Friday, April 17, 2009

Overlegalization of Special EdDisputes - Part II

As I mentioned in a previous post, I recently heard an excellent presentation at the California Special Ed Law Conference by Perry Zirkel on the overlegalization of special education He cited some of his published articles and other studies. One simply counted the number of legal citations per decision and found an increase over the years. Others showed the increase in due process hearings.

He also talks about the reaction to overjudicialization of special ed: distrust, the development of cottage industries and the scapegoating of the neutrals. The distrust is apparent at hearings. By the time parents and districts get to a due process hearing, there is generally a lot of venom. It's hard to believe that IDEA's "collaborative" model can succeed after a hearing is over.

The cottage industries development is interesting. I suppose we should never count out the possibility of entrepreneurs finding a market. I guess that this category now includes me. Cool, I always wanted to have a cottage!

The scapegoating of the neutrals happens throughout society. At baseball games, we always boo as the umpires take the field. But the reaction to due process hearing officers is extreme, even for umps. At some conferences, I have actually seen people spit on the ground when they learn that they are in the presence of hearing officers.

I generally agree with this diagnosis. I have previously mentioned the possibility of adapting the Inquisitorial method of fact-finding to these special ed disputes- although as you will see in the next post in this series, I haven't exactly refined my thinking in that regard.

But one critique that I expressed at the conference, is that I think one has to distinguish between the 8 to 10 states that have over 80% of the due process hearings and the rest of the country. In the other states, I generally hear from people that there are no lawyers who will represent parents. Now mid you, I'm not advocating more hearings, but I do think that if there are never any hearings or only rare ones, the system isn't working properly. Maybe in some places the system is underlegalized.

What do you think?


  1. I may have missed this since I only recently subscribed, but which of the states account for the over 80%? I'm guessing that my state, Pennsylvania, is one of them. What's so different between a heavy due process state and a light due process state to account for the discrepancy?

  2. I am fairly new to the "cottage" industry of Special Education, but the large number of citations, particularly in California, may be attributable to the ease of access to a vast number of orders and decisions. The administrative body, the OAH, that presides over California Special Education due process hearings has a searchable database available on their website. In addition, the California Department of Education has databases that permit searches of decisions/orders issued prior to the OAH taking over the hearing process. Both of these websites permit users to search using various fields, this makes it easier to find decisions that support ones position and probably accounts for the large number of citations that occur in filings.

  3. Having recently moved to the state of Virginia from Alabama, I've found an interesting difference....the parental consent requirements found in Virginia. For changes to eligibility or placement, a parent has to consent to the change as part of the process. If they don't consent, no change occurs. In our most recent special education regulation revision process, schools were first up in arms and tried to have parental consent revoked via Department of Education. The subsequent parental backlash made heads spin in Richmond...and the changes were removed.

    Here's the interesting part (at least to me)...when a parent disagrees with the rest of the IEP team and refuses to give consent, the school has the option to go forward with due process to make the change...just like parents do on every other issue. So, how often do parents not consent and how often do school districts take parents to due process to implement the change? I'd suggest school districts do it very rarely. Why, because the burden of proof would be on them and the cost. It's again why it's so important that the burden of proof back to the school district, the party with the real power and money....just some observations. Any one else out there with a similar system?

  4. I think the due process hearings are valuable--but only as valuable as the due process hearing officers are competent. Having worked with both the brilliant and the completely lackadaisical versions of hearing officers, there is a huge difference in quality of thought and the ability to prevent conflict and negative feelings by making the parents/student feel heard. I think there needs to be an incentive for schools and states to hire the best and the brightest hearing officers.

  5. As a school attorney in Connecticut, I have to agree with Perry Zirkel on this. The adversarial process mandated by IDEA for resolution of disputes requires parents to "gear up" to dispute the decisions made by the school to serve the child, and requires each side to attack the expertise of the other in order to resolve the dispute. Although we have adopted the adversarial process in the American judicial system as the "best" way to resolve disputes on the theory that the contested case will result in the best possible decision, it results in "scorched earth" and is not necessarily the best possible method of resolving disputes for parties who have to continue to work together for years afterward. I have some posts about the due process system records in Connecticut on my blog:

  6. Personally, I've not ever been through due process- mainly because the various districts I've worked for (in Illinois and Michigan) were so fearful of due process that they basically gave parents whatever they demanded.

    Regarding Jeremy's comment, there have been cases in which I felt that district would be absolutely in the right, and looking out for the student's best interest, by going to due process and overriding parental denial of consent- and yet they cowered from that as well.

    I think due process-overall- is well intended but has had effects no one could have forseen.

  7. Wow some great comments here. I'll repeat this in a post but I believe the league leaders are Washington Dc (#1 by far), California, Maryland, new Jersey, New York and Pennsylvania. The source, I think is the GAO study which is a bit dated, but I think that the trend remains the same.


  8. In Washington State the due process hearings are a joke. Only parents that happen to have $20-30,000 at their disposal can even contemplate it. Even then, finding an attorney is a difficult chore. There are also virtually 0 resources for low to moderate income parents, hence we generally have to DIY, researching on line, talking to other parents and a seemingly endless stream of meetings. I'm not an attorney, but this adversarial approach does not help relationships between parents and district employees. Also the fact that it is so costly, many parents simply give up and take what they know to be inadequate for their child.

  9. Here is an interesting take on Due Process Consent override. In order tohave your fundemental parental rightsdiminished or over ruled there must be a decision on whether the parents are fit (see troxel v grantville or Parham v Jr; US Supreme court). Both cases require parental fitness decisions before diminish or override of Protected Constitutional fundemental rights. Here in PA I recently did a reverse due process(school intiated) in which the hearing officer admitted he could not make parental fitness decsisons. If he can not make parental fitness decision then consent override via due process cannot happen as thehearing officer does not have the authority or jurisdiction. So in some cases the process needs to be looked at and made to conform to case precedents.

  10. Anon,

    Intersting comment. Thanks for sharing.