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.

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