Thursday, January 15, 2009

Due Process Hearings: What Process is Due? Part IV

In the first three parts of this series, I discussed the dissatisfaction with the due process hearing system as the primary vehicle for resolving special education disputes, especially the adversary nature of the system and the expenses it causes the parties to incur. I looked at 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. Then we discussed the concept of arbitration that was endorsed by the House and not the Senate in IDEA'04, and we examined one of the proposed arbitration systems. You can view the previous posts here:
Part I , Part II and Part III

As I have mentioned here, 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. As always, I'd like to hear what you think.

Today I'm going to discuss a second arbitration model suggested by a colleague. Please note that I am sharing these models for informational purposes and to get the reactions of the readers of this blog. This second arbitration model has its roots in the European tribunal model. The tribunal, rather than the parties or the lawyers, is responsible for developing the record. Thus, the arbitrator would be the primary questioner of witnesses and would select documents for review. The arbitrator would exercise the inquisitorial function. Again the quality of the arbitrator must be uniformly high for the system to work. The arbitration process would be completely voluntary. The decision of the arbitrator would be final and not subject to further judicial or other review.

Under this arbitration model, lawyers would be banned unless both sides were represented. Lay advocates would be permitted for parents. The process would be informal and no permanent record of proceedings would be kept. The decision would state only the result and the relief required if any.

In the next installment in this series, we'll have some of my thoughts on how we might reduce the adversariness and expense of the due process hearing system. In the meantime, please let me know how you feel about these two arbitration model as well as the current due process system.


  1. You mentioned arbitration. That is used alot in other industries to settle disputes, such as insurance claims.

  2. Thanks DR,

    I think that some lawyers are reluctant to embrace arbitration because of bad experiences in insurance and consumer arbitrations.


  3. The Founding Fathers encouraged lawmakers to write legislation in a way that the average literate person would be able to read and interpret the law without needing a lawyer to decode its real meaning. Special Education law wouldn't be nearly as complex as it is today if there had never been lawyers involved in the process.
    Parents are expected to familiarize themselves with the law so that they can participate as equal members of the team that plans their child's education. School officials, who are the authors of most IEP provisions are given deference in due process hearings because they are the so-called "experts" when it comes to educational services. These two sets of stakeholders should be able to resolve all issues without the involvement of lawyers at all. A truly impartial judge-not one overseen by the state DOE which is ultimately responsible for the provision of a FAPE to disabled children-is the only outsider that is needed to settle disputes. If the school personnel can't defend their own programs, then why are they recommending them in the first place?

  4. I'm a graduate student in an Educational Policy program in Utah. I am doing research on FAPE due process policies in Utah. I understand that in the past 30 years Utah's hearing officers have ruled 100% in favor of the school districts and against the opposing disabled student in due process hearings. Since Utah is also the state with the lowest per student expenditure rate in the nation, it would appear that Utah may not be providing FAPE, and that its due process hearing officers may be biased. Since you have served as a hearing officer in Utah, would you comment on this statistic, on Utah's policies, and your thoughts in general on Utah's ability to provide FAPE.

  5. PS,

    I am a hearing officer for Utah. I cannot comment upon your allegations. Please see the disclaimer on the blog. Thanks,


  6. Arbitration helps keeps the courts freed up from the type of cases that sort of waste its time.

  7. Thank you AD,

    We appreciate your comments.