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

• Author: Shaver, Elizabeth A.
• Position: Individuals with Disabilities Education Act - III. The Survey through Conclusion, with footnotes, p. 177-208

3. THE SURVEY

   In 2014, I decided to survey special education attorneys regarding the current due process structure and facets of some of the proposals described above. The idea to conduct a survey came from anecdotal conversations with special education attorneys in Ohio about due process. (267) These attorneys opined that the resolution session usually was a waste of the parties' time. They also expressed the view that the hearing officer system in Ohio was deficient in many respects, a view that Professor Ruth Colker outlined in a recent article. (268) These conversations piqued my interest in ascertaining what practitioners thought about the current structure and proposals to change the structure.

   Once I decided to create a survey, I considered the topics that might be covered. I was very interested in obtaining practitioners' views about the effectiveness of the resolution session and in hearing practitioners' views about IEP facilitation. Finally, I wanted to get feedback on both the voluntary, binding arbitration model and aspects of the AASA proposal.

   I also added a topic that has not received a great deal of in-depth attention in the scholarship, namely the relative benefits or costs of a one-tier due process structure as opposed to a two-tier due process structure. (269) Again, it was my Ohio-based focus that caused me to be interested in this topic. Ohio is one of just eight states with a two-tier structure. (270)

   For two reasons, I omitted any questions about the use of mediation to settle special education disputes. First, the use of mediation as a means to resolve special education disputes is so widely accepted that any further amendments to IDEA likely would not address mediation. (271) Second, given all of the other topics to be covered and a concern that the survey would become excessively long, I decided to omit mediation as a topic.

   My target audience was attorneys who are actively engaged in the practice of special education law. (272) I did not quantify the target population of special education attorneys nationwide. Rather, I attempted to reach as many special education attorneys as I could through a variety of efforts.

   First, I contacted nonprofit organizations, including the Education Law Association, (273) The National School Boards Association, (274) and the Council of Parent Attorneys and Advocates. (275) I asked those organizations to distribute the survey to their members, and they agreed to do so, for which I thank them. (276) Second, I contacted individual attorneys whose names and email addresses I obtained by searching websites with lists of special education practitioners. (277) Third, I searched on the Internet to find attorneys who advertised their expertise in special education law. (278) I also reviewed the publicly available special education due process decisions to find the names and contact information for counsel who had represented parties in due process hearings. (279)

   The survey was anonymous, voluntary, and completed online. (280) Survey respondents were able to exit the survey at any time. The survey was designed to obtain both quantitative and qualitative information through the use of both Likert-type questions and open-ended questions with space for the respondents to provide narrative answers.

   Responses were collected between June 23, 2014 and November 18, 2014. Three hundred ninety-three individuals completed the survey. (281) Of that number, 355 respondents had an active practice in education law. One hundred sixty-six respondents indicated that he or she had an active practice representing school districts, boards of education or school personnel, of which ninety-four of those individuals (57%) indicated that 100% of their clients were school-related personnel or entities. (282) Two hundred forty-three respondents indicated that his or her clients were parents and/or children seeking rights under IDEA; one hundred sixteen of those attorneys (48%) indicated that 100% of the clients were parents and children. (283)

   1. IEP Facilitation

      The survey first asked whether the respondents had any experience with IEP facilitation. One hundred seventeen (70.5%) of the school district attorneys indicated that they had experience with IEP facilitation. One hundred forty of the parent-child attorneys indicated that they had experience with IEP facilitation. (284)

      Broken into those subgroups, the school district attorneys were more positive about the use of IEP facilitation as a means to resolve disputes. When asked whether IEP facilitation was a "valuable vehicle to resolve disagreements quickly," and provided with a Likert-type scale, (285) twelve school district attorneys (11%) strongly agreed with that proposition and fifty-two (49%) agreed with the proposition. (286) Twelve school district attorneys (11%) disagreed with the proposition, and four (4%) strongly disagreed with the proposition.

      Of the parent-child attorneys who responded to the same question, just five (4%) strongly agreed with the proposition, while thirty-three individuals (29%) agreed with the proposition. Thirty-three parent-child attorneys (29%) disagreed with the proposition, and another ten (9%) strongly disagreed with the proposition.

      Twenty-six school district attorneys (25%) and thirty-four parent-child attorneys (30%) neither agreed nor disagreed with the proposition, taking essentially a neutral stance on the value of IEP facilitation.

      The use of IEP facilitation as a means to avoid due process received mixed results. When asked if IEP facilitation "often resolves disagreements, thereby avoiding the filing of a due process complaint," just seven school district attorneys (7%) strongly agreed. Thirty-eight school district attorneys (37%) agreed with the proposition. Thirty school district attorneys (29%) neither agreed nor disagreed, twenty-six school district attorneys (25%) disagreed with the proposition, and three school district attorneys (3%) strongly disagreed with the proposition.

      The parent-child attorneys were more negative about the use of IEP facilitation as a means to resolve disagreements and avoid the filing of a due process complaint. Just five parent-child attorneys (4%) strongly agreed with the proposition. Of the remaining parent-child attorneys, twenty-six (23%) agreed with the proposition; twenty-four (21%) neither agreed nor disagreed, forty-eight (43%) disagreed, and nine (8%) strongly disagreed with the proposition.

      The narrative comments provided by the survey respondents were most revealing about their views. Overall, the respondents indicated that IEP facilitation--in concept--could be an effective means to resolve disputes, as noted by the following comments:

      * I think it is an excellent way to resolve disputes. Unfortunately, it is not always enough to resolve the parties[']differences, but when it is, it saves the District money and generally results in a better program for the students. Also, it fosters relationship building, rather than breaking relationships down.

      * IEP facilitation is an excellent way to keep the IEP process on track in terms of coverage of topics, management of time and management of conflicting personalities.

      * IEP facilitation provides a means for parents and school officials to retain some control over educational issues on a local basis, which is where the decisions should be made. It is much less costly than due process hearing litigation and less arbitrary than the agency complaint process.

      * It is particularly useful for those cases where there have been multiple IEP team meetings and personalities have stood in the way in terms of meaningful discussion.

      However, attorneys on both sides of the table agreed that the success of IEP facilitation was highly dependent on the facilitator's skill and training. One parent-child attorney noted: "The idea is a good one and has the potential to work[,] but it is entirely dependent on the individual characteristics of the facilitator." A school district attorney similarly stated: "I strongly believe that IEP facilitation is valuable if the facilitator is trained using a practical, usable approach and knows IDEA requirements well." (287)

      Yet respondents seemed to agree that training of IEP facilitators is currently a barrier to effective use of the procedure. One survey respondent stated: "I do not believe that IEP facilitation is being conducted by highly qualified individuals. The facilitators have not been effective in resolving contentious matters. Their function appeared to be nothing more than conducting the meeting." Another comment was: "I have never encountered any facilitator who has specific training and experience in facilitating IEP meetings. They are 'borrowed' from other disciplines in the hope that their presence will somehow add value to the process. Usually they are superfluous to the process." One individual succinctly stated: "Facilitators need far more training to make the experience valuable." (288)

      Interestingly, there were a few comments from attorneys on both sides of the table indicating that the facilitators demonstrated bias towards one party or the other. A school district attorney stated: "I do not discourage my clients from agreeing to IEP facilitation. However, the majority of reports I receive after the fact is that the facilitator spent most of the meeting trying to convince the District to provide what the family was [sic] requested. My clients often feel that the process is one-sided." A parent-child attorney stated: "Unfortunately, the facilitators I have worked with are often biased, favoring the schools and school districts. Parents sense that bias and then doubt the opinions of the facilitator."

      In addition, both school district attorneys and parent-child attorneys recognized that IEP facilitation could not resolve all disputes, in particular those disputes where the parties have clearly communicated their positions and simply disagree as to the...