I recently discovered a study that analyzed outcomes in due process hearings in Illinois, and whether or not outcomes were correlated with the parent having an attorney (the school board always has an attorney).
Dr. Melanie Archer looked at approximately 350 due process hearings in Illinois between 1997-2002. The first thing to note is the relatively low rate of due process hearings compared to the overall number of children receiving special education services (about 300,000) - that's less than 0.2%. So the next time a school district attorney complains about how special education is the "next big litigation explosion", take it with a grain of salt.
And then there's the question of outcomes - who wins? Not the parents! Parents lose 70% of the time. Twenty hearing officers made between 4 and 28 decisions during this time, with some officers never finding in favor of parents.
I was mostly not-surprised that the most important single predictor of whether a parent will prevail in a hearing is representation by an attorney. School districts were represented by attorneys in 94% of all hearings, whereas parents had attorneys only about 44% of the time. In such circumstances, parents are significantly more likely to lose. I think this is mostly just about power and power imbalance. When you go to mediation as a parent, it's you and maybe your spouse on one side, and 4 people from the school district plus their attorney on the other side. It's a whole battery of experts vs. you.
And the data speaks to it as well. In this study, 50.4% of parents with attorney representation won due process hearings, compared to only 16.9% of those without attorney representation. Attorney representation does not give parents an overall advantage in the hearing system, but puts them on a more equal footing with the school districts. If parents are not represented, school districts are on average 5 times more likely than parents to prevail.
Parents actually won more cases than they lost if they both requested the hearing and were represented by an attorney. If a parent requested the hearing, but was not represented by an attorney, the school district was 3.3 times more likely than the parent to prevail.
Factors that Increased a Parent's Chance of Prevailing
Certain factors significantly increased a parent's chance of winning a hearing. The factors were:
I would add that another, not-insignificant benefit of hiring an attorney is to obtain attorney-client privilege, and privileged attorney work product. The horrible irony is that if the parent is doing all the work herself - researching issues, generating analysis, drafting complaints - that's discoverable. But if an attorney working for that client did the same work, that's not discoverable, because it's privileged.
Dr. Melanie Archer looked at approximately 350 due process hearings in Illinois between 1997-2002. The first thing to note is the relatively low rate of due process hearings compared to the overall number of children receiving special education services (about 300,000) - that's less than 0.2%. So the next time a school district attorney complains about how special education is the "next big litigation explosion", take it with a grain of salt.
And then there's the question of outcomes - who wins? Not the parents! Parents lose 70% of the time. Twenty hearing officers made between 4 and 28 decisions during this time, with some officers never finding in favor of parents.
I was mostly not-surprised that the most important single predictor of whether a parent will prevail in a hearing is representation by an attorney. School districts were represented by attorneys in 94% of all hearings, whereas parents had attorneys only about 44% of the time. In such circumstances, parents are significantly more likely to lose. I think this is mostly just about power and power imbalance. When you go to mediation as a parent, it's you and maybe your spouse on one side, and 4 people from the school district plus their attorney on the other side. It's a whole battery of experts vs. you.
And the data speaks to it as well. In this study, 50.4% of parents with attorney representation won due process hearings, compared to only 16.9% of those without attorney representation. Attorney representation does not give parents an overall advantage in the hearing system, but puts them on a more equal footing with the school districts. If parents are not represented, school districts are on average 5 times more likely than parents to prevail.
Parents actually won more cases than they lost if they both requested the hearing and were represented by an attorney. If a parent requested the hearing, but was not represented by an attorney, the school district was 3.3 times more likely than the parent to prevail.
Factors that Increased a Parent's Chance of Prevailing
Certain factors significantly increased a parent's chance of winning a hearing. The factors were:
- attorney representation,
- the parent's initiation of the hearing,
- the hearing officer; that is if the officer had a history of making a decision in favor of parents more often than the average officer (i.e., more than 30.5% of their decisions were in favor of parents),
- if the hearing included a broad range of issues rather than a single, narrow issue, and
- the earlier in time that the hearing took place during the time frame analyzed.
I would add that another, not-insignificant benefit of hiring an attorney is to obtain attorney-client privilege, and privileged attorney work product. The horrible irony is that if the parent is doing all the work herself - researching issues, generating analysis, drafting complaints - that's discoverable. But if an attorney working for that client did the same work, that's not discoverable, because it's privileged.
So I think all the foregoing supports the need for (a) recovery of attorney's fees for parents in mediations and dispute resolution sessions and (b) better access for parents to low-cost, effective representation. Easier said than done! But I'm planning to revisit these issues again, with updates about legislative initiatives on these issues.
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