Thursday, October 1, 2009

If You Could Write the Special Ed Law...

IDEA, the nation's special education law is up for reauthorization. True, Congress is busy with other stuff, but sooner or, more likely later, the lawmakers will turn their attention to amending the special education statute.

What would you like to see? If you could write the law (and in a democracy, at least in theory you can have some influence), what would you do? I know that many feel that the law is imperfect or worse. If you follow the link to the Facebook special education law group on the lefthand side of the blog, you will see some passionate discussions. As I have previously mentioned, I'd like to collect your thoughts and present them as a group. As the number of subscribers of this blog continues to grow, we gain credibility in the blogosphere. I hope that this will translate into a voice in the process. So what do you think? What would you change?

I know from previous posts that that many of you have strong opinions on transition planning and related issues. What else should be changed?

I am considering requesting a change in the adversary nature of due process hearings and will continue a previous series of posts on that issue to try to flesh out the alternatives a bit more. Do you agree these changes should be made?

How about the Rowley standard? Should the educational benefit = appropriate standard be changed? Would you have the Congress reverse the other recent high court decisions: Weast (burden of proof in a dp hearing); Murphy (expert witness fees awarded to prevailing parents); Winkleman (parents can represent themselves in federal court on dp hearing appeals).

How about the Forrest Grove issue; should the Congress specify whether or not a child must attend public school before reimbursement for a unilateral placement is available, and if so for how long? Should this apply in non-FAPE cases?

Should the recent Fifth Circuit ruling that added conditions for reimbursement for a unilateral placement be codified in the statute?

Should attorney's fees be addressed?

How about Response to Intervention - is it working well as a means of identifying specific learning disabilities? Should it be expanded?

How about NCLB as it applies to kids with disabilities: do we like the accountability aspects? how about the high stakes test? What about the school sanctions provisions?

Do you think the role or mission of OSEP should change? What could it do better as the federal agency charged with enforcing the special ed law?

My goal here is to collect some of your responses and present them to Congress. Sure I've got some ideas, but why not flex our muscles. The readership of this blog is growing. I'm quite proud that many different kinds of special ed stakeholders are tuning in. We have won awards and recognition. If there is power in numbers, why not present some of our thoughts as a group? I'll try to be fair in any presentation I make and I'll try to separate out my opinions (and as you know they can be strong) from group opinions or from group lack of consensus. I think that this may be fun. Please let me know how you would change the special ed laws.

The First Statute, 1529Image via Wikipedia

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  1. Dear Mr. Gerl:

    I would like to respond to your inquiry about the adversarial nature of due process hearings. For appropriate context, I practice education law in Pennsylvania and New Jersey.

    Due process hearings are adversarial, and I respectfully submit that they should stay that way. Many state laws and the IDEA itself provide non-adversarial forms of dispute resolution (most frequently mediation) as alternatives to due process hearings. Mediation is actually used with great frequency, and has rather remarkable results in regard to disputants’ perceptions of the fairness of the process. See Welsh, Nancy "Stepping Back Through the Looking Glass: Real Conversations with Real Disputants About Institutionalized Mediation and Its Value," Ohio State Journal on Dispute Resolution, 2004). The fact remains, however, that non-adversarial dispute resolution is not a panacea. In cases where the parties cannot reconcile, the most important thing is for an independent fact-finder to determine the reality of the situation and then impartially apply the law. I know of no better method for this than the due process hearing.

  2. Thanks Brian,

    It is interesting that there seems to be a split about this issue. In the six states that generate 80% of due process hearings, the stakeholders like the system. In the rest of the country, there is a desire for a less adversary system.

    Thanks for your input.

    Jim Gerl