Quality Education for America’s Children with Disabilities: The Need to Protect Due Process Rights

COPAA’s 2017 paper, Quality Education for America’s Children with Disabilities: The Need to Protect Due Process Rights has been published by Child and Family Law Journal, Barry School of Law. The paper rebuts the assertion that due process hearings are a problem and highlights the profound importance of parental rights under the Individuals with Disabilities Education Act (IDEA), including the right to due process. The paper also proposes reforms to make the existing due process system fairer, more accessible, and more effective for protecting the rights of all children with disabilities. 

Background: The Individuals with Disabilities Education Act (IDEA) was passed by Congress to ensure that all children with disabilities are provided a free appropriate public education (FAPE). The IDEA confers rights and remedies designed to ensure that each child has an individualized program of services, modifications, accommodations and supports that enable them to learn and succeed. Parents’ right to be equal partners with the school system is a key feature of the law; safeguarded by the right to file for an impartial due process hearing. A due process hearing occurs when disputes regarding a child’s Individualized Education Program (IEP) cannot be resolved through mediation.

In early 2013, the School Superintendents Association (AASA) published a paper, Rethinking Special Education Due Process proposing to eliminate due process from IDEA. In response, COPAA issued a statement to rebut the shameful attack by our nation's school administrators for issuing an irresponsible, sweepingly generalized and unsubstantiated document that undermines and attacks the civil rights of students with disabilities and their parents. For over 40 years Congress has maintained the important role that parents play in their child's education. In 2004, Congress wisely added new language to the purposes of the Individuals with Disabilities Education Act (IDEA) strengthening the role and responsibility of parents to ensure that families of such children have meaningful opportunities to participate in the education of their children. 20 U.S.C. §1400(c)(5)(B).    (see full statement here)

COPAA rejects any assertion that due process should be eliminated in IDEA. Instead we urge that time and attention be focused on the fidelity of implementation and fully funding of the IDEA.  We also propose reforms to the existing due process system to protect parent participation and the right to due process and to make the hearing process more accessible and effective for protecting the rights of all children with disabilities.

• Due process hearings are exceedingly rare. For every 1,000 students in special education in the United States in 2011, only 2.6 due process hearings were requested, and only 34 for every 100,000 students proceeded to a full hearing and final decision.
  Parental partnership, as well as the threat of due process hearings, has worked well to ensure that children with disabilities have access to public education. The paucity of actual due process hearings can be seen as an indicator of the overall success of this partnership. Still, significant problems remain with the quality of special education, resistance to full inclusion of children with disabilities, and the lack of evidence that outcomes are improving. To hold school systems accountable for strong outcomes and inclusion, and to honor full partnership of parents, due process hearing rights must be maintained in the law.
  
  
• The right to a due process hearing is the only recourse available to parents to offset the imbalance of power between parents and schools systems when the school and district-led process to develop, review, update or refine a child’s IEP breaks down. AASA proposes that parents would resolve any ongoing issues by filing a lawsuit in state or federal court. COPAA rejects this recommendation because it is inefficient due to the time it would take to resolve the matter and ultimately would deny the student of their constitutional right to FAPE. Absent affordable access to review by a neutral decision maker, such as required by a due process hearing, there would be no checks and balances within the system.
  
  

Preserving and Strengthening the Due Process Protections:

1. Restore the right to secure attorneys’ fees when prevailing on a due process action;
2. Place the burden of proof on the school district;
3. Restore the right to reimbursement for expert fees;
4. Require a school district response to a due process complaint;
5. Require equal application of evidentiary rules;
6. Establish a statutory “adverse inference” rule;
7. Enforce the requirement that school districts provide prior written notice;
8. Eliminate two-tier systems; and
9. Encourage new attorneys and law school clinics to provide legal representation of low income families, and increase partnerships with Parent Training Centers, Legal Aid and Offices of Protection and Advocacy.

Fostering Meaningful Parental Participation in the IEP Process:

1. Allow parents to observe their child’s education in progress;
2. Provide parental training; and,
3. Encourage early dispute resolution to reduce the need for parents to request a due process hearing.

While we know we can: improve the IEP meeting process; improve and strengthen the due process protections; and, provide both school personnel and parents better tools to make decisions in support of children with disabilities, COPAA asserts that we must look at the entire system in order to truly improve results for children. The entire due process system is essential to ensure that the civil and constitutional rights of children with disabilities are protected so that the promise of the IDEA can be fully realized and the country can benefit from the full inclusion of individuals with disabilities in the workforce and in society.

When the IDEA works as Congress intended, the results are transformative for students with disabilities. As a result of receiving an appropriate education, millions of students are able to graduate high school, access further education and employment, contribute to this country’s economic growth, and live independent, productive lives. But, without a direct mechanism to enforce it, the IDEA cannot work.

Additional Information 

• S. Almazan, A. Feinstein, D. Marshall, Quality Education for America s Children with Disabilities: The Need to Protect Due Process Rights, 2017, Child and Family Law Journal, Barry School of Law, https://cdn.ymaws.com/sites/copaa.site-ym.com/resource/resmgr/docs/accessible_2017/Quality_Education_for_Americ.pdf
  
• Tulman, Joseph, B., Feinstien, Andrew A., Kule-Korgood, Michele. Are There Too Many Due Process Cases? An Examination of Jurisdictions With Relatively High Rates of Special Education Hearings (Spring, 2015)  University of the District of Columbia Law Review David A. Clark School of Law, Volume 18, Number 2. Available here.

• Weber, Mark C., In Defense of IDEA Due Process (April 16, 2014). 29 Ohio State Journal on Dispute Resolution 495 (2014). Available at SSRN: http://ssrn.com/abstract=2425896

• Special Education: Improved Performance Measures Could Enhance Oversight of Dispute Resolution, GAO-14-390, August 25, 2014 available at www.gao.gov/products/GAO-14-390. 

It is important for Congress to legislatively fix the following Supreme Court decisions in order to protect and strengthen due process hearing rights so parents are on an even playing field and children with disabilities may receive the free, appropriate public education (FAPE) to which they are entitled. Click on the links below to learn more:

• Reinstate Prevailing Parents’ Right To Expert Witness Fees
  Arlington Central School District v. Murphy(2006)
  
  
• Making the Burden of Proof Fair and Equitable
  Schaffer v. Weast (2005)
  
  
• Restoring Attorneys Fees When Parents Settle
  Buckhannon Board and Care Home, Inc. v. West Va. Dep't of Health and Human Resources, 532 U.S. 598 (2001)