Miriam Kurtzig Freedman

Miriam Kurtzig Freedman

In the long saga of education reform, with all its talk, writing and activity, Special Education has been largely on the back burner. Reformers seemed agape 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 organisation of public school administrators placed reforming special instruction 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 understanding about the Individualized Education Program (IEP) for a educatee with a disability, federal and country laws provide several dispute resolution options, including a due process hearing. At a hearing, both sides can bring witnesses, call on outside experts, and take their example heard past an independent hearing officer who will render a decision. The party that does not prevail can entreatment that conclusion to a country or federal court.

The due process organisation was established in 1975 equally part of the nation's offset special education constabulary. Withal, this organisation comes with significant costs (in money, emotion, time and pressure to comply with burdensome regulations) that create fearfulness of litigation in schools and confusion and anxiety amongst parents.

To address these problems, AASA hopes to "spark a thoughtful, new dialogue almost the need for critical changes to the special teaching dispute resolution system." The written report contends "modifications to the current due process arrangement could greatly reduce, if non eliminate, the burdensome and oft costly litigation that does not necessarily ensure measurable educational gains for special didactics students."  While I concur such a dialogue is long overdue, I do question some of the report's arguments, information and opinions.

AASA recommends that a special educational activity dispute betwixt a school and parents be resolved through these four steps:

  1. A facilitated IEP Team meeting. A neutral third-political 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 choice is available after a dispute arises nearly the IEP that has been developed. Parents and school representatives meet with a mediator to piece of work to reach an agreement.
  3. The AASA's recommended innovation—the consultant IEP process—to resolve disputes. A consultant that both parties concord 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 plan; and so on. Within 21 days, the consultant writes the study for the plan to meet the child'due south needs, which the parties are bound to implement for a specific time period. After that time, they may proceed to selection 4 below.In all three steps—whether using a facilitator, mediator or consultant—the country provides this service to the parties.
  4. If the dispute remains unresolved, parties tin can litigate in court.

Note that all steps simply the third ane already exist. Through these steps, the AASA recommends the emptying of due process

In its 3rd step—the consultant IEP process—the AASA specifically cites SpedEx as a model. It is the dispute resolution choice developed in Massachusetts (where I am a school attorney and a co-founder of Special Instruction Mean solar day). It differs in several key ways from the AASA proposal and has slap-up potential for other states, including California.

SpedEx helps schools and parents resolve their own disputes in a kid-focused, trust-building, efficient (30 days), free-to-the-parties way. Parties practice not waive due process rights and may pursue them. Indeed, one early on example that proceeded under SpedEx's prior rules, which were later revised, did stop 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 to the lowest degree restrictive surroundings. To go started, both parties have to agree voluntarily to use SpedEx. They then take to concur on which consultant the state will hire for their dispute. Later, if they concord with the consultant'due south report and develop an accepted IEP, SpedEx provides that the consultant can observe the student in the accepted program. The experience with SpedEx and then far, with 17 cases, is that parties are generally pleased with the process and results, and practise not pursue due process thereafter.

Nether the AASA proposal, the consultancy approach would not be voluntary. Parties would exist jump to implement the consultant's report for an agreed-upon time, after which they could seek courtroom activity (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 nosotros follow the "dinosaur approach" to ready special education's dispute resolution mess by creating several attractive options, such equally SpedEx, so fewer people resort to hearings. We don't demand to eliminate hearings per se (probably not a winnable argument anyhow) to fundamentally fix the arrangement. 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 fourth dimension away from educational activity and learning; second, by creating better options to assistance parties resolve their disputes.

•••

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 yr between Boston and Palo Alto, where she has been a Visiting Fellow at Stanford Law Schoolhouse. For more information and her weblog, visit world wide web.schoollawpro.com.

To become more reports like this 1, click here to sign up for EdSource'south no-price daily e-mail on latest developments in didactics.