almost everybody in the overcrowded audience, I was feeling really good about the inclusion of kids with disabilities in the choir. I thought that this was a feel good moment. I joined in the standing ovation for the choir.

After the luncheon, I had a conversation with an advocate for kids with disabilities. She asked me whether I had noticed anything unusual about the choir's performance. I said yes, the choir included children with disabilities. Wrong answer.

The advocate informed me that the disabled kids were dressed differently (no black vest) than their non-disabled peers. Moreover, all of the disabled kids sat down and did not sing at all during the second of three songs. Yikes! These were two pretty blatant examples of disability discrimination. I was at a conference about disability law, and yet I completely missed both incidents. This leads me to wonder just how much I miss. Talk about feeling like a brick wall just fell down on your head.

One must see discrimination as it occurs before one can work to stop it. Unfortunately, unless one is properly attuned to a problem, it is difficult to even see it while it is happening. I plead guilty, but I'm going to try to learn from this incident. Maybe it's a baby step, but awareness is where it all begins.

Special Education HO Awards Family $720,000

I just received a heads up that a Florida hearing officer has awarded a family $720,000. This story is interesting for a number of reasons. First, the size of the award is big, apparently resulting from a judicial finding that the school district denied a free and appropriate public education (FAPE) to a student for two school years and the passage of time caused by appeals.

Second, a number of parents have left comments on this blog stating that they feel parents cannot win through the due process hearing system. This result would seem to show otherwise. I do not want to imply that it is easy for parents in special ed cases. The Rowley standard does not require a lot for FAPE to be provided. Where FAPE is denied, however, I believe that relief is available in most places through the due process hearing system.

Third, the amount paid to the parents is dwarfed by the amount shelled out for attorney fees. The District was ordered to pay the parents fees of $300,000. The district's own lawyer fees have exceeded $785,000. As Sen. Dirksen used to like to say "A million dollars here, a million dollars there, and pretty soon you're talking about big money!"

Thanks to Mark for the heads up. You can read more about this fascinating case at

http://www.theledger.com/article/20080501/NEWS/805010535/1039