Thursday, June 5, 2008

In Further Defense of the Hearing Officer

In a recent post, I mentioned the low level of respect accorded due process hearing officers in the world of special education law. I continue to believe that hearing officers are not properly valued, and I have decided to begin a campaign to increase the awareness of what hearing officers really do.

When parents and school districts disagree and cannot resolve their differences, they often end up in a due process hearing. If they try to skip the due process hearing and go directly to court, the court will generally dismiss the action for failure to "exhaust administrative remedies." See, Coleman v. Newburgh Enlarged City Sch Dist 503 F.3d 198, 48 IDELR 208 (2d Cir. 9/25/7). So the due process hearing is almost always the only "trial ." Either party has a right to appeal the hearing officer's decision to a court, but the court will generally not allow further factual development unless the hearing officer really messed up the hearing or new evidence is developed. So the hearing officer has a lot of responsibility.

Not much caselaw exists concerning how a hearing should be run. This is likely a result of the standard generally applied to the judicial review of administrative hearing officer decisions. Courts will likely overturn a decision for procedural reasons only where the hearing officer has "abused his discretion." Ex parte Medical Licensure Comm'n of Alabama 897 So. 2d 1093,
1096-97 (Ala. 2004). This is a vague standard, but it implies at least some deference to the rulings and orders made by the administrative hearing officer. The reason why the administrative hearing officer is vested with substantial discretion in determining hearing procedures is that discretion “… is indispensable whenever individuality is needed…The administrative process allows discretion in order to take care of the need for individualized justice…” Old Abe Co. v. New Mexico Mining Comm. 908 P.2d 776, 121 N.M. 83 (NM S.Ct. 12/11/95).

I'm an advocate for extensive training of hearing officers concerning how to apply these discretionary procedures in a fair manner. I'll admit a bias here: some of my work involves training hearing officers, for special education hearings and for other types of hearings. Nonetheless, I strongly believe that high quality skills training is essential for hearing officers. That is why I will be giving skills-based trainings at the Hearing Officer Academy next month.

In any event, the work of the special education hearing officer is very important. The hearing officer is essential to the proper working of the due process system. I recognize that due process is only one dispute resolution mechanism, and, indeed, I advocate mediation as the mechanism most likely to restore the relationship of parents and school personnel. Hearings, however, remain an essential procedural safeguard that is absolutely necessary to the guarantee of FAPE to children with disabilities. Accordingly, hearing officers should be respected. They also should receive sufficient training and support from the state department of education to be able to do their jobs well. Their independence and freedom to make their own decisions should never be challenged.

As you can see, to further signal my solidarity with the brotherhood of hearing officers, I have added one permanent photo of me being a hearing officer to the left side of this blog. Also, I am experimenting with adding a new element, including a photo inside this post. Once again, I am presiding over a hearing.


  1. You know, Jim, I'd say hearing officers who actually know special ed law, and are capable of applying it correctly and justly, do garner respect.

    In this writer's opinion, however, not only do not all hearing officers misunderstand and misapply IDEA, but MOST hearing officers misunderstand and misapply IDEA. Hearing officer training, therefore, is a great start towards remedying this problem.

    Jim Rosenfeld runs a fine academy out of Seattle University. Ironically, I've run across administrative law judges who've attended this training, yet continue to make rulings that go against what they have been taught. It's like they either weren't paying attention, or worse -- they paid attention but refuse to listen and are content to be off on their own.

  2. Thanks for your comment.

    I know that some hearing officers don't make the grade, but most of the ones I have met seem pretty good. Training alone does not make one fair and just.

    There are some states that provide little or no training. Most states grossly underpay due process HOs. This doesn't justify a bad result, but lack of respect from the State can only cause the process to go downhill!

  3. Jim: I second everything you say. Hearing Officers are undervalued, both professionally and economically. I would just like to add one point of clarification. In some states, such as New York, there is a two step adminstrative process. The Impartial Hearing Officer makes the inital decision which can be reviewed by the State Review Officer. That review is done on paper. Additionally, at least in New York some Impartial Hearing Officers are not attorneys. (This may have recently been changed with respect to new hearing officers; I am not frankly sure.)While there are very few none attorneys,in my view, admission to the bar with at least 8 years of experience is an absolute minimum qualification.
    Mitch Rubinstein

  4. Thanks Mitch,

    Good Point. I will do a post on two tier due process systems.


  5. I really appreciate your post and you explain each and every point very well.Thanks for sharing this information.And I’ll love to read your next post too.

    1. Thanks for your nice post. i do agree with the point that high quality skills training is essential for hearing officers. It is necessary to make the right decision.