Due Process Hearings Research Articles

Influence of COVID-19 in Pennsylvania Rural Schools' Due Process Hearing Decisions

During the COVID-19 Pandemic, rural Pennsylvania Local Education Agencies (LEAs) were found to have failed to properly offer special education services in alignment with the Individuals with Disabilities Education Act (IDEA). The Commonwealth of Pennsylvania ranks among the most litigated states in disputes over the proper facilitation of services as mandated by IDEA. Despite this high volume of litigation, there was no analysis of how being defined as a rural LEA influenced due process hearing officer decisions after the COVID-19 Pandemic. The current study addresses this research gap by reviewing special education due process hearing activity for rural LEAs and comparing activity for the two years before and after the COVID-19 pandemic-mandated office closures. Findings offer guidance on problematic practices by analyzing the relationship between the pandemic and hearing officer ruling outcome, activity frequency before and after the pandemic, and remedies owed by rural LEAs from post-COVID decisions.

Disputes of Assessment and evaluation: An analysis of Connecticut due process hearings from 2020-2022

Between January 2020 and March 2022, there were 20 fully adjudicated due process hearings in the state of Connecticut. Over half of those address disputes regarding assessment and evaluation. In this analysis, I provide an overview of the legal requirements for special education assessment and evaluation as well as look for trends in the decisions of these 11 hearings. The purpose of the analysis is to determine any potential patterns in these recent rulings to learn more about current issues in the state and make potential recommendations for districts desiring to reduce the likelihood of future disputes. Specifically, there were clusters of cases addressing the following topics: evaluator credibility when reviewing disputes about independent evaluations, movement between services received under Section 504 and special education, dismissal of complaints due to case circumstances, and economic-related geographic distribution of cases. Understanding these issues of current dispute provides opportunities for improved practice to subsequently reduce future conflict. Keywords: Due process hearing, evaluation

The Mandate to Provide Expanded Core Curriculum Instruction

Introduction: This study examined potential legal precedent set by holdings in administrative due process hearings where instruction in the expanded core curriculum (ECC) for school-age children was decided. Methods: This study used an analogical reasoning approach. This legal research method includes examining the rule of law, presenting cases for comparison, and applying the fact pattern to predict outcomes of current or future cases. Results: The results demonstrate that the inclusion of the ECC in an Individualized Education Program (IEP) varies from state to state. Only two states have passed legislation requiring instruction in the ECC. These statutes have been referenced in case holdings. Administrative hearings from four different jurisdictions in the United States have held that the ECC must be included in the IEP to some extent. Discussion: The ECC is a critical component of the education of students with visual impairments and must be incorporated in some form within their IEPs. Depending upon the jurisdiction, the ECC may have to be explicitly stated in the IEP, while in other locales it may have to be embedded within the IEP. In some states, specific statutes governing instruction in the ECC form the rule of law. Implications for Practitioners: School administrators and teachers of students with visual impairments should be knowledgeable of the legislation governing the ECC in their state and the legal precedents that have been created in their state. School administrators and teachers of students with visual impairments should carefully consider how the principles of a legal precedent can be applied to situations within their own communities to understand their obligations and likelihood of prevailing in any legal dispute. Finally, parents and students with visual impairments should be aware of the legal precedent created for the ECC in their state and use the dispute resolution process to inform change in their own communities as the families did in these exemplar cases.

Due Process Case Issues for Students With Emotional Disturbance

Due process hearings provide a formal resolution for disagreements that may arise within special education. The purpose of this study was to examine the types of issues that arise in due process cases for students with emotional disturbance (ED). The current study examined select due process hearings during 2014 to 2019 from four states for students with ED as the primary condition. The most frequently occurring issue for students with ED was programing related to the individualized educational program (68.3%). Collectively, both evaluations and disability identification were present in 65.8% of cases. Districts prevailed in approximately 43% of cases, with parents prevailing in approximately 36% of cases; 21% of hearing decisions were split. Limitations, future research directions, and implications are discussed.

M.C. v. Antelope Valley Union High School District (2017): Implications for Special Educators

Five days after the U.S. Supreme Court handed down its ruling in Endrew F. v. Douglas County School District, the U.S. Court of Appeals for the Ninth Circuit issued a decision in M.C. v. Antelope Valley Union High School District. This important decision involved a student who was being served under the Individuals with Disabilities Education Act (IDEA). The student was blind and required a high level of support in all academic areas. The case addressed important issues regarding parental participation throughout the Individualized Education Program (IEP) process and the school district’s obligation to implement the IEP. This column (a) examines this decision by providing the facts of the case, including the decisions at the due process hearing level, U.S. district court, and U.S. Court of Appeals; (b) explores the ruling by the court of appeals decision; and (c) discusses implications of this decision for special education administrators and teachers.

Rights, Wrongs, and Remedies for Inclusive Education for Students with Significant Support Needs: Professional Development, Research, and Policy Reform

The purpose of this article is to respond to the perspectives of Agran and colleagues concerning barriers to general education placement for students with significant support needs from an “on the ground” lens of participation in mediations and due process hearings, as well as conversations with parental inclusion advocates throughout the country. We focus on rights, wrongs, and remedies regarding three key issues: (a) strengthening professional development, (b) conducting and disseminating research on inclusive practices, and (c) reforming policy for stronger implementation and accountability.

Constructing Giftedness in a Due Process Hearing: Deconstructing an Administrative Law Judge’s Decision

The purpose of this study is to explore how a Florida administrative law judge (ALJ) adjudicated the giftedness of one student who was found ineligible to be enrolled in a gifted education program. Specifically, we explore the discourse in an ALJ’s final order to uncover how an ALJ navigates through conflict and deconstructs the conflicting expert opinions and special education state statute on the definition of giftedness and then constructs giftedness from these sources to arrive at the final decision. Utilizing qualitative discourse analysis, we explore what this construction can tell us about the interpretation of the nature of giftedness and what counts as data. Findings in this case suggest that the ALJ gives more weight to experience and expertise.

Judicial Appeal of Due Process Hearing Rulings: The Extent and Direction of Decisional Change

Extending the scope of two exploratory single-state studies, this empirical analysis determined the extent and direction of the outcome change from the impartial hearing officer (IHO) decision to the final court decision for a national sample of cases under the Individuals With Disabilities Education Act. Based on a random sample of 116 published court decisions from 1998 through 2016, the authors identified the rulings for “issue categories,” such as eligibility, free appropriate public education, and tuition reimbursement, in the final court decision and, via its published opinion, the preceding adjudicative levels down to the IHO. The primary finding for the 183 issue category rulings was that 70% had only slight or no change from the IHO to the final court level. Other findings included the following: (a) the net change was higher for states with a second administrative tier, which is a review officer, than for those with only the single tier of an IHO; (b) the net change was also higher for cases reaching the appellate rather than only the trial court level; and (c) the most frequent issue categories were free appropriate public education (55%) and tuition reimbursement (18%), both with a slight net outcome change in the district’s direction.

Individuals with Disabilities Education Improvement Act of 2004 and IDEA Regulations of 2006: Implications for Educators, Administrators, and Teacher Trainers

First we briefly review the reauthorization process. Next we consider the influential effect that No Child Left Behind and two major reports had on Congress when it reauthorized the Individuals with Disabilities Education Act. Third, we discuss major changes to the law. We conclude with an examination of how the law will directly affect special educators, administrators, and teacher trainers. As we address these topics, we caution the reader that (a) courts will clarify many of the provisions, and (b) states will have to change their special education regulations to align with IDEIA. To understand and implement IDEIA appropriately, teachers and administrators will have to monitor these due process hearings, court cases, and state law, regulations, and guidelines.

Seclusion of Students with Disabilities: An Analysis of Due Process Hearings

In the last several years, there has been growing concern about the use of seclusion in schools. Little is known about its use, particularly with students with disabilities. This article presents the findings from an analysis of 26 due process hearings taking place nationwide over a 12-year period containing a description of the use of seclusion. For the purpose of this study, seclusion is defined as “the involuntary confinement of a student alone in a room . . . from which the student is physically prevented from leaving” (Council for Children With Behavioral Disorders, p. 1). Findings from this analysis include the following: (a) students of all ages and both genders with significant cognitive and behavioral disorders were subject to seclusion, (b) the rationale for the use of seclusion did not always involve a safety concern, and (c) students experienced an escalation in behavior upon being placed in seclusion, along with high frequencies and long duration of the seclusion event. Most of the students in the study had physical and mental health conditions that may affect the safety and efficacy of seclusion, and long-term effects of unknown etiology occurred for students in the sample, including transition into more restrictive school settings.

An Analysis of the Role of the Male and Female District Hearing Officers and the Effectiveness of this Role

The Texas Education Code (TEC) contains a provision called “Safe Schools” that holds that students who exhibit discipline and behavioral problems may be suspended from school, removed to a disciplinary alternative education program, or expelled and placed in a juvenile justice alternative education program. The TEC mandates that before students are subjected to these disciplinary measures, each student must be provided with a due process hearing. At most independent school districts (ISDs) in South Texas, the Hearing Officers are responsible for facilitating the due process procedures. However, one problem at hand is that there are no formal guidelines, legal or administrative, that clearly define the case management approaches to be followed by the Hearing Officer. Notably, such approaches can provide guidance to Hearing Officers about the appropriate measures to take in balancing discipline and the educational needs and outcomes of at-risk youths; in respecting and upholding the dignity of the student being disciplined; and in ensuring that such students learn from the consequences of their school violations. Using the single case study approach, this study analyzed Hearing Officers’ duties, effectiveness in carrying out such duties, and whether gender had an impact on their performance.

A Longitudinal Study of Special Education Due Process Hearings in Massachusetts

Of the three formal dispute resolution procedures provided by the Individuals With Disabilities Education Act of 2004(IDEA), due process hearings are the most costly in terms of time, fiscal resources, and impact on relationships between school personnel and parents. This study examined 258 due process hearings held over the past 8 years in Massachusetts to examine the characteristics of students at the center of these disputes, the issues that were addressed in the hearings, and the representation utilized by parents and school districts. The findings from this study indicated that (a) Massachusetts school districts utilized attorney representation and won due process hearings at notably higher levels than parents, and (b) the most frequently addressed issues at due process hearings were Individualized Education Program (IEP) development/implementation and educational program placement, which are issues that represent the core mandate of IDEA to provide a free appropriate public education in the least restrictive environment (34 C.F.R. §300.300, 300.550). The authors present recommendations for policy actions and areas for future research.

Special Education Complaint Resolution: Ohio

This article explores results in Ohio from state complaints filed in special education matters. It concludes that this process, at least in Ohio, tends to yield more favorable results to parents and their children than a due process hearing before a hearing officer. These results are worthy of investigation in other jurisdictions to see if the complaint process is typically more favorable to parents and their children than the hearing officer process.

How the Framers Would Think About Drones: A Framework for Evaluating Proposals to Reform the Obama Administrationns Drone Program

An analysis of Constitutional-era texts, especially the Federalist Papers, reveals that when considering questions of Constitutional structure, the Framers supported or opposed specific proposals in light of three central ideas: 1) the extent of a power must be commensurate with its object, 2) accountability is inherent in structure, and 3) the distribution and promotion of knowledge must be taken into account in structure. In this author’s opinion, applying these three central ideas of the Framers to proposals to reform the Obama Administration’s drone program leads one to favor proposals that feature strong congressional oversight or carefully crafted, Congressionally created, ex-post actions against the government, as well as internal executive branch controls, rather than other proposals, such as ex-ante due process hearings, drone warrants, executive unilateralism, or the extension of the status quo.

Addressing the Gap between Case Law and Professional Practice: A Response to Zirkel

Over the past several years, Zirkel has expressed serious concern over the quantity and quality of articles published within the field of special education reviewing case law, often claiming that many of these scholarly works lack sufficient academic rigor (Zirkel, 2011a; 2011b; 2012; 2014). He contends this is symptomatic in the special education given the limited legal background that both scholars and reviewers within our field possess and that a proper analysis through a careful and impartial legal lenses reveals that the literature of special education falls short in various notable ways (Zirkel, 2014). Zirkel's most recent article, published in this issue of Behavioral Disorders, is critical of an article that reviewed recent case law addressing several areas we believe to be significant in confronting the field of educating students with emotional or behavioral disorders (E/BD; Smith, Katsiyannis, & Ryan, 2011). Although we agree with many of Zirkel's recommendations for improving the overall quality of legal articles in the field of special education, we take issue with his analysis and at times misrepresentation of the article to make his point.Again, we commend Zirkel for his recommendations for increasing the quality of scholarship by (a) having special education journals increase the number of reviewers with specialized legal expertise, (b) encouraging joint efforts between special education organizations (e.g., Council for Exceptional Children) and the Education Law Association, and (c) ensuring authors provide clear disclosures of any partisan perspective they may have on a specific issue. However, although we are in agreement with his recommendations, we find ourselves in disagreement over his findings and the method in which he builds his argument. To begin with, it is critical to identify properly the scope and purpose of the original article in question. Zirkel (2014) claims the article does not adequately serve as either an in-depth legal or literature review. We wholeheartedly agree, especially given it was never intended to do so. As clearly stated in the abstract, the article reviews recent case law for several critical areas of concern to the field today, including: (a) response to intervention (RTI) and child find procedures, (b) required mental health services, and (c) the controversial use of restraint to manage aggressive behaviors (p. 185). Our intent was not to provide a comprehensive review of case law in each of these topics in a manner appropriate for a law review intended for legal experts, especially given the fact that legal experts are not the audience of Behavioral Disorders. Instead, we aimed to inform the readership, which primarily entails special education researchers and practitioners of recent legal developments, and point to emerging trends and variability of issues involved.Perhaps the nexus of our substantive disagreements with Zirkel arises from his view of the field from a purely legal perspective, specifically his contention that only seminal cases from the highest courts matter, given that these carry the greatest significance. Although it is obvious, as a matter of law, the relative influence of appellate courts versus lower courts (indeed, administrative due process hearings) with regard to precedence, we believe that practitioners will be well served to have exposure to emerging issues (often decisions by hearing officers and lower courts). We also disagree with his notion that our field will benefit from legally pure articles that offer nothing beyond straight reporting of legal findings (as he often does in his articles) and leave the heavy work of drawing implications to the reader. Instead, we believe that providing the appropriate context and linkages that inform and indeed advance educational practice is most useful to researchers and practitioners in education.We are, however, confounded by his claim that our identification of critical con- cerns to the field of educating students with E/ BD was questionable. …

An Examination of Special Education Due Process Hearings

Due process is a key dispute resolution feature approved by Congress in accordance with the Individuals With Disabilities Education Act, whose goal is to facilitate resolution and minimize conflict. Nonetheless, despite 35 years of use, due process has become a difficult emotional and financial problem. Consequently, there is a need to evaluate due process and develop less adversarial resolution practices. The goal of the study herein is to place in perspective a descriptive analysis of 575 due process hearings that occurred in 41 states in 2005 to 2006 by analyzing the petitioner, disability, dispute, and outcome including hearings of specific learning disabilities (26%), autism (20%), and health impairments (15%). The most common sources of dispute were placement (25%) and Individualized Education Program and program appropriateness (24%). Parents initiated 85% of the hearings, but school districts prevailed in 59%. Interestingly, the majority of states lacked easy retrieval and consistency with reporting their own published hearings.

Privileged Advocates: Disability and Education Policy in the USA

Since the establishment of educational rights for children with disabilities in the 1970s, special education in the US has included a growing share of students and has constituted an ever-growing share of education budgets. Previous research has focused on the disproportionate assignment to special education of low-income and minority students, concluding that special education mainly reproduces social disadvantages. This article argues that privileged parents – by virtue of their ability to navigate complex legal and scientific practices and discourses that are seen as guarantees of fairness and neutrality in special education – are able to secure advantageous resources for their children through special education. Through analysis of the distribution and content of ‘due process' hearing requests in the California special education system, this article shows how advocacy in this part of the system depends on parents' cultural and economic capital. Specifically, reimbursement claims in due process hearings show how having economic capital can be used to leverage public education resources, while parents' testimony in hearings shows the importance of having cultural capital. In concluding, the emphasis on parental involvement in both regular and special education is discussed and alternatives to the individualized system of rights in special education are considered.

Due Process Hearing Systems Under the IDEA: A State-by-State Survey

The primary mechanism for dispute resolution under IDEA (Individuals with Disabilities Education Act) is a due process hearing. The total number of adjudicated hearings under IDEA has dropped from the high level during the latter part of the 1990s and the early part of the current decade. Yet relatively few jurisdictions, led by the District of Columbia and New York, account for the overwhelming majority of these decisions. This article presents the results of a state-by-state survey of the hearing officer system. This current “snapshot” identifies the key features, including (a) whether the system is one-tier or two-tiered; (b) whether the IHOs are part-time or full-time; (c) whether their legal background is primarily in law or special education; (d) which agency assigns them and its procedures for the assignment; and (e) what is the updated volume of adjudicated hearings—i.e., those conducted to completion resulting in a written decision.

Dysphagia Services in Schools: Applying Special Education Requirements to a Health Service

Abstract School speech-language pathologists and districts frequently need guidance regarding how the legal provisions of special education affect the needs of children with dysphagia. This article reviews key principles of special education that guide eligibility determination and provision of services to all children. In the eligibility process, the school team would determine if the child's disability has an adverse effect on his/her education program and if the child needed special education (specially designed instruction) and related services. Dysphagia services would be considered a related service, a health service needed for the child to benefit from specially designed instruction. The article concludes with recommendations for practice that stem from a review of due process hearings and court cases for children with disabilities that include swallowing.

Legal Eligibility of Students with Learning Disabilities: Consider not only RTI but also § 504

To encourage dialogue among professionals, this occasional feature is a forum for the opinions, ideas, and work of a variety of constituents concerned about learning disabilities. For criteria and submission guidelines, please visit www.cldinternational.org and select Publications. The modern history of the legal protections for students with learning disabilities in K-12 education focuses on the Individuals with Disabilities Education Act (IDEA), which is funding legislation with detailed accompanying regulations that, respectively, are periodically revised as part of the reauthorization process. In contrast, Section 504 of the Rehabilitation Act ([section] 504), which dates back to 1973, and its sister statute, the Americans with Disabilities Act (ADA), have played a rather distant secondary role for students with learning disabilities specifically (e.g., Zirkel, 2006) and students with disabilities generally in elementary and secondary education (Zirkel, 2004). The current focus on response to intervention (RTI) exemplifies the seeming primacy of the IDEA in terms of the legal eligibility of students with learning disabilities and, thus, their entitlement to substantive treatment, such as individualized appropriate education, and procedural protections, such as complaint resolution investigations and impartial due process hearings. Yet, the literature in the field has largely failed to recognize the emerging significant impact of [section] 504 that results from the recent Americans with Disabilities Act Amendments (ADAA). This article provides a brief overview of the respective roles of RTI under the IDEA and [section] 504 as a result of the ADAA in terms of the legal eligibility and, thus, entitlement, of students with learning disabilities. RTI UNDER IDEA Thus far, although the literature is replete with promotion of and debate about RTI (e.g., Burns, 2007; Fuchs & Deshler, 2007; Gresham et al. 2005; Kavale, 2005), the legal effect has been relatively slow in taking shape. As explained in more detail elsewhere (e.g., Zirkel, 2008), the most recent reauthorization of the IDEA and its resulting regulations expressly permit but do not require RTI, while changing the status of the severe discrepancy approach from mandatory to either permissible or prohibited, with the ultimate choice left initially to the state level. Thus far, only a handful of states have elected to mandate RTI and prohibit severe discrepancy, with the vast majority instead opting to delegate the choice to the local level (Zirkel & Krohn, 2008). As a result, the case law, which consists of published hearing/review officer and court decisions under the IDEA concerning eligibility for the classification of specific learning disability (SLD), continues to hinge on the severe discrepancy approach. More specifically, the case law prior to the effect of IDEA 2004 reflected a pronounced tendency to uphold district decisions of SLD noneligibility based on either the lack of preponderant proof of (a) severe discrepancy or (b) the need for special education (Zirkel, 2006). The latest case law continues the same trend. For example, there have been 10 subsequent and pertinent published decisions, and RTI was only mentioned in one case, where the hearing officer displayed confusion about it and in any event where its role was of no consequence (High Tech Middle Media Arts School, 2007). All but one of the cases, which had an inconclusive outcome (E.N.v. Pajaro Valley Unified Sch. District, 2008), were in favor of the defendant district based on lack of severe discrepancy and/or the need for special education (e.g., Hood v. Encinitas Union School District, 2007; Jaffess v. Council Rock School District, 2006; M.P.v. Santa Monica-Malibu Unified Sch. District, 2008; S. v. Wissahickon Sch. District, 2008). In the relatively few states that have mandated replacing severe discrepancy with RTI as the approach for determining SLD eligibility under the IDEA, with the understanding that the evaluation must be based on a variety of sources, the litigation is still only in the gestation stage. …