Again, in order to lay the groundwork for future posts and topics I plan to address, I want to make sure everyone has a basic grounding in the principles and acronyms used in special education law. In my first post on the topic, I covered the super simple basics: how are special education services provided, and what's the legal standard used. (Need a refresher? Hit Back to Basics again).
As I've said before, the IDEA is both a funding statute, providing federal funds for state schools, and a civil rights statute, designed to rectify decades of discrimination against children with special needs. In keeping with its role as a civil rights statute, the law provides procedural safeguards designed to protect the rights of children with disabilities and their parents. Some of these safeguards consist of various notice requirements (e.g., the school must provide parents with "prior written notice" before changing the placement of a child). Other procedures address what happens if the collaborative process envisioned by the IDEA breaks down.
You can see, I'm sure, the possibility for big disputes between the parents and the school district concerning the education of a child with disabilities. Some parents feel like inclusion isn't the best place for their child (as I discussed in The Inclusive Classroom); other parents feel like their child can succeed in a general education classroom, albeit with appropriate supports. School districts, meanwhile, have limited resources, declining budgets, and staffing challenges. The first step in a dispute between the school and the parent is informal dispute resolution, just as any parent would approach the school if the child was having an issue. The parties can also request mediation, to be conducted by a neutral party at no cost to the parents. (Mediation is a great option, and I'm a big believer in it). After this, the escalation procedures are specifically laid out in IDEA.
First, the party with the grievance (usually the parent) files a due process complaint notice. This is often referred to as "filing for DP". This term can be a little confusing because "due process" has a broader legal meaning, outside of special ed law. The term originates in the Bill of Rights (of course you remembered that!) - " No person shall...be deprived of life, liberty, or property, without due process of law." There are two types of due process: substantive due process (the right to have one's rights under the law protected) and procedural due process (the right to have fair and impartial adjudications). Or, ask yourself two questions: Is the law being followed in its spirit? And, is the law being followed to the letter?
Then, IDEA requires that the parties try to resolve the dispute through an informal, lawyer-free resolution session. (These don't usually work - it's the same exact people that haven't been agreeing up to this point, in a room, arguing the same points. I think it's a good idea to waive the session - but only if the school suggests it first!!) If this doesn't work, and mediation doesn't work, then the parties are heading to "due process", meaning, a due process hearing. This is an administrative proceeding (i.e., not in a state or federal court) headed by an Administrative Law Judge (ALJ), but it does look much like a civil proceeding (e.g., presentation of evidence, witnesses, exhibits; cross examination of witnesses, opening and closing arguments). If either party is dissatisfied with the decision at the due process hearing, then the decision can be appealed to the district court of jurisdiction. (It actually can be appealed to either state or federal court, but for a variety of reasons it tends to go to federal court). From then on, it follows a typical case in federal court - district court, to the court of appeals, to, in theory, the Supreme Court.
I've obviously reduced a confusing set of procedures into its simplest form - there are a lot of additional details (like, what form the complaint must take, deadlines and filing dates, etc.). But here's the essential point: built into the IDEA as a key component is the idea that the parents will be the enforcers of the law. Let's be clear: the police officers of Springfield, Wherever, are not going to march into the local high school and arrest teachers and administrators for failing to provide an appropriate education to the special needs kids. It's up to the parents to follow the procedures I've summarized above to seek the services their kids are entitled to receive under the law. This is also why the IDEA provides that parents who prevail at due process are awarded attorneys' fees - as under other civil rights laws, the goal is to encourage the enforcement of the law.
This is why you should take accusations of the "litigious" nature of special education law, and the "growing problem" of litigation costs with a grain of salt. I've said it before and I'll say it again: parents of kids with disabilities are not looking for more work! We are not saying to ourselves, "Oh, I think it would be fun to threaten to sue the school district - the one that I want to educate my children - because they are ignoring my child's needs. Yes, I have the time and money for this, let's do that." Seriously.
Ok, onwards and upwards! Next posts on special education will focus on what FAPE really means, and what on earth we are to do with IDEA and No Child Left Behind.
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