Right IDEA, wrong time
The case for a more proactive approach to settling Special Education disputes
The relationships between the parents of children with special needs and school districts have become more contentious over the years. Under the Individuals with Disabilities Education Act (IDEA), enacted in 1990 up until its latest reauthorization in 2004, due process filings have increased as parents request more services for their students with special needs. While IDEA has put systems in place to settle disputes before reaching a hearing, including the offer of mediation at the state level, the process continues to be adversarial, costly, and time-consuming.
Under IDEA, Special Education services range from the age of 3 to 22. That 19-year relationship between a family and school district is longer than a lot of marriages and can sometimes require the same level of care to maintain. Since the district is not moving and the parents are not likely to move, it becomes even more imperative to take great lengths to preserve that relationship.
As a former educator and current mediator, I have the unique position of participating in educational meetings from different perspectives. As a former teacher, I observed frequent breakdowns in communication between parents and school districts when determining the individualized services needed for each student. As a mediator, I now attend IEP meetings as the neutral third party to manage and prevent those communication breakdowns that can lead to filing for due process. In this capacity, the goal is to show everyone that conflict does not always have to lead to combat.
This article evaluates the conflict resolution strategies IDEA currently has in place and proposes how a mediator can transform the conflict between a family and school district over special education services that children receive.
In 1975, Congress passed the Education for all Handicapped Children Act, which was renamed Individuals with Disabilities Education Act (IDEA) in 1990. The purpose of IDEA is to mandate that students who are disabled would receive a free and appropriate public education (FAPE) within public schools. The students with disabilities entitled to FAPE must fall within the Act’s definitions of disabled, which provides 13 categories of disability. To qualify, students must show that this disability is adversely affecting the academic progress of the student.
While the law has seen revisions and reauthorizations in 1997 and 2004, there has been a push for more opportunities to resolve disputes over special education services. When a family does not agree with their resident school district’s recommendation for placement, services, or any other component of a student’s IEP, the Act affords the opportunity for the family to challenge school districts for not providing the student with appropriate educational services. Currently, there are five methods of dispute resolution used in special education disputes: (1) an informal meeting, (2) a facilitated IEP meeting, (3) a complaint with the Department of Education, (4) mediation, and (5) a due process hearing. IDEA allows for these different types of resolution, but does not require families or districts to proceed sequentially through the stages. There are instances where families and districts can bypass all other phases and arrange a due process hearing.
Efficiency of due process
The advent of IDEA was a great improvement in the effort to bring parents and schools together for the betterment of the student with special needs. However, the due process hearing has been seen as misguided in relation to the overall goal of the law. According to Beyer (1999), parents that disagree with the educational placement for a student are relegated to challenge the district on procedural error as opposed to the substantive issue of the dispute. As a result, the process can serve to neglect the most beneficial program for the student. To Bayer’s point, Cope-Kasten (2013) comments on the consequences of the drawn-out nature of the due process hearing. By the time a decision is reached, which can take up to several months, the award granted to a prevailing parent might be a hollow victory because of the lack of progress the student made during that time.
Fairness of due process
In one study, Peter Kuriloff (1995) found that parents were equally disappointed with the system whether they prevailed or not. Viewing the system as unfair, they noted that parents might suffer from a dramatic power imbalance, especially when unrepresented by attorneys. In light of the fact that due process hearings are the most legalized form of special education dispute resolution, attorneys are involved more frequently than at any other phase. In light of those views, the due process hearing is seen as a contest of manipulation rather than fair participation that is child-focused between the parents and school.
Goldberg and Kuriloff (1991) noted that the subjective fairness of the due process hearing was lacking. Subjective fairness was measured by whether school districts and parents perceived a fair and balanced hearing process. In their survey, Goldberg and Kuriloff (1991) found that only 41 percent of the parents believed the hearings were completely fair while 35 percent had negative views of the process. Cope-Kasten also argued that looking at the fairness of the due process hearing outcome to the student is highly relevant. It was shown that hearings fail in terms of outcome fairness because the outcomes take place after the educational damage has been done.
Financial impact of due process
While the efficiency of the due process hearing is called into question, another aspect of the due process hearing is its fiscal impact on the parent and school district. As the number of due process hearings increase nationwide, litigation is costing families and school districts millions of dollars (Beyer, 1999; Mueller, 2009). Beyer (1999) asserts that each new due process claim translates to committing more resources to hiring attorneys and experts to defend the district practices instead of allocating those funds to the education of the student with special needs. Beyer goes on to say that “…In a climate of expanding services for children and diminishing fiscal resources for educational agencies, school districts can ill afford to pay the price of due process…” (p. 40).
The cost per hearing can range between $50,000 and $100,000 combined for both the family and school district. This results in school districts and parents spending more than $90 million annually for special education dispute resolution (Mueller, 2009; CADRE, 2008; Congressional Record, 2002). When considering the amount of money spent on due process hearings, the efficiency of the process leaves a lot to be desired. Parents and school districts share a mutual interest in terms of the investment of their time and money. Resources spent on due process are resources not spent on the education of the student (Newcomer & Zirkel, 1999).
Adversarial nature of due process
One of the main criticisms of the due process hearing is the inherent adversarial nature that consumes the process. During the due process hearing, the conflict has moved from a misperception or misunderstanding to a matter of social power, access to resources, and subjective individual values (Fisher, 2006). In positioning parents against school districts, due process hearings create an environment that serves as the greatest obstacle to the effectiveness of a hearing. Along with the administration of the school district, the teachers, psychologists, and other members of district staff are included in the proceedings. Due to the heightened adversarial environment that the hearing provides, the staff can develop feelings of anger and mistrust toward the student as well as suffer untimely burnout from the occupation. In addition, parents can develop feelings of mistrust towards the school district before, during, or after the hearing (Getty & Summy, 2004; Cope-Kasten, 2013).
If the dispute between a parent and district progressed to a due process hearing, the conflict is either of a complex nature or at least one of the parties has demonstrated an unwillingness to cooperate or compromise. In most of those cases, the battle has moved from being about services for the student to the desire to prove a point to district officials or by district officials. Emotions may play a larger role in the conflict than before. As stated by Lindner (2006), “…we react with anger…when we deem that the person who hurt us has sufficient control over the situation and infer that they intended to hurt us” (p. 275). In their study of due process hearings, Goldberg and Kuriloff (1991) interviewed parents who had prevailed in their hearing and the parents maintained that it should not have gone as far as it did. In essence, the failing of the due process hearing is that it does not repair the broken relationships nor resolve the personal battles between the family and the school district.
Is there any hope?
In 2004, a reauthorization of IDEA included mediation as a phase of the dispute resolution process before the due process hearing takes place. In a mediation session, the parties craft their own solution with the assistance of a neutral third party who encourages disputants to come to a mutually beneficial agreement.
Mediation serves to emphasize solving problems instead of affirming rights (Beyer, 1999). The due process hearing is a formal procedure that focuses on whether proper protocol was utilized in the IEP. However, proper protocol does not address the emotional impact of the dispute on the part of the family nor the district. Mediation allows both parties the opportunity to address the educational matters at hand as well as the relationship between all parties involved.
Another argument in favor of mediation in special education disputes is its effectiveness. In looking at the studies on special education mediations in Pennsylvania and California, mediations resulted in agreement between the parties for 86 percent and 93 percent of the cases, respectively (Cope-Kasten, 2013). Further, between 1998 and 2008, the state of Wisconsin saw 78 percent of their special education mediations result in an agreement. As a judge stated, “The availability of mediation has resulted in fewer of these things going to a hearing…which I think is a good thing” (p. 534).
One criticism found of mediation, however, was not the mediation process itself, but rather the point during the conflict in which it is presented. Mueller (2009) states that it may be possible that mediation is “…offered too late to actually make a difference in the resolution of conflict” (p. 62). Cope-Kasten (2013) states that due process hearings are conducted when either the special education issue is too complex or when one or both parties have ceased to communicate with the other. When the issue has reached the point of due process, the focus of the family and district has moved away from the educational benefit of the student and moved toward proving a point. Requiring or threatening due process before utilizing mediation may worsen a dispute that has already taken an adversarial tone.
Ultimately, the timing of the mediation session can turn the perception of the meeting from a collaborative, informal meeting meant for collaboration into a procedural delay in obtaining a formal hearing. The solution must come before the due process filing, where the fiscal and emotional impact has already taken its toll on the relationship.
IEP facilitation has been used as a method of dispute resolution to fill the void between initial conflict and the procedure known as due process. As opposed to the reactive strategies currently in place through IDEA, the facilitated IEP meetings should be a recognized method of dispute resolution in a more proactive approach to preserving the relationship between a family and school district over a child with special needs. Facilitated IEP meetings use an outside facilitator to assist with the overall organization and conduct at the IEP meeting. While the meeting is still run by the IEP team (i.e., parents, teachers, administrator), a facilitator objectively maintains order and focus during the meeting. This setting allows parents and district officials to voice their concerns without escalating to more formal proceedings. IEP facilitation is seen as a more proactive approach to dispute resolution than the other phases due to its specific strategies that allow the IEP team to resolve disputes in a collaborative manner.
Role of neutral facilitator
The role of the facilitator is much like a mediator. While the facilitator is not bound to the professional standards of the mediator, the actions are seen as very similar. This facilitator’s goal is to conduct the meeting between the family and district resulting in a mutually agreed-upon IEP. In addition, the role of the facilitator is to focus on establishing conditions that allow effective communication to occur. Once this communication occurs, the cooperation may generalize and all the members of the IEP team will follow the model that has been set by the facilitator (Krauss & Morsella, 2006). Much like a mediator, the facilitator is not providing any substantive input during the meeting, but rather keeping the group focused on the topic, summarizing what others have stated, and fostering an environment that allows for the exchange of ideas from all team members.
Who should facilitate?
Studies have shown that some school districts may choose to train their own administrators or teachers to facilitate IEP meetings, while others have trained mediators or mental health professionals (Mueller, Singer, & Draper, 2008). In circumstances where there is a brewing conflict between the family and school district, a mediator should be the primary option in facilitating the IEP meeting.
The problem with a district member facilitating the meeting is that it could present as a conflict of interest to the family and result in a sense of mistrust throughout the meeting. In fact, parents have said they feel outnumbered and treated as passive participants in the IEP process. This overall perception of exclusion can lead to further conflict that will lead to more due process hearings.
Support for facilitated IEP meetings has been growing. In 2013, the American Association of School Administrators (AASA) recommended mandating facilitated IEP meetings in IDEA. In Wisconsin, there was an 87 percent satisfaction rate from IEP facilitation participants (district and parent) taken from a seven-year data collection in special education procedures. These statistics demonstrate that the proactive approach that IEP facilitation provides has the potential of saving millions of dollars and, more importantly, the relationship in special education.
A mediator can offer a set of resolution strategies designed to bring parties together to resolve disputes in the simplest, most cost-effective way, thereby avoiding the costly legal fees and the divisive contention that too often accompanies litigated disputes. Most Special Education Local Plan Areas (SELPA) will offer mediation as well as IEP facilitation, which can help parties navigate their way through potentially troubling IEP meetings. The goals of the mediator in special education should be the following:
- Listen and define the problem
- Facilitate communication between the parties
- Help parties frame the issues as objectively as possible
- Connect with each other through conference calls, informal face-to-face meetings, formal IEP meetings, meeting facilitations, and mediation conferences (pre-filing for due process)
- Train and build capacity for effective communication skills for parents and district staff.
Given the length and significance of the relationship between a family and district in regards to special education services, the typical approaches of coercion and avoidance are not acceptable. Mediators can play a role in saving, preserving, or even rebuilding that delicate relationship before the conflict reaches the acrimonious point of due process hearings. It is up to us to show the community that conflict is inevitable, but combat is a choice.
Jason Harper is the founder of Harper Conflict Resolution, LLC. In addition to mediation, he is an alternative dispute resolution (ADR) consultant and trainer. Currently, he is the ADR Consultant for the Los Angeles County Office of Education, providing mediation and conflict resolution services to 12 school districts and 22 charter schools. He has also provided mediation and conflict resolution trainings for the Western Justice Center and the International Visitors Council, training adults from over twenty different countries. He is President-Elect of the Southern California Mediation Association (SCMA) and serves on the Board of Directors for the SCMA Education Foundation.
by the author.
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