Wednesday, November 19, 2008

Due Process Hearings: What Process is Due? Part I

As I mentioned, I just returned from a conference of the National Association of Hearing Officials. One of the great things about NAHO is the richness of diversity of the types of administrative hearings that are being done across the country.
Special education "due process" hearings as they are now done across the country resemble mini-trials. The rules of evidence are generally relaxed, but the proceeding is adversary in nature and requires generally 1 1/2 to 3 days to complete, if all goes well. Many of the people I meet at NAHO, however, do high-volume hearings. 15 to 20 hearings per week per HO is not unusual. Many welfare-type hearings are called due process hearings or fair hearings.
I have often wondered whether by using the term "due process" hearing, that those who created the special education hearing system, intended a less adversarial method of dispute resolution than the one that has developed. One of the current criticisms of the special education hearing system of today is that parents and school districts need to lawyer up and pay expensive expert witnesses- resulting in a system of procedural safeguards accessed primarily by the wealthiest citizens, leaving the poorer parents and school systems without as much legal recourse.
Thus I was intrigued by a presentation at the NAHO conference by Professor Rhoda Pierre Cato of Florida A & M University College of law concerning "Due Process: Fundamental Concepts - Practical Applications." In her session she advocated a more relaxed "Inquisitorial Method." More on this in the next installment.

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