Friday, January 9, 2009

Due Process Hearings: What Process is Due? Part III

In previous posts in this series, I have discussed some of the dissatisfaction with the due process hearing system as the main way of resolving special education disputes. The major complaints involve the adversary nature of the system and the expenses it causes the parties to outlay. I examined the constitutional due process requirements and wondered whether a more relaxed and less adversary dispute resolution mechanism with fewer evidentiary rules and less legalese might be better. I discussed as one alternative the "Inquisitorial" method. You can view the previous posts here:
Part I and Part II

As you know from my last post, this is an area where I intend to encourage the Congress to make some changes. I'm still working out the kinks and the details of my proposed changes, and continue to welcome your input regarding potential changes to the special ed law. Before I get to fleshing out my proposals, however, I wanted to discuss some of the other proposals that are out there. Two of my esteemed colleagues have proposed forms of binding arbitration as the answer. In this post and the next in this series, I'll be discussing these ideas. As always, I'd like to hear what you think.

The first model involves submitting the dispute to an arbitrator selected by the parties and an agreement to be bound by the arbitrator's decision (usually called an award.) One of the keys is the arbitrator who is selected. The parties would have to research the neutral and perhaps talk to references before agreeing to the arbitrator.

Under this model, the parties could choose to have the arbitrator resolve future as well as current disputes between the parties. The arbitrator would have a significant level of power, and the information gathering process would be left to the discretion of the arbitrator. The arbitrator could simply talk with the student, parents and district employees, or observe the student at school or receive exhibits. The process would be flexible enough for the arbitrator to utilize mediation techniques at any time he felt appropriate. If a violation is found, a written decision with appropriate relief would be issued. The process would prohibit participation by lawyers at the dispute resolution sessions although the parties could consult by telephone with legal counsel. The parties would have to certify that they have consulted with a lawyer prior to entering into the agreement to arbitrate. Lay advocates would generally be permitted.

So what do you think of arbitration so far? Congress has considered this change although why they did not include it is a bit unclear. The House of Representatives version of IDEA'04 included a specific provision permitting binding arbitration as one method of dispute resolution. The Senate version did not. The Senate apparently prevailed as to this point in the conference committee because the final version of IDEA'04 removed the arbitration provision. So the current law does not even mention arbitration.

In the next installment in this series, we'll have more on the other arbitration proposal.


  1. Hi Jim! Hope you've having a great new year.

    I started covering special education right when IDEA '04 was reauthorized, so I'm not famiiiar with some of the ins and outs of the debates that took place before we ended up with the final product. I'm going to guess, however, that there were some concerns that binding arbitration might rob one party or another of their rights to appeal. I'm not sure why the Congress wouldn't even include it as an OPTION, though...I wonder if there might have been some vested interests in Congress to keeping lawyers as much a part of the process as possible?

    Regarding arbitration and the "inquisitorial" method you wrote about earlier, it seems that much rests on the skill and fairness of the hearing officer, and that could be a lot to ask in some cases.

    I am curious, Jim -- how many hearings have you been a part of where one side or the other is clearly, unequivocally, wrong? I live in D.C., and of course it has a huge problem meeting many, if not all, parts of an IEP. So there are many cases where it's pretty cut-and-dried there.

    But in other cases, I'm guessing that there's a difference in what each side wants, but it's not like one side is just absolutely incorrect. Is that right? If so, then the hearing officer plays such an important role in weighing different education plans for a kid. Maybe that's why each side feels like they need to bring the biggest "guns" to the table.

    But you're right that it's so adversarial and needlessly so. Sometimes it's the little things; in my last blog post I wrote about food at IEP meetings, and a commentor talked about how all the school personnel were eating donuts and coffee in front of her, without even offering her something. It seems so small but that strikes me as just a petty rudeness that makes it hard to feel good about the people you're dealing with.

  2. Hi Christina,

    Great to hear from you. You make a number of great points. First, concerning the Inquisitorial method, it would be critical that the hearing officer be absolutely fair and well trained. I would argue though that the same is true for the current due process system. I would love to hear your thoughts on how to pressure states to hire and train good HOs. (I have a bias here; I do HO training as part of my work.)

    As to the adversariness, the donuts example is telling. Many hearings result from poor communication and other basic human skills.

    You live in the hearing belt; DC plus six states have more than 80% of all due process hearings. I think that like many other areas of law, the closer cases tend to hearing and the more lobsided ones go tend to settle, but one difference in special ed is that in many places parents cannot find lawyers who know special ed law. As a result many hearings are never "screened" by a lawyer. On the other hand, many pro se parents do a great job.

    Thanks for the comments. I hope you will share what you would change about IDEA as well.

    Jim Gerl

  3. Jim:

    I come to this as a parent. I have approached due process several times--sometimes with an attorney and sometimes without. You are right about the lack of attorneys with special ed knowledge. We had one excellent one in our state--when she closed her practice it left an enormous hole. I would generally support a move away from adversarial towards an inquisitive approach, as I think it may provide an opportunity for both parties to pull away from polar arguments.

    What I would say, however, with regard to my overall experience with due process is that it is so frequently the only option--and it centers so directly on a single experience. In other words--it may be able to fix this year's IEP (sometime before next year, one always hopes)--but not any of the underlying policies and practices that led to disagreement in the first place. If the unwritten policy in the district is that all ED kids are put in a resource room, a hearing may result in telling the district that they have to put at least one kid in a regular classroom. This ends up being very difficult to support because all of the district resources are being used in support of that segregated resource room. So--the IEP is written in compliance in the law, to allow this one kid entry into a regular classroom--and there may even be some appropriate supports written in (maybe even a full time aide for the one kid). The regular ed teachers are no better trained (unless this is written into the IEP--but again, that's just this year's teacher), the school culture has not changed to support inclusion--and the kid becomes and anomaly with pushy parents.

    What is lacking, is any meaningful way to look at and put an end to the de facto policies. I don't know if an inquisitorial hearing might be better suited to uncovering some realities such as there being NO ED kids (or whatever) being served inclusively, or classes of kids being steered away from programs that would be helpful to them. I used to think that if enough of us followed through with due process to get our kids needs met, that the district would become aware of their legal obligations and things would change. This doesn't yet appear to be the case.

  4. Thanks for your thoughts MargoM,Jim Gerl