An IDEA for improving English language learners' access to education.

• Author: Archerd, Erin
• Position: II. The Promise of the IDEA C. Maybe Lawsuits Are Not the Answer: How the IDEA Can Help 2. The Benefits of Special Education Dispute Resolution through Conclusion, with footnotes, p. 378-401

2. The Benefits of Special Education Dispute Resolution

   The benefits of IDEA dispute resolution over more traditional litigation and other options should be clear by this point. Rather than waiting years for litigation to take its course, these dispute resolution procedures take place on a much more expedited schedule. (118) Rather than having to consider the school's programs in the abstract, the focus under the IDEA is on a single student and his or her particular needs. Rather than relying on government officials to investigate complaints and decide whether to take action, parents can act on their own initiative. Further, the IDEA'S dispute resolution procedures ought to be flexible enough to allow discussions about a broad range of education rights, including those found in the EEOA and NCLB, although OSEP guidance appears to actively discourage using the process for issues other than IDEA-related disputes. (119) And finally, these dispute resolution procedures work in a significant number of cases, providing benefits to the student quickly and efficiently, while maintaining or even strengthening the relationship between parents and school. (120) Indeed, one of the biggest contributions dispute resolution can make to the special education process is providing parties with a sense of procedural justice and voice. In a qualitative study interviewing parties in special education mediations in Pennsylvania, Nancy Welsh suggests that schools and parents both valued mediation most for its procedural justice, but that each group had a slightly different focus. (121) Parents valued the opportunity to express their views, the assurance their views have been heard, and evenhanded, dignified treatment, while schools valued the ability to hear parents' concerns and also having parents hear and accept the norms school officials typically apply. (122)

   Yet dispute resolution in the abstract is not a panacea. Settlement agreements reached in resolution sessions or mediations are unlikely to serve as precedent for other students to receive services under the IDEA. For example, settlements do not carry the weight of a hearing officer's judgment behind them, and the agreements themselves are often confidential. (123) Further, some legal scholars argue that a private process simply provides a more convenient forum for the oppression of minorities. (124) While this concern is legitimate, it is not insuperable. Other scholars, working primarily in the context of employment disputes, have suggested that mechanisms like tracking of complaints and periodic reporting of trends in the types of disputes and parties involved can be built into these more private processes to identify and ameliorate issues of prejudice and stereotyping. (125) Indeed, school systems have begun to adopt some of these practices, particularly the use of an ombudsperson or other independent person at the district to help screen special education complaints and make referrals for services. (126)

   Ultimately, the greatest promise of dispute resolution procedures like mediation and facilitated meetings lies in their ability to bring parties together on an expedited timeframe, under a structured framework for discussion. Though these procedures may not be perfect, they appear to be the best opportunity that language-minority families currently have to improve the education services that their children are receiving.

   3. THE USE OF IDEA DISPUTE RESOLUTION IN URBAN SCHOOLS

   States have significant latitude in how they choose to satisfy the IDEA'S dispute resolution requirements. (127) During the sixteen years since mandatory dispute resolution was first put in place, the states have adopted a wide range of solutions. As this Article discusses both above and below, the details of a state's dispute resolution program can significantly affect language-minority parents' ability to enforce their statutory rights. It is important that information be available in the parents' native language, of course, but also important are the dispute resolution procedures adopted, the training and background given to mediators, and school administrators' awareness of particular problem areas for language-minorities, among other things.

   To begin to see how ELLs and their families actually experience the IDEA'S protections, this Part surveys large, urban school districts in the three most populous states--California, (128) New York, (129) and Texas. (130) These areas have large ELL populations and so have significant incentives to consider ELLs in designing their special education dispute resolution programs. (131) A survey of districts in these states gives a good overview of the practices and procedures that language-minorities have to work with in public schools today. (132) Specifically, this survey looks at these districts' practices in five different areas: the procedural safeguard notices that districts are required by law to provide; their translation and interpretation services; the types of dispute-resolution procedures they have implemented; the use of parent groups as another resource to other families in the district; and any ELL-specific special education services provided by the districts.

   1. Procedural Safeguard Notices

      States and school districts are required by law to make a "Procedural Safeguard Notice" available to parents. (133) At a minimum, this notice must explain the basics of special education rights, including parental complaints, dispute resolution, and due process hearings. (134) Most schools use a version that has been promulgated by their state's department of education, which tends to track the OSEP model notice closely, and some states provide additional brochures that outline options or give examples and explanations of when and how to file certain claims. Each state surveyed posted its Procedural Safeguards Notice on its state education website. (135) Unsurprisingly, almost all of the school districts surveyed also provided access to the Procedural Safeguards Notice through their web site, often simply linking to or including their state's version of the notice. (136) In all, these Procedural Safeguard Notices appear to do little more than the minimum required by law, mirroring the legalistic language of the OSEP model, and it would be surprising if they were a primary source of useful information for language-minority parents. (137)

   2. Translations and Interpreters

      Each of the three states surveyed provided translations of the Procedural Safeguards Notices into at least one language other than English. (138) In each state, some local districts also provide the Procedural Safeguards Notice in more languages than the state does, reflecting their local language-minority populations. (139) For example, while Los Angeles Unified School District's (USD's) ELL population is overwhelmingly Latino, the district makes its notice available in Armenian, Chinese, English, Korean, Spanish, Tagalog, and Vietnamese. (140) San Francisco USD makes its entire web site available in Spanish and Chinese, (141) and it makes an abridged version of the California Procedural Safeguards Notice available in Cantonese, English, Mandarin, Spanish, Tagalog, and Vietnamese. (142) New York City's Department of Education goes even further. Its Parent Guide to Special Education provides that parents "have the right to request your child's IEP and evaluations in your preferred language". (143) The district's special education website states--in English as well as Arabic, Bengali, Chinese, French, Haitian Creole, Korean, Russian, Spanish, and Urdu--that "[t]he school will take whatever action is necessary to ensure that the parent understands the proceedings of the IEP team meeting." (144) These districts were outliers, however, and most others provided significantly less information in languages other than English. Similarly, many of the surveyed school districts provided generic translation through a web-based service such as Google Translate; only a few provided what appeared to be more professional translations in particular languages. (145) This apparent unavailability of other school resources in translation could significantly affect the ability of language-minority parents to navigate the educational bureaucracy and get the help their children need. (146)

      Little information was found regarding the surveyed school districts' in-person interpretation services, although a few districts have addressed this issue by providing translation and interpretation services, or by holding informational meetings in common local languages. (147)

   3. Dispute Resolution Procedures

1. Mediation

   Each state has a slightly different framework for providing the required mediation services. In California, special education mediations are conducted through the California Office of Administrative Hearings (OAH), whose administrative hearing officers serve both as mediators and as triers of fact, but not on the same case. (148) Texas's pool of mediators is mostly drawn from the same rolls as its due process hearing officers. (149) Unlike in California and Texas, where the mediators also perform hearing officer functions, the New York State Education Department contracts its special education mediations to the New York State Dispute Resolution Association (NYSDRA), which has twenty-four Community Dispute Resolution Centers in the state. (150)

   California forbids parties from bringing attorneys to pre-due-process filing mediations. (151) The State Legislature explains this choice as promoting a "nonadversarial atmosphere" and explicitly excludes "attorneys or other independent contractors used to provide legal advocacy services." (152) Attorneys are allowed to participate in mediation conferences scheduled after the filing of a due process complaint, however. (153) By contrast, both New York and Texas allow advocates and attorneys to participate in all mediations. (154)

2. Other Dispute Resolution...