Friday, April 19, 2013

Superintendents Want To Eliminate Due Process Hearings And Mediation

Administrative Review Board hearings room
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.
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  1. I can understand that school administrators feel beleaguered by special education. It's complicated and expensive. Some parents are unreasonable in their expectations. General education requirements (common core standards, standards-based assessment, outcome-based teacher and administrator evaluation, endless reporting to state and federal agencies) has burdened school districts. The achievement of students with disabilities remains stubbornly low, dragging down overall district performance and prestige in the context of these requirements. It's no wonder that resentment of special education has reached the boiling point.

    However, it is difficult to understand what AASA envisions as the benefit of changes such as abolishing the IDEA Due Process Hearing mechanism for dispute resolution. Can they possibly believe that forcing parents into court would be less costly or would distract them less from the educational mission? I can see how such a change might benefit attorneys whose fees would be much higher for extended litigation than for the speedier and less formal Due Process hearings, but why would school administrators lobby for a change that primarily benefits attorneys while draining district resources and irreparably damaging school-family relationships? Would it not be more valuable and ultimately cost-effective for districts to focus on improving special education, so that students perform better and parents are less likely to file complaints or initiate lawsuits?

    The AASA proposal to eviscerate mediation is too stupid and short-sighted to merit comment.

  2. Mary Anne,

    Thanks for your comment.

    I'm getting lotsa emails on this topic!


  3. I'll bet you are!

    PS: Don't you just hate seeing typos in something you have posted, when it is too late to make corrections? Sister Mary Margaret McMurphy, my inner editor pointed out that I really meant to write "General education requirements ... have ...." :)