Looking Ahead at Special Education Disputes
June 28, 2016
Within the next few years, Congress is like to consider reauthorizing the Individuals with Disabilities Education Act (IDEA). Of course, the IDEA is not an expiring authorization and there is not really a need to reauthorize it. Indeed 20 U.S.C. §1409(i)(9) authorizes appropriations for “such sums as may be necessary for fiscal year 2012 and each succeeding fiscal year.” Nevertheless, various school board organizations are gearing up for reauthorization. The American Association of School Administrators (AASA) has made dilution of the due process hearing protection its leading cause. AASA has published a paper entitled Rethinking Special Education Due Process: A Proposal for the Next Reauthorization of the Individuals with Disabilities Education Act. AASA proposes eliminating the due process hearing and substituting a process of facilitation, mediation, and, if all else fails, civil litigation. Similar proposals have already surfaced in the Connecticut legislature. The Council of Parent Attorneys and Advocates (COPAA), the nation’s leading organization fighting for quality education for children with disabilities, has drafted a response, both dissecting the AASA plan and explaining the benefits of the current due process system, See, https://copaa.site-ym.com/news/121292/AASA-Document-Nothing-More-Than-A-Shameful-Attack-on-Parent-and-Student-Civil-Rights-.htm.
My purpose in writing this blog is not to repeat what COPAA (with my assistance) has already said. Rather, let’s take a step back and consider the underlying dynamic. On the one side, we have parents who know their child best and who want the best for their child. On the other side, we have a large school bureaucracy, staffed with many competent and well-meaning professionals, but run by administrators who are acutely conscious of budgets and the stifling array of legal restrictions on public education. In fact, many of those legal restrictions, passed in the name of accountability, have fundamentally altered education. Instead of education having to do with an intense one-to-one relationship of respect and support between teacher and student, education has become an aggregate exercise, where performance is adjudged by average student performance and where testing and data have supplanted learning and achievement as the hallmarks of success. Some teachers choose to become special educators because individual attention is still valued in special education, but only by comparison. Perhaps more to the point, special educators frequently suffer from the arrogance of insecurity. Look, when we are confident in our competence, we usually do not get highly charged when someone questions our ability. But, when we have insecurity about our knowledge or expertise, we tend to become emotional and defensive. And that plays out in planning for a child’s special education program. Thoughtful special educators know that teaching methods imposed on them – Discrete Trial Instruction, Contingency Based Behavior Systems, Wilson Reading System, Social Stories – work for some children and not for others. They know that one size does not fit all, that each child is an individual, and that they do not have all the answers. But, when sitting in an IEP Team meeting, confronted with criticism by parents and their advocates, they naturally become defensive and arrogant, claiming to have a level of certainty that they do not possess. Parents, on the other hand, have their own emotional monkeys on their backs. Having a child with a disability imposes a level of anger, guilt, anxiety, and hope that is unknown to other parents. Such parents love their children and feel guilty for hoping they were typical. Some are inclined to blame others, and the school is an easy target. Some have unrealistic expectations and others feel better by exaggerating their child’s disability. While those issues are real, the underlying truth is that parents know their children better than anyone and want them to grow up to live as independent, productive, and fulfilling lives as possible. And they are going to champion their children. Given these forces, conflict is not only possible, it is likely, appropriate, and, perhaps, even desirable. School officials will propose programs that work for them, by being affordable, consistent with the approaches in place, and driven by school staff. Parents will push for extraordinary efforts to educate their extraordinary kids. This conflict will get played out at some level. Due process hearings, which the IDEA established as the ultimate decisional forum, are extremely lengthy. I just completed a 14-day hearing, with over 300 exhibits totaling thousands of pages. The request for due process was filed in September and the hearing officer decision is expected in mid-July of the following year. My staff and I have devoted hundreds of legal hours to the matter and I am sure the Board’s attorney has devoted similar time and effort. The costs involved are many times the cost of the program in controversy. Critics of due process are not wrong when they say it is costly and time-consuming. There is good news in this. The time and fortune that needs to be invested in due process hearings forces both sides to settle their disputes through negotiation and mediation. For me, I have settled over 95% of the due process hearings I have filed prior to the first day of hearings. I suspect the national statistics are similar. Still, there is another, better solution. The vast, vast majority of disputes I see are ones in which the parent does not feel heard, listened to, or taken seriously by the school staff at IEP Team meetings. The parent enters the IEP Team meeting alone, or sometimes with an advocate, to face ten or fifteen school staff, who have met beforehand and have determined what they will propose. Suffering from the arrogance of insecurity, school staff react dismissively to questions, proposals, and criticisms from the parent. Using their numbers and the specialized vocabulary of professional educations, they will shut down the parent. Many parents feel overwhelmed and will retreat, hoping that the school staff is right. A few will fight back, some going all the way through a special education due process hearing. The solution is, of course, to change the atmosphere at IEP Team meetings. A culture of mutual respect, thoughtful listening, and openness to the ideas of the other side would significantly reduce the number and intensity of conflicts that need to move forward to a due process hearing. It may also be a good idea to excuse much of the school staff after they make their reports and to have the program worked out on a one-on-one basis between the parent and the special education teacher. It is simply too much to ask a single parent to take on a football team number of school personnel. Again, one size does not fit all and this culture of mutual respect, thoughtful listening, and openness will not eliminate all due process hearing requests. Still, this culture is what the framers of the IDEA had in mind when they created the system and set as a goal “strengthening the role and responsibility of parents and ensuring that families of such children have meaningful opportunities to participate in the education of their children at school and at home.”