Sometimes My Job Is Pretty Cool

I am blessed.  I get to travel a lot as a part of my job, and I frequently get to see stuff like this

Pretty cool, no?

Superintendents Want to Eliminate Due Process: Part II

Chapel of St. Ignatius - Steven Holl - Seattle University (Photo credit: ScottLarsen)

Last week we ran a post on the proposal by AASA, the superintendent's group, to kill off due process hearings and mediation. We got a lot of reaction to the post.

In the process of reviewing the reactions, I learned that our friend Jim Rosenfeld at the Seattle University Academy had a reaction to his being quoted in the article.  The following is his response that is posted on the Academy's website(the remainder of this post are Jim's response):

In early April 2013, the American Association of School Administrators (AASA) released Part I of its IDEA Re-Authorization Proposals titled "Rethinking Special Education Due Process." In its own words, the Report "contends modifications to the current due process system could greatly reduce, if not eliminate, the burdensome and often costly litigation that does not necessarily ensure measureable educational gains for special education students. At the same time, AASA's proposal preserves the right for parents to move forward with litigation against a district and maintains other effective dispute resolution models that were put in place in the prior re-authorizations."

I was asked to review and comment upon a January 2013 draft of the Report, probably because it cited quotes from my article "It's Time for an Alternative Dispute Resolution Procedure," 32-2 NAALJ 544-567 (Fall 2012) that were critical of many aspects of special education due process hearings. Those references were included in the final Report, which also listed me in acknowledging "the many people who have been involved in the development of this report."

My concern is that readers of the Report, looking simply at the quotes from my NAALJ article and the statement "acknowledging" my "involvement" in development of the report, may conclude that I support the AASA's recommendations. That is incorrect. While I have many concerns about due process, most of them could be ameliorated by assuring that parents have competent counsel. I have never suggested or advocated that a litigation option be removed from IDEA. Moreover, I never saw the recommendations included in the final report.

Most importantly, I fundamentally disagreed then and now with the Report's assessment of the place of children with disabilities in the public education system. Reproduced below is virtually the entire body of my comments provided to AASA following my review of the draft I was provided.

"My apology for taking so long in getting back to you on this. I hope you are still open to additional comments, but if not, I completely understand. Moreover, I suspect you will not be happy with what I have to say, but you did ask and I would not feel comfortable being other than completely honest. Finally, I hope and expect that you will not share the following with anyone without my prior consent.

"To be candid, I find the article surprisingly insensitive to the needs and concerns of children with disabilities and their parents - with one surprising exception. That is the first paragraph of the section titled "Reconsidering a due process framework for IDEA," which sounds like it was written by a different author. I understand, obviously, that the article is written from and designed to explain the school administrators' perspective, and it does that well. The statistical information, particularly, is quite useful.

"However, there appears to me to be a tone throughout the article that children with disabilities are being uniquely and unfairly entitled to privileges not available to other children, when in fact the IDEA mandate was enacted (as I'm sure you know) to provide them with the same access to education routinely provided to children without disabilities. (Or as an old friend of mine put it many years ago: "Kids with disabilities are entitled to the same lousy education as kids without disabilities.") Moreover, there does not appear to be much tolerance or understanding of the need for a litigation alternative in the event that other dispute resolution procedures fail, even though most of us agree about the many serious flaws surrounding litigation (e.g., cost, length, access to representation, etc.), virtually all of which are found in other, non-education settings. Finally, I see no recognition that, to put it bluntly, schools are sometimes responsible for generating litigation, for example by poorly implementing the law, failing to train personnel adequately, refusing to identify children or provide them with necessary programs/services for fear of "setting a bad example," etc. To put it another way, no one has clean hands here, even if the system was perfect, which it obviously isn't. Finally, in my opinion, taking away the litigation alternative, particularly given how infrequently it is used, will inevitably be viewed by the parent community as a major threat and, I suspect, undermine the chances of realizing other important improvements."

I concluded my comments with the suggestion that a good, data-driven study of the due process system be conducted, suggesting that it is much needed and long-overdue. There was no response to this suggestion.

Related articles

• Superintendents Want To Eliminate Due Process Hearings And Mediation
• Harkin Amendment Would Blunt Sequester Cuts to Special Ed
• Trainings of Dispute Resolution Professionals

Superintendents Want To Eliminate Due Process Hearings And Mediation

Administrative Review Board hearings room (Photo credit: Wikipedia)

One doesn't ordinarily use the words radical and superintendents in the same sentence, but I may be about to do so!  AASA, the school superintendents association, has issued a recommendation for reauthorization of the federal special ed law, IDEA. (As we have mentioned here before, IDEA is overdue for reauthorization, but Congress is too busy ignoring other important issues at this time.)

The paper issued by AASA is described here on their website.  You can, and really should, read the entire  30 page paper here. In fairness, the report has some good ideas.  For example, it would require the availability of IEP facilitators.  IEP facilitation is a great way to resolve special ed disagreements before they become full blown disputes. Also, they propose the availability of an education consultant to rewrite a student's IEP; this would seem to be a great idea if the parties still have the option of a due process hearing.

The radical part of the superintendents' proposal is the complete elimination of due process hearings.  (I admit to a bias here.  I am a hearing officer and mediator, and I train hos and mediators as well as advise states on dispute resolution systems.) But  I think that this is crazy.  As the report states, due process hearings are really only a problem in the seven or eight states that have 80% of all the hearings.  In many other parts of the country, a parent cannot find a lawyer to take a special education case.   To be clear, the goal is not more hearings but rather to make sure that in fairness parents know their rights. 

The report calls for the elimination of due process hearings with the right to a lawsuit in federal court instead. If this were implemented, the federal court proceeding would have to be a trial de novo to ensure procedural due process requirements were met after removing the option of an administrative hearing.  This would explode the dockets of the federal courts.  Scores of new judges would have to be hired.  The expense of litigating a trial in federal court will greatly increase the money being spent both by parents and school districts. This hardly seems like a good idea or a fix to the problem. I believe that although the current system  has problems, eliminating administrative hearings is a bad idea.

The report seems to approve of mediation in some places.  Tellingly, however, on page 19 of the report, the superintendents call for a key change: making mediation agreements be not legally binding. This change would  completely gut mediation.  No party would agree to mediation if a binding agreement is not possible.  Why go through the process if the "agreement" is optional?  This change is inserted without fanfare into the always popular criticism of lawyers.  If it is a serious proposal, it should be fully discussed and explained- not slipped in through the back door..

So please read the report and let us know what you think.

Related articles

• Trainings of Dispute Resolution Professionals
• Mediation is 'common sense' not a sign of weakness, says Commerical Courts chief
• Special ed advocates pushing bill to make it easier for parents to dispute IEPs

Sometimes My Job Is Very Cool

When Rowley Doesn't Apply; New Law Review Article

Woodstock Music Festival/1969 (Photo credit: dbking)

If you are a fan of special education law, you should be familiar with Mark Weber, one of the leading academic authorities in this area of law. As a good impartial, I must admit to a bias, Mark is also the only person to have cited this blog in a law review article; therefore, everything he says is necessarily true and correct. (NOTE: in fairness, this only applies to law review articles.  Professor Mitchell Yell has cited the blog in his excellent book, and Barbara Bateman and Mary Anne Linden have cited the blog in a couple places in their bible on IEPs.  This blog has serious street cred!)

Anyway, I digress. Professor Weber has a new law review article. The title is "All Areas of Suspected Disability."  He was nice enough to share it with me.   I also discussed it with him, and heard him lecture about it, during a recent training in Missouri. In this article he notes the tendency of courts and hearing officers to strictly enforce the IDEA provisions requiring that students be evaluated in all areas of suspected disability and that their IEPs address their individual needs.  He suggests three possible explanations for this development: First courts and hearing officers may be reacting to the limited definition of FAPE penned by the Supreme Court in the 1982 Rowley decision.  Second, he notes that judicial and administrative decisions are placing an increasing emphasis on inclusion; or more technically the least restrictive environment requirement of IDEA.  Finally, he looks at whether the bad economy of recent years may be fueling the trend. Obviously I'm summarizing here and probably badly; you should read the article yourself.  It is available on SSRN at this link. You may need to register on the site to read the article.

We have wondered here before about the impact of the bad economy upon special education.  What are your thoughts?  Also Mark's article brings up a good point.  Rowley only concerns FAPE cases.  While that is the majority of cases, IDEA has other requirements, like LRE and evaluation and eligibility/child find and placement (a slippery term that means a lot of things like- LRE, stay put, discipline and maybe even location.)  

Also as we have noted here about the trend in bullying cases and seclusion/restraint cases, the old maxim that bad facts make bad law has some resonance. We see courts and hearing officers paying lip service to Rowley and then not really applying its standard in cases where the facts are egregious. The sniff test seems to be closer to the real standard.

So read Mark's article, and tell us what you think.

Related articles

• The Most-Cited Law Review Articles of All Time

Sometimes My Job Is Pretty Cool!

In the spirit of Where in The World is Jim Gerl, who can name this location?  (Note: the white stuff is snow!)

See our Tumblr mini-special education law blog here for more photos of the scene of the crime