Miriam Kurtzig Freedman

Miriam Kurtzig Freedman

In the long saga of education reform, with all its talk, writing and action, Special Education has been largely on the back burner. Reformers seemed afraid to touch it—until now.

The American Association of School Administrators (AASA) recently issued a ground-breaking and controversial report, Rethinking Special Education Due Process. In doing so, this national organization of public school administrators placed reforming special education due process squarely on the reform agenda—a huge step forward. I applaud them for it.

Currently, when schools and parents cannot come to an agreement about the Individualized Education Program (IEP) for a student with a disability, federal and state laws provide several dispute resolution options, including a due process hearing. At a hearing, both sides can bring witnesses, call on outside experts, and have their case heard by an independent hearing officer who will render a decision. The party that does not prevail can appeal that decision to a state or federal court.

The due process system was established in 1975 as part of the nation’s first special education law. However, this system comes with significant costs (in money, emotion, time and pressure to comply with burdensome regulations) that create fear of litigation in schools and confusion and anxiety among parents.

To address these problems, AASA hopes to “spark a thoughtful, new dialogue about the need for critical changes to the special education dispute resolution system.” The report contends “modifications to the current due process system could greatly reduce, if not eliminate, the burdensome and often costly litigation that does not necessarily ensure measurable educational gains for special education students.”  While I agree such a dialogue is long overdue, I do question some of the report’s arguments, information and opinions.

AASA recommends that a special education dispute between a school and parents be resolved through these four steps:

  1. A facilitated IEP Team meeting. A neutral third-party facilitator is brought in to help the parents and school personnel develop the IEP. If this fails …
  2. Voluntary mediation between the school and parents. This option is available after a dispute arises about the IEP that has been developed. Parents and school representatives meet with a mediator to work to reach an agreement.
  3. The AASA’s recommended innovation—the consultant IEP process—to resolve disputes. A consultant that both parties agree upon is brought in to develop the plan for the child. The consultant may review relevant documents; interview parents, school personnel and the student, if appropriate; observe the program; and so on. Within 21 days, the consultant writes the report for the plan to meet the child’s needs, which the parties are bound to implement for a specific time period. After that time, they may proceed to option 4 below. In all three steps—whether using a facilitator, mediator or consultant—the state provides this service to the parties.
  4. If the dispute remains unresolved, parties can litigate in court.

Note that all steps but the third one already exist. Through these steps, the AASA recommends the elimination of due process

In its third step—the consultant IEP process—the AASA specifically cites SpedEx as a model. It is the dispute resolution option developed in Massachusetts (where I am a school attorney and a co-founder of Special Education Day). It differs in several key ways from the AASA proposal and has great potential for other states, including California.

SpedEx helps schools and parents resolve their own disputes in a child-focused, trust-building, efficient (30 days), free-to-the-parties way. Parties do not waive due process rights and may pursue them. Indeed, one early case that proceeded under SpedEx’s prior rules, which were subsequently revised, did end up at a hearing. Notably, none has since then.

SpedEx is available to resolve disputes about the child’s proposed IEP to assure that it provides the child with a free appropriate public education in the least restrictive environment. To get started, both parties have to agree voluntarily to use SpedEx. They then have to agree on which consultant the state will hire for their dispute. Later, if they agree with the consultant’s report and develop an accepted IEP, SpedEx provides that the consultant can observe the student in the accepted program. The experience with SpedEx so far, with 17 cases, is that parties are generally pleased with the process and results, and do not pursue due process thereafter.

Under the AASA proposal, the consultancy approach would not be voluntary. Parties would be bound to implement the consultant’s report for an agreed-upon time, after which they could seek court action (not a due process hearing). I disagree. I believe a consultant approach should be voluntary and not eliminate due process hearings. How else can we build trust?

Instead, I suggest that we follow the “dinosaur approach” to fix special education’s dispute resolution mess by creating several attractive options, such as SpedEx, so fewer people resort to hearings. We don’t need to eliminate hearings per se (probably not a winnable argument anyway) to fundamentally fix the system. We are already seeing a decline in the number of hearings nationwide. Rather, as the dinosaurs did eons ago, let’s help hearings become extinct in two ways: First, by eliminating many burdensome regulatory requirements that create the fear of litigation and confusion, taking precious time away from teaching and learning; second, by creating better options to help parties resolve their disputes.

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Miriam Kurtzig Freedman, author of Fixing Special Education, is an attorney, writer, consultant and authority on special education. She is of counsel to Stoneman, Chandler & Miller LLP in Boston. She divides her year between Boston and Palo Alto, where she has been a Visiting Fellow at Stanford Law School. For more information and her blog, visit www.schoollawpro.com.

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