Parents says administrative reviews back schools in special education disputes
Many parents and advocates for the disabled say administrative reviews in many parts of the U.S. overwhelmingly back school districts in disputes over paying for special education services. State education departments, which have an interest in keeping down special education costs, typically train or hire the hearing officers. Also, recent U.S. Supreme Court decisions and changes to federal law have made it harder for parents to win cases. Although relatively few disputes between parents and school districts reach the hearing stage, the decisions set ground rules for how much extra assistance districts must provide disabled students, who comprise 14% of all public school students. In recent years, schools have "mainstreamed" more students with disabilities in regular classrooms, hoping to benefit the children through interaction with nondisabled peers while saving money at the same time. The battles reflect tension over the high cost of special education. In 1999-2000, the latest year for which figures are available, national spending on special education reached $50 billion, according to the Center for Special Education Finance, a nonprofit research group. In 2005-06, New York City's public school system alone spent $390 million on private education for disabled students considered unsuited to public school. Such tuition can cost $50,000 a year or more per pupil.
Under the 1975 federal law now known as the Individuals with Disabilities Education Act (IDEA), parents who believe public schools fail to provide their disabled children with a "free appropriate" education may seek redress in a hearing before an independent arbiter. In some states, lawyers or retired school administrators work part-time as hearing officers. Elsewhere, a full-time official handles special education hearings as part of a broader caseload. In New York and Pennsylvania, initial decisions may be appealed to a second tier of administrative review. Once they exhaust these reviews, parents may pursue their case in state or federal court. Administrative review was conceived as a faster and cheaper way of resolving special education wrangles than going directly to court. But school districts soon considered it a financial nightmare. When they lost, they often had to pay not only private tuitions but also parents' legal bills.
In 2004, Congress amended the act to require parents to attend a mandatory "resolution session" with school officials before a hearing. It also allowed a district to recover its legal costs from parents if it wins at hearing and the complaint is deemed frivolous. Two U.S. Supreme Court decisions also lengthened odds against parents. In 2005, the court ruled that parents seeking relief must bear the "burden of persuasion" in hearings. That means when both sides' evidence is equally compelling, the hearing officer should rule in the district's favor. Previously, in about 15 states, precedent or state law placed the burden on districts, says education professor Perry Zirkel of Lehigh University. At hearings, parents rely on expert witnesses, such as child psychologists, to offset testimony from teachers and other school staff. But the Supreme Court ruled last year that, even if parents win hearings, they are unable to recoup witnesses' fees, which often top $100 an hour, from districts. The number of hearings nationwide dropped 31% to 4,170 in 2005-06 from 6,038 the year before. Publicly funded placements in private schools, which had climbed to 73,149 in 2004 from 52,012 in 1996, fell to 71,082 in 2005. A state bill to return the burden of persuasion to districts has passed the New York legislature but hasn't been sent to the governor yet. Many districts are also limiting outside experts' access to classrooms. "A lot of these evaluators are hired guns," says former Reading, Massachusetts special education director Stephen Gannon, who developed that district’s policy on school observations by outside experts.
The federal government does not track the outcomes of administrative hearings. However, in most states that keep statistics, school districts usually win. School board lawyers say they're winning because special education services have improved. Some parents and advocates for the disabled dispute that explanation. A former Pennsylvania hearing officer whose contract was not renewed last year contends in a pending federal lawsuit that the state "instructed hearing officers to selectively apply federal and state guidelines so that they always benefited school districts over parents." The state office denies the allegations. After hearing reviewers in Pennsylvania were accused of bias in another lawsuit, the state overhauled its system for choosing them. Until recently, Pennsylvania had four appeals panels, each with a fixed roster of three administrative judges, to review initial rulings. A suit filed in 2005 by an attorney accused one panel of bias, saying it decided 45 of 47 appeals for districts between August 2003 and August 2005. In May, the U.S. District Court in Philadelphia sided with the attorney, ordering the state to take another look at the case. Around that time, the state dissolved the four panels. Now, a computer randomly assigns three judges to each case and picks which one will write the decision.
Wall Street Journal
By Daniel Golden
[Full story]
[Editor’s Note: Information on the two Supreme Court decisions is available starting from the first two links below. The "mainstreaming" efforts are a result of the legal presumption in the IDEA that students with disabilities are best educated in the "least restrictive environment." Ironically, many legal disputes seek private placements that represent the antithesis of this requirement. The other links below are to resources on the school board’s role in special education that discuss efforts make special education a more collaborative and less litigious process.]
[NSBA School Law pages on Schaffer v. Weast]
[NSBA School Law pages on Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy]
[Leadership Insider on special education]
[Additional online resources on special education]