Reprinted with permission from Leadership Insider, November 2006
© 2006 National School Boards Association. All rights reserved.
Upon signing the new reauthorization of IDEA on Dec. 3, 2004, President Bush noted that when schools are so busy dealing with costly and unnecessary lawsuits, they have less time to deal with students. He remarked that Congress had made the law "less litigious so it could focus on the children and their parents." I was fortunate to be present to witness that occasion, and I welcomed the President’s comments. Upon reflection, however, I question whether we have again missed an opportunity to meaningfully reform the adversarial aspects of IDEA.
The current reality
President Bush was not the first to recognize the tension inherent in the due process system created when the special education law was first passed in 1975 and amended when the law was reauthorized in 1986. Courts and hearing officers have made note of the unusual degree of hostility and bitterness that characterize many due process hearings.
In 1982 a hearing officer from Iowa offered an early observation:
"It never ceases to amaze me how educators and parents can be so close and yet so far apart in doing what is in the best interest of the student. This situation presents an almost classic case. Here, the parents are interested, caring, and dedicated. The educators are no less interested in what is best for [the student]. Yet, personality disputes and disagreements over inconsequential details of an education program have divided the persons most important to [the student’s] future educational development."
A federal court in Virginia, upon reviewing the record of the 1992 case before it, offered how it was "struck by the speed with which the disagreement over Vernon’s IEP was allowed to deteriorate into a wholly adversarial confrontation featuring entrenched, incompatible positions."
Around the same time, another federal judge in New Jersey sadly commented: "It is regretful that this matter has ended up in litigation where the parties are pitted against each other instead of working together. It is difficult to imagine a worse scenario from the point of view of the child."
School districts have not avoided the scorn of the courts when defending their positions to the full extent of the law. In a 1990 case, a South Dakota court wrote:
"As a practical matter, one cannot help but wonder whether or not the act of the school district in filing an appeal for this reason was senseless. For the parties to incur legal expenses which could approximate $25,000 ... in order to save the school district $861 does not strike this Court as a prudent act of stewardship of public funds. ... At oral argument, counsel for the school district, upon being questioned as to the motivation behind the appeal, replied that it was based upon ‘principle.’ The Court finds no worthwhile ‘principle’ involved. The school board and its school administrators must share the responsibility for the decision to appeal."
These are not mild words, and school district attorneys come to realize early on that simple advocacy on behalf of their clients may often be perceived as irrational defense of a frivolous concept in the eyes of a disinterested jurist.
But districts are not alone in being the subject of judicial rebuke for taking adversarial positions. An Indiana federal judge in 1990 wrote of the parents in one case:
"[The hearing officer] testified categorically that the conduct of the plaintiff and counsel in the proceedings before her manifested needless adversariousness. This court is in total agreement. ... It is understandable that when one is confronted with the frustrations of this kind of disability and the attended emotional context, it may well be a human failing that causes one so situated to want to throw all of the rocks that can possibly be gathered at the school officials involved. It is apparent that a good deal of that took place, and it is also apparent that it was unnecessary. That pattern continued in the hearing before this judge. As understandable as same may be, this court does not conceive that the school authorities should have to pay for counsel to engage in needless adversariousness and unnecessarily protracted proceedings."
In 1994, a Texas hearing officer also criticized the manner in which parents handled themselves:
"It appears to this hearing officer that Jimmy’s parents have adopted a hostile and uncooperative stance and are constantly looking for procedural errors upon which to file complaints. This hostile and suspicious attitude is counterproductive to Jimmy’s educational progress."
Still, it is the school district that has ultimate responsibility for delivering the program, enforceable via this system of due process. Any reliance on the part of the school district to excuse its performance based upon the irrational behavior of the parents is likely to fall on deaf ears. As one Pennsylvania hearing officer noted in 1993:
"The district continually relies on the parents’ lack of cooperation as its excuse for its failure to provide an appropriate education. It is undeniable that parental cooperation is an important ingredient of the partnership symbolized by the IEP. Nevertheless, the IDEA and the companion state law puts the responsibility on the school district, and the legislation and regulations provide parents with procedural safeguards, including a due process hearing, to ensure the child’s rights to a free, appropriate public education (FAPE). Parental hostility is relevant to FAPE, but the focus is the district’s responsibility, not the parent’s fault."
How did we get here?
The irony is that the intent of IDEA and its predecessor legislation was to eliminate the need for these types of battles. As the congressional conference committee noted in its report on the 1975 bill:
"Parents of handicapped children all too frequently are not able to advocate the rights of their children because they have been erroneously led to believe that their children will not be able to lead meaningful lives. However, over the past few years, parents of handicapped children have begun to recognize that their children are being denied services which are guaranteed under the Constitution. It should not, however, be necessary for parents throughout the country to continue utilizing the courts to assure themselves a remedy. ... Congress must take a more active role ... to guarantee that handicapped children are provided equal educational opportunity." (emphasis added)
But the real problem may not reside in the emotionality of the issues, the expenditure of limited public dollars, or the behavior of zealous advocates who defend their clients’ positions. The real dilemma may be the very system itself, which was created to assist in obtaining adequate services for students with disabilities but which has placed school and parents into perpetually adversarial relationships.
As the 9th Circuit Court of Appeals noted in a 1994 decision:
"Litigation tends to poison relationships, destroying channels for constructive dialogue that may have existed before the litigation began. This is particularly harmful here, since parents and school officials must—despite any bad feelings that develop between them—continue to work closely with one another. As this case demonstrates, when combat lines are firmly drawn, the child’s interests often are damaged in the ensuing struggle."
Congress recently had an opportunity to truly reform the process and depart from the legalistic model of special education. Efforts to do so, however, were firmly resisted by professional organizations representing teacher groups, as well as the panoply of disability coalitions.
Some reform efforts approved by Congress were notable. Attorneys’ fees can now be awarded against parents and their attorneys when frivolous matters are brought and pursued in bad faith. Procedural errors must actually result in educational harm before they can form the basis of a hearing officer’s finding of fault.
Parents and school district personnel also must sit down in a good faith effort to attempt to resolve matters before a hearing is held. In reality, however, when attorneys are involved, this resolution meeting often has simply deteriorated into another battle over attorneys’ fees.
A better way?
The reform needed to correct the problem the President acknowledged must come from a complete overhaul of the legalistic framework surrounding special education. That will require, perhaps, both parents and school districts to reexamine what might constitute the "due process" each side feels it is owed.
It is noteworthy that Congress resisted attempts to create a private cause of action under the No Child Left Behind Act. Thankfully, the courts have also refused to permit such lawsuits. The true answer in restoring the trust between school and parent lies not in creating more enforceable rights but in rethinking the enforceability mechanism itself.
As Neal and Kirp recognized early on in their remarkably prescient chapter in Kirp and Jensen’s School Day, Rule Days: The Legalization and Regulation of Education (1986), "Legalization betrays a mistrust of schools. It may inhibit the discretion of professionals whose judgment should be exercised creatively on behalf of the child.
According to Neal and Kirp, "Legalization can be a blunt instrument, undermining healthy, as well as malevolent, exercise of discretion. Special education teachers now find themselves as ‘defendants’ in due process hearings ... a marked change from their self-perception as lone advocates for the handicapped child. From the viewpoint of the handicapped, it would be disastrous to alienate this group."
I am not so naïve that I fail to appreciate how difficult it is to put the genie back into its bottle. If Congress is ever to make IDEA less litigious, however, it must undertake a thorough reform of the ability to haul a school district into a hearing. Special interest groups—from advocacy organizations, to school district representatives, to hearing officers—must recognize that the inability to march into court upon the slightest provocation does not signal an end to these rights.
As a hearing officer in Maine aptly noted in a 1996 case, "Somehow this relationship, because of the student, must repair itself and become one of openness, listening, keeping commitments, and trust."
IDEA will come up for reauthorization again in just a few years. Perhaps the legalistic model we have created finally will give way to trust, cooperation, shared responsibility, and understanding between schools and parents. Fundamentally changing the due process system as we know it will go a long way to making that a reality.
Christopher Borreca of Bracewell & Giuliani LLP in Houston is a member of the NSBA Council of School Attorneys.
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