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

The AASA, a national organization of general and special education administrators, placed reforming special education due process squarely on the nation’s education reform agenda. That is a huge step forward and 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 that such a dialogue is long overdue, even though I question and don’t necessarily support some of the report’s arguments and information.

“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 burdensome costs (in money, emotion, time, and the constant pressures to comply with regulations) that foster rampant fear of litigation in our schools and confusion and anxiety among parents.

Specifically, the AASA recommends that disputes between schools and parents about children’s special education placements and services 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 it in court. Note that the first, second, and fourth steps already exist and that through this proposal, the AASA recommends the elimination of due process hearings.

In its third step—the consultant IEP process—the AASA cites similarities and differences with SpedEx, the Massachusetts dispute  resolution option with which I am involved. See page 23 of the report. Since 2009, SpedEx has grown as a (still small), successful, state-funded voluntary dispute resolution option for parents and schools. Briefly, SpedEx is designed to help parties resolve their own disputes in a trust-building, child focused, efficient (30 days), free-to-the-parties way—without waiving due process rights. To get SpedEx started, both parties have to agree on which consultant the state will hire for them—a large first step in the trust-building process. Assuming the parties 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 a few weeks after the agreement. I believe that SpedEx has the potential to work well in other states. http://spedexresolution.com/

While I might personally love to see SpedEx go national, I understand that AASA has put out a somewhat similar approach  which, I believe, is to be viewed as a conversation starter. So to help that discussion, I’d like to say that I have concerns about the report’s approach. Its proposal for a consultancy model is not voluntary and the parties are bound to implement the consultant’s report for an agreed-upon time period after which they can seek court action. I have concerns about making a consultancy model the only option for parties and eliminating due process hearings thereby.

How about this for a better way to fix special education’s dispute resolution m?  Let’s follow what I call the ‘dinosaur approach.’ Let’s create attractive options, such as SpedEx, so fewer people resort to hearings. Already we see a decline in the number of hearings nationwide. We don’t need to eliminate hearings (probably not a winnable fight) in order to fundamentally fix the system. Rather, let’s help hearings fade away as the dinosaurs did eons ago.  Let the dialogue begin! I’m sure that together we will come up with great solutions.

It is important to note that in this report, the AASA continues to assume that special education disputes should continue. In the larger picture of fixing special education, I believe it may be time to question that assumption. See my University of Chicago piece on this. http://lawreview.uchicago.edu/sites/lawreview.uchicago.edu/files/uploads/79_1/Freedman.pdf

And,  my little flipbook, Fixing Special Education at my website: www.schoollawpro.com/store.

or at  http://www.legaldigest.com/online-store/view/fixing-special-education-12-steps-to-transform-a-broken-system.

As a nation, we need to have that larger dialogue about how to educate ALL students—including students with disabilities—in the most effective results-based way. Let us even consider the possibility that this law, with its entitlement and due process system, should be replaced by something more appropriate for current realities for all students. After all, this 1975 law has succeeded over the past almost 40 years in providing access to all students with disabilities to school programming. We should consider replacing it, rather than continuing to grow it into more and more complex and unintended consequences. This, too, is a dialogue we need to have—changing the entire special education system, beyond substituting one dispute resolution mechanism for another. But, let’s save that for another time.

For now, as you can see, the AASA report has done a tremendous public services by raising these critical issues about special education due process. I applaud the AASA for doing so at this time. Let the dialogue begin!  I have no doubt that we can all do much better!

 

 

 

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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