Every day counts: proposals to reform IDEA's due process structure.

AuthorShaver, Elizabeth A.
PositionIndividuals with Disabilities Education Act - Abstract through II. The Debate Continues, p. 143-177

Abstract

It is a core principle of special education legislation that the parents of children with disabilities can challenge the child's educational programming through an administrative due process hearing. Yet for years the special education due process structure has been criticized as inefficient, anticollaborative, and prohibitively expensive. Those criticisms have given rise to widely varying proposals to reform special education due process, proposals that range from adding certain alternative dispute resolution mechanisms to a wholesale replacement of the due process structure.

This article provides a comprehensive analysis of special education dispute resolution. The article first examines the lively debate among scholars and special interest groups about perceived deficiencies of IDEA due process and various proposals to remedy those deficiencies. The article then sets forth the results of a nationwide survey in which over three hundred and fifty special education attorneys voiced their opinions about the current structure and some proposals for reform. Finally, the article recommends certain structural changes to IDEA due process that are designed to improve the efficiency and reduce the cost of special education dispute resolution.

Contents Introduction I. IDEA'S Due Process Procedures A. Early Origins of Special Education Due Process B. Congress Enacts Special Education Legislation C. The 1990 and 1997 Amendments to IDEA D. The Current Due Process Provisions of IDEA II. The Debate Continues A. Current Criticisms of IDEA Due Process B. Common Issues in Special Education Disputes C. Proposals to Reform Due Process 1. IEP Facilitation 2. Public Enforcement of IDEA 3. Voluntary, Binding Arbitration 4. A Radical Overhaul of Special Education Due Process 5. Defending the Current Structure III. The Survey A. IEP Facilitation B. Voluntary Binding Arbitration C. The Resolution Session D. One-Tier v. Two-Tier Structure IV. Recommendations A. Offer IEP Facilitation, But Do Not Mandate Its Use B. Eliminate the Resolution Session in Favor of IEP Facilitation C. Eliminate the Two-Tier Administrative Structure D. Do Not Create Additional Layers in the Structure Conclusion Introduction

The ability of parents to challenge the educational programming of a child with a disability is crucial since every day that a child does not receive an appropriate education is a day of learning that is lost forever. For this reason, it has long been a fixture of special education law that parents are entitled to a due process hearing in which they can advocate for the needs of their child. (1)

A special education dispute should be resolved quickly to ensure that the child receives appropriate educational services at the earliest possible date. (2) An equally important goal is that special education due process is accessible to all children with disabilities regardless of family wealth. Yet critics argue that special education due process currently does not serve these goals, either because of the lack of "collaborative and non-adversarial" means for families and school districts to resolve disputes quickly (3) or the prohibitive costs associated with due process. (4)

In 2004, when Congress last amended the Individuals with Disabilities Education Act (5) (IDEA), Congress found that parents and school districts needed "expanded opportunities to resolve their disagreements in positive and constructive ways." (6) To accomplish this goal, Congress added or expanded alternative dispute resolution (ADR) mechanisms that are triggered once a due process complaint is filed. IDEA now requires the parties to attend a "resolution session" that must take place within fifteen days after a due process complaint is filed, unless both parties agree to waive the session. (7) IDEA also provides expanded opportunities to mediate a special education dispute. (8) Both the resolution session and mediation can delay an adjudicated resolution of the dispute. (9)

Advocacy organizations and scholars contend that, even with these dispute resolution mechanisms in place, special education dispute resolution still is too expensive and time-consuming. (10) School administrators assert that the litigation costs are so high that school districts often agree to provide services not required by IDEA. (11) Advocates for children and parents contend that due process is too expensive for most parents who cannot afford to pay the attorneys and expert witnesses whose participation is essential in a due process hearing. (12)

The continued debate over the structure of IDEA due process has yielded widely varying proposals for reform. Some advocates propose that IDEA should include ADR mechanisms in addition to the resolution session and mediation. (13) Others propose increased governmental enforcement of IDEA'S provisions or expanded low-cost or pro bono legal services for lower income parents. (14) At least one special interest group, the American Association of School Administrators (AASA), has proposed a radical overhaul of due process procedures in which the parties must engage in several mandatory procedures before litigation can be filed. (15) Still others propose that the due process structure essentially remain the same with only modest reforms designed to increase efficiency and reduce cost. (16)

This article explores the merits of these various proposals to reform special education dispute resolution. As part of this exploration, the article includes the results of a survey that asked special education attorneys about the current structure and certain proposals to modify the structure. Finally, the article recommends certain structural changes designed to reduce the expense and time needed to resolve a special education dispute.

Part I of the article provides historical background on special education due process and a description of IDEA'S current due process procedures. Part II of the article describes the ongoing debate about the efficacy and accessibility of due process and the various proposals for change. Part III of the article describes the results of a nationwide survey of special education practitioners regarding the current structure and some of the proposals for change. Part IV of the article recommends certain structural changes to due process procedures.

At the end of the day, regardless of whether the parties use ADR mechanisms to settle a dispute or adjudicate the dispute in a due process hearing, the ultimate goal is to resolve special education disputes quickly and efficiently so that the child's education does not suffer. The IDEA procedures should ensure that every day of school counts for the child.

  1. IDEA'S Due Process Procedures

    1. Early Origins of Special Education Due Process

      Before 1975, federal law did not provide children with disabilities in the United States with the right to attend public school, although some states did provide special education services. (17) In the early 1970s, advocates for children with disabilities won two key cases (18) by drawing heavily from the Supreme Court's opinion in Brown v. Board of Education, (19) in which the Court ruled that racially segregated education violated the Equal Protection Clause of the Fourteenth Amendment. (20) The two landmark cases, Pennsylvania Association for Retarded Citizens v. Pennsylvania (21) (PARC) and Mills v. Board of Education of the District of Columbia, (22) established, among other rights, that parents of a child with a disability would be entitled to "notice" and "an opportunity to be heard" whenever educators made decisions about educational services for the child. (23)

      Robust due process rights were a key focus in both PARC and Mills because then-existing state statutes and school policies allowed school districts to exclude from public school any child deemed "uneducable," without any notice to or input from the child's parents. (24) In PARC, the parties executed a Consent Agreement that set forth very detailed due process provisions. Parents were entitled to receive written notice whenever a school district proposed to initiate or change special education services. (25) The Consent Agreement provided that the notice would:

      * "[D]escribe the proposed action in detail," including, among other things, a "statement of the reasons" for the proposed action and information about any "tests or reports" upon which the proposed action was based; (26)

      * Inform parents of their right to a hearing before any proposed action would take place; (27)

      * Inform parents of their rights (a) to have counsel (or any other person) at the hearing, (b) to review the child's school records, including any tests or reports upon which the proposed action was based, (c) to present any evidence at the hearing, including expert medical, psychological and educational testimony, and (d) to call as a witness any school official, employee, or agent of a school district; (28) and

      * Inform parents of the procedures by which they could pursue a hearing, among other items. (29)

      The PARC Consent Agreement further specified how the hearing was to be conducted. (30) The hearing was to be scheduled between fifteen and thirty days after receipt of the parents' request for a hearing. (31) The hearing officer was to be "the Secretary of Education" or a person designated by the Secretary, but could not be "an officer, employee or agent" of the school district. (32) The hearing officer's decision was to be based "solely upon the evidence presented" and the hearing officer must have found that the proposed change was supported by "substantial evidence" presented at the hearing. (33) The parents had a right to be represented at the hearing and to present any evidence or testimony, including expert medical, psychological, or educational testimony. (34) The hearing officer was to render a decision within twenty days after the hearing, and the decision was to contain "written findings of fact and...

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