Why Special Education Due Process Cases Are NOT Full-Blown Lawsuits

School board attorneys have managed to turn special education due process hearings into all-out, scorched Earth lawsuits, as if it was Microsoft vs. IBM.  In fact, they have convinced administrative hearing officers and judges that this is the way it should be.

But Due Process cases are not supposed to be full-blown litigation.  Here are 5 reasons why:

1. Timing.  Most civil lawsuits take more than a year to go to trial; in some states they can take up to 5 years before they go to trial.  This is why IDEA law requires cases to take no more than 75 days from complaint to decision20 U.S.C. §1415(f) (30 days resolution period + 45 days for hearing officer to issue a decision); see also 34 C.F.R. §300.515.  If a special education problem lingers too long, a child is missing out on his/her education.  Can you imagine if a case lasted 5 years?  The child would go from 3rd grade to 8th grade with no help.  Congress never intended this to happen.

2. Discovery. Civil litigation follows the Rules of Civil Procedure, which include discovery (getting documents, asking questions through interrogatories or depositions, and inspections of places).  By contrast, “discovery” in Due Process cases is informal.  In fact, the  hearing is the opportunity to get discovery, not before.  See 20 U.S.C. §1415(h); 34 C.F.R. §300.512.

3. Relief.  If you file a civil suit against someone in a court of law, you are seeking money.  Microsoft wants $10 billion from IBM.  In a special education case, you want your student with a disability to get a Free Appropriate Public Education.  In other words, you want the school to start teaching and being fair to your child.  See 20 U.S.C. §1415(i)(2)(C)(iii) (“shall grant such relief as the court determines is appropriate”); 34 C.F.R. §300.516(c)(3).  [Most courts have interpreted this provision to include an administrative hearing officer.]

4. Executive Branch. Civil lawsuits are conducted in courts of law – that means, the judicial branch of government.  See, e.g., Article III, U.S. Constitution.  Due process cases are conducted by an administrative hearing officer appointed by your state’s Department of Education.  20 U.S.C. §1415(f)(3)(A); 34 C.F.R. §300.511(c).  They are executive branch officers; not a court of law.

5. Fairness.  When two parties battle it out in a civil lawsuit, we presume there is a balance of power between them.  Justice is determined by the evidence.  In special education cases, Congress acknowledged that the parents are at a legal disadvantage20 U.S.C. §1400(d)(1)(b) (“The purposes of IDEA are . . . to ensure that the rights of children with disabilities and parents of such children are protected”); 34 C.F.R. §300.1(b).  Most parents are not lawyers, don’t have any legal training, nor have the financial resources like school districts and state governments.  IDEA attempts to level the playing field.

Conclusion

If the lawyer for the school district involved in your special education dispute is trying to turn your case into Microsoft vs. IBM, fight back against their tactics and let the hearing officer know that due process  hearings are not supposed to be all-out litigation war.

If you need the assistance of an attorney who will push back against these school district counsel tactics, then contact SchoolKidsLawyer.com.

 

New special ed case involving charter schools and attorney’s fees

The U.S. Court of Appeals for the Third Circuit handed down an excellent decision on October 11, 2017 for parents of children with disabilities.  In the case of H.E., et al.  v. Walter D Palmer Leadership Learning Partners Charter School, et al., the Court held and reaffirmed its prior ruling that “success on a claim for procedural relief can constitute a victory ‘on the merits’ that confers ‘prevailing party’ status” allowing the parents an award of attorney’s fees.

Parents had children with disabilities enrolled at Walter D Palmer Leadership Learning Partners Charter School.  The parents had alleged that the charter school was not providing a Free Appropriate Public Education (FAPE) to their children.  The parents entered into a settlement agreement with the charter school whereby the school was to provide the children with compensatory education and contribute towards the parents’ attorney’s fees, but before the school could deliver on the agreement, it closed in 2014.

The parents filed a Due Process complaint against both the charter school and the Pennsylvania Department of Education (PADOE), alleging that PADOE as the state agency was responsible to make good on the charter school’s agreement.  However, the administrative hearing officer dismissed the parents’ case and held that the parents could not go after PADOE and had to get their relief through the charter school’s settlement claims process.

Parents filed an appeal in the federal district court seeking reversal of the administrative hearing officer’s decision plus attorney’s fees and costs for having the fight the battle.  The federal court vacated the hearing officer’s decision and sent the case back to the hearing officer on the issue of compensatory education, but denied the parents’ claim for attorney’s fees because it was a victory on purely procedural matters, not a substantive claim, and therefor they were not “prevailing parties”.

The federal appeals court reversed the federal district court on that basis and said that parents were indeed prevailing parties and entitled to reimbursement of their attorney’s fees and costs.

Thankfully courts are beginning to recognize that these battles are difficult and expensive for parents to bear and their statutory right to be reimbursed for the costs and fees paid to fight these cases when they win should be honored.  It is a re-balancing of the playing field.

The full decision can be downloaded from the Third Circuit Court of Appeal’s website here.  (It is a PDF file)

Is your hearing officer competent?

When a parent disputes a decision made by a school district regarding the special education and/or services of their child, one option is to file a “Due Process Complaint”.  [See Procedural Safeguards, 20 USC 1415(b)(6) and (c)(2).]  When a complaint is filed, the state’s Department of Education assigns the case to an “Independent Hearing Officer”.  20 USC 1415(f)(1)(A).

States differ on who fills the role of Independent Hearing Officer (“IHO”).  In a few states (Pennsylvania, for  example), the DOE appoints dedicated hearing officers to special education matters.  These people tend to be experienced practitioners in special education law, whether lawyers or school psychologists or similar professions.  In several states (New Jersey, Arizona, Wisconsin, for example), the DOE relegates the cases to the state’s version of the Office of Administrative Law.  From there, Administrative Law Judges (“ALJs”) are appointed as the hearing officers of special education cases.

While true IHOs handle only special ed cases, ALJs handle numerous different types of administrative law cases.  The types of cases handled by ALJs include civil service appeals, some workers compensation cases, denials of benefits (such as social security, welfare, disability, etc.), alleged violations of environmental laws, and many others.  In other words, the scope is very wide and ALJs cannot possibly be intimately knowledgeable about the laws in all of those areas.  (Think of it this way, if you have a problem with your knee, do you go to a heart surgeon? No, you go to an orthopedic surgeon.)

The main special education law, the Individuals with Disabilities Education Act (“IDEA”) requires that IHOs meet certain requirements.  “A hearing officer conducting a [Due Process] hearing . . . shall, at a minimum . . . (ii) possess knowledge of, and the ability to understand, the provisions of this chapter, Federal and State regulations pertaining to this chapter, and legal interpretations of this chapter by Federal and State courts; . . . and (iv) possess the knowledge and ability to render and write decisions in accordance with appropriate, standard legal practice.” 20 USC Sec. 1415(f)(3)(A); 34 CFR Sec. 300.511(c).

What all that legal mumbo-jumbo means is that whomever is assigned to hear special education cases should be competent in special education law (IDEA, etc.) as well as in making well-reasoned written decisions.  Many ALJs do not have the required knowledge or experience (or time) to handle special education cases.  In my opinion, the system is broken and the blame lies with the state DOEs.

I have suggestions on how to fix this, but won’t discuss them on this blog (for now, but perhaps in the future).  But one thing you should do as a parent is consult with a special education attorney to determine if you will get a competent hearing officer to hear your dispute.