Wednesday, December 10, 2008

Due Process Hearings: What Process is Due - Part II

In the previous installment in this series, I stated my doubts as to whether the adversarial and expensive due process hearing system is the best way to resolve special education disputes. I also described a thought-provoking session by Professor Rhoda Pierre Cato at the recent NAHO conference concerning due process in administrative hearings. This is what happens when one pays attention at a conference!

One source of confusion is that the term "due process hearing" is a term of art, usually suggesting a less adversarial system. "Due process" is also a constitutional right, and the amount of due process that must be provided in an administrative hearing is the subject of much litigation and many Supreme Court decisions. Once again, the law uses the same phrase in multiple ways.

Professor Cato interprets these Supreme Court decisions, especially the seminal Matthews v. Eldridge, 424 U.S. 319 (1972), to mean that what process is due is a flexible calculation that permits the hearing officer to utilize a very non-adversarial approach. Due process still requires notice and the opportunity to be heard, but the way in which a party is heard is more relaxed. She advocates an "Inquisitorial" method. (Those who know me have probably guessed that I couldn't help myself from asking if there was a relationship to the Spanish Inquisition, which nobody ever expects. There isn't.) In this system, the rules, especially evidentiary rules, are relaxed for all parties whether they have lawyers or not. The hearing officer asks many questions to ascertain the facts, and listens to both sides without advocating for either. The hearing officer is not an advocate but participates actively to ensure a record complete enough to write good decision. The system is not adversarial.

There is other support for the Inquisitorial method for administrative hearings. Another conference participant, hearing me discuss this concept, alerted me to a law review article recommending this method for unemployment hearings. See, Milligan, William M., "Essay: Torquemada and Unemployment Compensation Appeals'" 29 U. Mich. J. of Law Reform 389 (Fall 1995 - Winter 1996). His position is summarized here beginning at page two:

Like many stakeholders, I am very comfortable with the current more adversarial due process hearing system. I'm familiar with it. I'm too old to change now. Inertia is a powerful force. Fortunately, however, special education law isn't about me. It's about some great kids who have special needs.

My question for my readers is- should we adopt some version of the Inquisitorial model for special education disputes? At this point, I think Congress would need to amend IDEA, the special education law, to allow it, but is there merit in moving to a less adversarial hearing system of dispute resolution? What do you think.

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