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No School Employee May Serve On Hearing Panels, Court Rules

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The U.S. Court of Appeals for the 11th Circuit has ruled that neither state nor local public-education employees may be used as hearing officers in a special-education due-process hearing.

The ruling, which contradicts a 1984 U.S. Education Department guideline on the issue, could lead to additional litigation in states affected by the appellate decision, state special-education directors say.

The case, Mayson v. Teague, was brought on behalf of all learning-disabled students in Alabama. Under P.L. 94-142, the Education for All Handicapped Children Act of 1975, handicapped students who are dissatisfied with their individualized education plans (iep's) can request a hearing.

According to 1982 figures, the latest available from the U.S. Education Department, 1,416 state hearings and 1,166 local hearings were held in the year 1979-80.

The law's implementing regulations say that "a hearing must be conducted by the state educational agency or the public agency directly responsible for the education of the child, as determined by state statute." However, the regulations prohibit a hearing being conducted by "a person who is an employee of a public agency which is involved in the education or care of the child" or "by any person having a personal or professional interest which would conflict with his or her objectivity in the hearing."

Hearing Officials 'Involved'

Robert H. Smith, the lawyer for Lisa Mayson, the plaintiff named in the case, said the suit was initially filed in district court in 1979 after Ms. Mayson and other students complained about the iep's assigned to them and the due-process hearings on their case. At the time, such hearings in Alabama were conducted by two local school-system employees and a university faculty member.

The plaintiffs argued that the hearing panel was made up of people "involved" in their education and thus was illegal under P.L. 94-142. The federal district court upheld that view in its 1983 ruling, as did the appellate court.

The state argued that a person "involved in the education of the child" refers only to officers or employees of the specific school district in which the child is enrolled.

However, the appellate court concurred with the district court that employees of local education agencies, even those not in the child's own school district, should be considered employees of the state; the court held that the "professional interest" of local school-system employees might make it difficult for them to judge the matter objectively, Mr. Smith said.

The court also ruled that university personnel who help formulate state programs cannot sit on due-process hearings.

Court Not Bound

Although the ruling seems to contradict Education Department interpretations of federal regulations, the judge ruled that he was not bound by "administrative rulings" from the Education Department.

Mr. Smith said the ruling there-fore means that "anyone associated with the public schools in the state" cannot be used as hearing officers. He said the court did not make it clear who could participate in a due-process hearing, but he suggested that university personnel who have not participated in formulating state programs could do so.

Charles Coody, an attorney for the state education agency, said the decision "reaches too far, and offers too expansive an interpretation of the impartiality regulations of the statute."

Mr. Coody said the state does not plan to appeal the case.

'Dramatic Impact'

William Schipper, president of the National Association of State Directors of Special Education, said the majority of states use as hearing officers either a pool of education people from other districts or others in some fashion paid by the state.

"If other states or parties in other states go to court and refer to this case, it could have a dramatic impact on the roster and selection of hearing officers," he said. "The irony of this is that if [the case] were left alone to die a quiet death, it would probably affect only Alabama, but the chances are there is somebody out there looking for something like this to challenge the due-process system, and eventually we're going to have a clash of courts."

DeeDee Wells, program specialist for emotionally handicapped children in the office of special education in Florida, which is part of the 11th circuit, said the ruling would not have much impact on her state because Florida has always used lawyers paid by the state expressly as officers for any type of public hearing.

Schooling to 21 Upheld

In another special-education case, the U.S. Court of Appeals for the 10th Circuit has upheld a federal district court's ruling ordering an Oklahoma school district to provide a handicapped child with more than 12 years of schooling.

The court ruled in Helms v. Broken Arrow School District that Carla Helms, a trainable mentally retarded student, was entitled to stay in school until age 21.

Ms. Helms was in special-education classes in a local school until the age of 19, when she was told she would have to leave. Her mother requested a hearing, claiming that Carla had not completed any type of secondary-education program and that she was entitled to schooling until 21 under P.L. 94-142.

The state argued that under state law, the school district was not required to educate handicapped students 18 through 21 years old.

However, the appeals court said that because any nonhandicapped student is entitled to more than 12 years of education, it would be discrimination to deny a handicapped child the same right, according to Tom Price, the lawyer for Ms. Helms.

Ms. Helms, now 22, will complete high school this spring. She spent a year out of school while the case was being tried.

Ronald L. Day, the lawyer for the school district, said the district is planning to appeal the case to the U.S. Supreme Court but declined to discuss on what grounds.

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