Making Due Process A 'Do' Process
In an earlier Commentary (" 'Backlash' Threatens Special Education," Aug. 1, 1990), I predicted a possible crisis in special education that would be the result of expanding entitlements and rising costs. A wide spectrum of educators and parents wrote to me after the article appeared, expressing general agreement with my analysis. Many, however, asked the difficult question, "Do you have any solutions?"
Predictions are difficult enough; prescriptions are another matter. The problem I spoke of has multiple facets; I can offer a solution only to the legal aspect. The Education of the Handicapped Act and its amendments, including the 1990 reauthorization which renamed the legislation the Individuals with Disabilities Education Act, represent an experiment in the legalization of education. The experiment is failing to the extent that undue resources are being diverted into litigation.
For example, in one of the many recent special-education cases, a federal appeals court reversed a lower-court judge's refusal to approve a settlement agreement that allocated over $160,000 per year for the placement of a handicapped child. The appellate court ordered approval of the settlement, ruling that the judge had no discretion to reject it based on financial excessiveness.
The courts have interpreted the 1986 amendments to the Education of the Handicapped Act, which provide attorneys' fees to parents who prevail in special-education disputes, as being applicable not only at the litigation stage, but also at the antecedent administrative proceedings called for under the act. As a result, attorneys are becoming increasingly involved in due-process hearings and at the prehearing stages, including even meetings on a student's individualized educational program, where a team of educators and the parents are supposed to collaboratively establish the child's particular program. The increasing involvement of lawyers has helped build an adversarial relationship between parents and school personnel and has resulted in more appeals of decisions. School-district lawyers in some states use full-scale trial tactics, including depositions and pre- as well as post-hearing briefs. On the other side, some parents' lawyers regularly resort to court action solely to collect attorneys' fees, including payment for the time spent on the collection action.
Consequently, a large slice of the typically tight education budget is being spent on transaction costs--time, effort, and money for the process--rather than on the children. In a recent Pennsylvania case appealed to the second administrative level, the cost of merely the transcript of the due-process hearing, without counting fees for attorneys, expert witnesses, and the hearing officer, was $13,000. Similarly, it is not unheard of for a case to drag on in hearings and appeals for years, leaving the meter running for possible tuition reimbursement or compensatory education and sometimes losing sight of the child's present needs altogether.
In the words of a federal appeals court, "the procedures of the E.H.A. are 'ponderous.' "Exhausting these procedures is literally exhausting in terms of resources and spirit. The due-process-heating step is limited in federal regulations to a maximum of 45 days. But in Pennsylvania, one of the leading states in due-process experience, the hearing stage lasts on average 100 days.
My proposed solution is to modify, not eliminate, the experiment. Removing the Individuals with Disabilities Education Act and similar statutes, like Section 504 of the Rehabilitation Act, would clearly and unfairly jeopardize the educational opportunities of children with disabilities. Rather, the legislation and corollary regulation need to be readjusted to reduce the adversarial spirit and the other costs of undue confrontation.
As an illustrative step in the desired direction, I suggest that the Congress and the U.S. Education Department reconfigure the due-process hearing in several ways. Studies by Professor Steven Goldberg of Beaver College and others reveal that due-process hearings, as currently designed and conducted, are ill-suited to resolving educational disputes. Parents and special educators agree that the system needs to be improved, not disbanded. Here are five ways to fix the flaws, all aimed at separating the educational/collaborative and judicial/adversarial parts of the process:
- The due-process-hearing
stage, like grievance arbitration, should be the final one in the
requisite process, except for the occasional case that presents one or
more substantial, unsettled legal questions. For the exception,
judicial review should be de novo, that is, starting anew, thus
eliminating the need for costly transcripts and a second level of
The typical special-education case is what lawyers call "fact intensive;" the outcome will vary depending on the specific circumstances of the individual child. In such cases, the decision is not within the special expertise of judges and does not lead to a precedent guiding the rest of us. The resources of the already overburdened courts should be reserved for the relatively few special-education cases where the issue is legal, such as whether providing clean, intermittent catheterization is a "related service" under the Individuals with Disabilities Education Act, rather than an educational matter, such as determining whether Chris Doe is in an appropriate placement.
- Due-process-hearing officers should be not only impartial but expert, with expertise referring to, as the minimum, special education, not law. The emphasis at this hearing stage should be on the teaching-learning context of the child's problem, not on courtroom-type terminology and tactics. Some states currently use lawyers with no prior training or experience in special education as hearing officers, with compensation at a per-hour rate. One need not wonder about the nature of their hearings and decisions. Although states should continue to have latitude, they should be required to adjust the selection and training process for hearing officers to ensure that such individuals are impartial experts in special education--and that they are regularly updated on pertinent developments in federal and state statutes, regulations, and case law.
- The due-process hearing should be redirected toward problem-solving, rather than fighting and winning. One alternative arrangement that might help, for example, would be to have the participants sit together at a round table, not in the T-shaped configuration that now prevails. A constructive discussion would then be led by the heating officer, rather than trial-type questioning by each side. Another alternative would be to have the parents' designee, the hearing officer, and the school district's designee serve as a tripartite panel asking questions of the various witnesses. The British model of labor arbitration, in which the impartial expert elicits the facts from the various participants in an inquiry, problem-solving mode, would be another possible variation.
- The school district should be prohibited from
being represented at the heating by an attorney unless the parents gave
prompt notification (that is, at least 10 days' notice before the
heating) that they would be represented by an attorney. Without such
notice or a waiver from the other side, neither party would be allowed
to appear with counsel. The advantages of this requirement are that it
would provide for greater parity and reduced legalism.
A variation of this fourth part of my proposal would be to limit the applicability of the attorneys'-fees provision for prevailing parents to the judicial stage, and to substitute instead for the hearing stage a provision requiring districts to provide attorneys' fees for the occasional case that presents one or more substantial unsettled legal issues. This would be regardless of who prevailed. If the district, which has the power of the purse, is convinced that a case is so legally complicated that it needs an attorney for the hearing, let it put its money also where the parents' mouth is.
- The hearing process needs to be expedited; justice delayed is justice denied. The compensation, workload, and training of hearing officers needs to be geared to reducing multiple hearings, postponements, posthearing briefs, and other court-like characteristics. The timeline needs to be strictly enforced, with explicit exceptions for cases that present complicated legal issues or where mediation is actively pursued.
This five-part proposal is not intended as an exercise in lawyer-bashing. All too many jokes scapegoat attorneys for society's ills. The enemy, as Pogo reminded us, is ourselves. We make lawyers and we make the law itself. Both have a legitimate place in the settlement of special-education disputes. But that place is not generally in the individualized-education-program "team," or as a primary player at the due process table.
Vol. 11, Issue 03, Pages 27, 32Published in Print: September 18, 1991, as Making Due Process A 'Do' Process