Wednesday, March 4, 2015

My Powers Are Beyond Your Comprehension: My New Favorite Case #power

OK so I have a new favorite case.  As many of you know, I train special ed hearing officers (and mediators, complaint investigators and other state staff) around the country. In preparation for that work as well as my other gigs (including speaking on special ed law and serving as a hearing officer, mediator and investigator), I read a lot of hearing officer and court decisions. A new favorite has emerged.

As background, I tell hearing officers that they have broad authority to run and control a hearing. Some of my fellow Pennsylvania hearing officers quote what they call the "Gerl rule" which is MY POWERS ARE BEYOND YOUR COMPREHENSION! This authority stems from the inherent authority of the hearing officer to do all that is necessary to conduct a quasi-judicial hearing and exists regardless of whether agency regulations explicitly outline these powers. See this old post. And see this old post.

So along comes a case last year: Edward S & Virginia S ex rel TS v West Noble Sch Corporation 63 IDELR 34 (ND Ind. 3/31/14) After noting that dismissal with prejudice is an especially harsh sanction that should be used only as a last resort, the U. S. District Court for the Northern District of Indiana upheld an IDEA hearing officer's dismissal with prejudice of a due process hearing complaint. The Court held that, unlike a hearing, a party has no right to record a prehearing conference. Despite this, the grandparents' attorney disregarded the hearing officers directive that a prehearing conference not be recorded on four separate occasions.

Although the court was "troubled" by the disrespect showed by the hearing officer toward the grandparents' attorney at first, the hearing officer's edginess subsided after about fifteen minutes. Because the grandparents' attorney acted in direct contravention of the hearing officers orders four times, however, the Court ruled that the hearing officer did not abuse his discretion in dismissing the complaint with prejudice. The Court noted that although IDEA and relevant state law gives a party a right to a due process hearing, they can forfeit that right.

In footnote # 1 (always read those all-important footnotes) the Court states that the dismissal in this case was akin to a sanction pursuant to the inherent power of a court. (Significantly, this means that an IDEA hearing officer also has inherent authority.)

You can read the court's decision (unfortunately minus the all important footnotes) here.

I think we can agree that this hearing officer may need to work on his demeanor some and that perhaps a lesser sanction may have been appropriate on these facts, but this decision is an important one for hearing officers and their authority to control the hearing.

What do you think?


  1. Recording should be allowed. As I get older, and frankly, burnt out, as a (non-professional) parent/advocate/guardian I find it increasingly difficult to transcribe administrative procedures for my kids while procedures are on-going. At this point, these are Individual Service Plans rather than IEPs, 'cause they're adults. I would argue that this stacks the odds in the school's/Agency's favor, and that, in a way, this is arguably a form of discrimination: age-related intellectual disability, psych disability for the burnout; inasmuch as proceedings are part of ADL... well, you know where I'm going with this.
    In any event, my recollections of previous meetings have always been dismissed as anecdotal, not probitive.

  2. Anon,

    Thank you for your comment.