Can We Due (Process) Better? By Charles Walters

A few weeks ago, the soon-to-be Dr. Charles Walters wrote a blog for a class I am teaching in Research in Special Education law. It was a fabulous blog post that addressed some of the issues regarding the IDEA’s Due process system. Charlie titled his post “Can we Due (process) Better? The full blog is below:

I’d like to tell you about the time a family approached me with a date in hand for a due process hearing set to take place in one week. Full disclosure: I am not an attorney. At the time, a part of my role at a local Center for Independent Living involved providing assistance to students with disabilities and their families with issues related to education. Most often, this aspect of my work involved helping parents to better understand their rights and navigate complex educational issues. In this particular case, with a hearing date set and the family unable to afford legal counsel, I immediately set to work on finding an attorney that might be able to represent them pro bono. Unsurprisingly, there was nobody willing to take the case on such short notice. This meant that the family now had two options: (1) withdraw their filing for due process or (2) attend the hearing pro se (i.e., on their own behalf without an attorney to represent them).

In a desperate attempt to help, I agreed to help the family prepare for the hearing which involved a claim of discrimination under Section 504 of the Rehabilitation Act and transportation as a related service provided in accordance with the Individuals with Disabilities Education Act (IDEA). The student involved, a wheelchair user in elementary school with an IEP, had fallen from their bus’ wheelchair lift multiple times. Their father insisted that these falls were occurring due to a school-developed protocol for using the bus’ wheelchair lift that was categorically unsafe for the student and the type of wheelchair they used. The child’s pediatrician had advocated for an alternative means for loading, the family had provided the wheelchair manufacturer’s recommendations for an alternative means for loading, and there was a history of falls from the wheelchair lift using the school-developed protocol for loading. The district still insisted on the protocol they had developed. In my naiveté I assumed that the facts of the case were clear and compelling enough to merit a decision in their favor.

I drove to the due process hearing to meet the family and assist them as needed in presenting their case. On the other side of the room in which the hearing was to be held sat the special education director for the school district, a handful of other school district personnel, and a small legal team representing the school district. The next 5 hours were a blur. Rather than a focus on the substance of the case, the attorneys for the district used their knowledge of legal proceedings to run circles around a family that was woefully unprepared to bring the relevant facts of the case to light. Despite my knowledge of special education law and policy, I was of little use to them.

For those unfamiliar with the structure of a due process hearing, they adhere to a form of civil trial in which “each party has the opportunity to make an opening statement, elicit testimony from witnesses, cross-examine witnesses brought by the opposing party, present evidence and exhibits, and make a closing argument” (Cope-Kasten, 2013, pp. 505-506). After the hearing was over and it was clear that there would not be a ruling in the family’s favor, I felt embarrassed, ashamed, and angry. Sure, my pride was bruised, but more than anything, I felt those things for a system that would allow this to happen. If due process was truly supposed to provide families with a recourse for legitimate grievances in special education, why was a family there pro se, facing their child’s school district that had used public funds to retain legal counsel?

Zirkel and Skidmore (2014) characterize the right to a due process hearing as the most central procedural right within the dispute resolution mandates of the IDEA. From an analysis of hearing and review officer decisions from more than 360 IDEA cases between 1978 and 2012, Zirkel and Skidmore found that decisions were roughly split 50-50 between favorable rulings for parents and favorable rulings for school districts. When examining those cases on the basis of attorney representation, however, Zirkel (2014) found that school districts prevailed in 86% of hearing and review officer decisions wherein parents did not have the representation of an attorney. In an analysis of due process hearing decisions in Pennsylvania between 2008 and 2013, Hoagland-Hanson (2014) emerged with similar findings. Of 129 hearings in which parents did not have legal counsel, they received favorable rulings from just over 16% of those hearings.

Zirkel (2014) is careful to caution against inferring that the absence of an attorney is the cause of an unfavorable outcome in a due process hearing. Nevertheless, findings such as these merit a closer look at parents engaging their right to due process that are unable to afford an attorney.

In Cope-Kasten’s (2013) call for a better form of dispute resolution in special education, the author queried, “[i]s due process the best way to guarantee that children with disabilities receive a good education?” (p. 502). It is here that legal scholars are somewhat split. Some argue for reforms to the way in which due process is handled, more specifically in increased parental access to legal representation or expert witnesses to support their due process claims (Hoagland-Hanson, 2014). Others argue that this inherently adversarial system of dispute resolution is beyond fixing, asserting instead the need for a more methodical use of less intensive dispute resolution options like mediation and facilitated IEP meetings (Cope-Kasten, 2013). Perhaps, at minimum, those of us with a stake in special education can come to a consensus that there exist issues of fairness inherent to due process hearings, especially those in which parents cannot afford to hire an attorney.

References

Cope-Kasten, C. (2013). Bidding (fair) well to due process: The need for a fairer final stage in special education dispute resolution. Journal of Law and Education., 42, 501.

Hoagland-Hanson, K. (2014). Getting their due (process): Parents and lawyers in special education due process hearings in Pennsylvania. University of Pennsylvania Law Review, 163, 1805.

Zirkel, P. A. (2014). Are the outcomes of hearing (and review) officer decisions different for pro se and represented parents. Journal of the National Association of Administrative Law Judiciary, 34, 263.

Zirkel, P. A., & Skidmore, C. A. (2014). National trends in the frequency and outcomes of hearing and review officer decisions under the IDEA: An empirical analysis. Ohio State Journal on Dispute Resolution, 29, 525.

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