In the long saga of education reform, with all its talk, writing, and action, special education has been largely absent. It stayed on the back burner. Reformers seemed afraid to touch it. Until now.

The American Association of School Administrators (AASA) just issued an important, ground breaking, and controversial report, Rethinking Special Education Due Processhttp://www.aasa.org/headlinecontent.aspx?id=27966&showcontent=1

The AASA, the national organization of general and special education public school administrators, placed reforming special education due process squarely on the reform agenda—a huge step forward. I applaud them for it.

AASA hopes to “spark a thoughtful, new dialogue about the need for critical changes to the special education dispute resolution system.” I agree such a dialogue is overdue, even though, in the spirit of dialogue, I question and don’t necessarily support some of the report’s arguments, information, and opinions.

The report contends “modifications to the current due process system could greatly reduce, if not eliminate, the burdensome and often costly litigation that does not necessarily ensure measurable educational gains for special education students.” And, I would add the pervasive costs (in money, emotion, time, and pressure to comply with burdensome regulations) that create fear of litigation in schools and confusion and anxiety among parents.

Specifically, the AASA recommends that a special education dispute between school and parents be resolved through the following four steps: first, facilitated IEP meeting; second, optional mediation; third,  consultant IEP process; finally, if the dispute remains unresolved parties can litigate in court. Note that the first, second, and fourth steps already exist. The AASA recommends the elimination of due process hearings.

In its third step—the consultant IEP process—the AASA specifically cites SpedEx, the Massachusetts dispute resolution option. See page 23 of the report.  http://spedexresolution.com/  FYI–here’s more information about SpedEx.

Since 2009, SpedEx has been piloted as a successful, state-funded, voluntary dispute resolution option. Briefly, SpedEx helps schools and parents resolve their own disputes in a child-focused, trust-building, efficient (30 days), free-to-the-parties way—without waiving due process rights. The use of SpedEx is limited to the issue of the child’s proposed IEP (Individualized Education Program) of services and placement. It is designed to assure that the IEP provides a free appropriate public education (FAPE) in the least restrictive environment (LRE). To get SpedEx started, both parties have to agree on which consultant the state will hire for them—a first step in the trust-building process. Later, if they both agree with the consultant’s report and develop an accepted IEP, SpedEx provides an opportunity for the consultant to observe the student in the accepted program. I believe that SpedEx has great potential for other states.

To start the conversation, the AASA proposed and provided details of its own consultancy approach.  In the spirit of dialogue, let me add one of several concerns I have about its proposal. The AASA’s proposal is not voluntary and parties are bound to implement the consultant’s report for an agreed-upon time, after which they can seek court action. I believe a consultant model should be a voluntary option, without eliminating due process hearings thereby.

 

Instead, how about we follow what I call the ‘dinosaur approach’ to fix special education’s dispute resolution mess? Let’s create several attractive options, such as SpedEx, so fewer and fewer people resort to due process hearings. Already, there’s a decline in the number of hearings nationwide. We don’t need to eliminate hearings per se (probably not a winnable argument anyway) to fundamentally fix the system. Rather, as the dinosaurs did eons ago, let’s help hearings become extinct in two ways: (1) by eliminating many burdensome requirements that create the fear of litigation and confusion, taking precious time away from teaching and learning, and (by) by adding better options for parties.

One more thing.  The AASA report assumes that private enforcement due process hearings should continue.  I believe it may be time to question that assumption in a larger dialogue about fixing special education, beyond substituting one dispute resolution mechanism for another. But, let’s leave that for another day.

For now, the AASA has done an important public service in starting the national conversation about fixing special education due process. I applaud the AASA for doing so.  There is no doubt that together we can create better solutions to serve all students in our schools.   Let the dialogue begin!

 

About Miriam

Miriam Kurtzig Freedman, JD, MA—an expert in public education, focused on special education law— is a lawyer, author, speaker, consultant, and reformer. For more than 35 years, Miriam worked with educators, parents, policy makers, and citizens to translate complex legalese into plain English and focus on good practices for children. Now, she focuses her passion on reforming special education, with her new book, Special Education 2.0—Breaking Taboos to Build a NEW Education Law. Presentations include those at the AASA Conference, Orange County (CA), Boston College (MA), CADRE (OR), and the Fordham Institute (DC). Her writings have appeared in The Wall Street Journal, Education Week, Education Next, Hoover Digest, The University of Chicago Law Review on line, DianeRavitch.net, and The Atlantic Monthly on line.

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