Special Education Today

The number of due process hearings in special ed disputes has increased nationwide over the last two decades. This link is to a pennlive.com article discussing the topic. The article quotes Professor Perry Zirkel for some of the reasons for the increase, including the recognition of autism and ADHD as disabilities for purposes of eligibility.

I have great respect for Professor Zirkel and I generally agree with him. One area where we differ, though is whether the special ed hearing system is overlegalized, as he contends. I contend that in the ten busiest jurisdictions, the system probably is overlegalized. In other places, especially in rural or isolated areas of the country, however, I think that the system is underlegalized. I am active in ACRES, the rural special education organization, and many of their members agree with me on this point. There are many places where parents, and sometimes even school districts, cannot find a lawyer familiar with special ed law. As the article above suggests, the income of the parents may be the best indicator of whether they can assert their rights under the procedural safeguards.

I don't think that increasing the number of due process hearings is a goal, but if the problem is that there are parts of the country where legal representation is unavailable, that is not healthy. Similarly, if there are people not assessing procedural safeguards because they are not wealthy, maybe we should design a new and different system.

What has been your experience? What do you think?

Those of you who follow this blog know that I was concerned about the school district's argument that hearing officers lacked authority to grant reimbursement. I had never heard this argument made before. NOTE: I have a bias here, I am a due process hearing officer for a growing number of states and I train hearing officers across the country. A few commentators have dismissed this issue as a "nonstarter," but at least three justices asked questions concerning the argument at the oral argument. Maybe others gave this argument little attention, but believe me, hearing officers were taking it seriously.

As my preliminary analysis noted the supremes specifically noted at page 17 of the slip opinion that both hearing officers and courts have the authority to grant reimbursement for un

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unilateral placements in proper circumstances. The Court explained its reasoning in footnote 11 on page 13 of the majority opinion.

Specifically, the Court ruled that the district's argument concerning hearing authority ignores the Burlington decision. The high court stated that the Burlington decision interpreted IDEA "... to authorize hearing officers as well as courts to award reimbursement notwithstanding ...(Section 615's) silence with regard to haring officers." n. 11, Slip Op at p. 13. The opinion goes on to state that by amending IDEA without altering the text of the section, Congress implicitly adopted the Supreme Court's construction of the statute regarding hearing officer authority to award reimbursement.

Forest Grove Sch Dist v TA 557 U.S. ____, 109 LRP 36046 (6/22/2009) is an important decision for hearing officers to cite in their decisions. It is clear that this decision reiterates the ruling of Burlington that hearing officers ,like courts, have broad equitable discretion to award an appropriate remedy where there has been a violation of IDEA.

here are some additional resources: First, a couple editorials applauding the ruling: St. Louis Dispatch and Boston Globe. The SCOTUS blog resource page concerning this case includes analysis, briefs by the parties, amicus briefs and a transcript of the oral argument at the high court. A law review article written before the decision discusses some policy concerns can be found here. This link has three perspectives on the ruling.

If you want to learn a lot about special education law, and just plain education law, all in one place in a short time, I recommend some of the high quality conferences that are offered around the country...

This is a reminder that I will be at the 15th Annual Education Law Conference in Portland, Maine July 28 to 31, 2008. The University of Southern Maine plus a number of other cool cosponsors organized this conference. In addition to numerous excellent sessions on education law topics, there are strands on higher education, creative use of technology, law-themed education and a new Hearing Officer Training Academy. I will be the featured presenter for the Hearing Officer Academy, and a number of other distinguished faculty will participate, but I will also attend the whole conference to further advance my understanding of education law.

Further information about the conference may be found at:

You can register for the Conference on the link on the left-hand side of this blog or at:

If you are going to be there, please find me and introduce yourself to me. By looking at the photos of me on this blog, you can see that I'm pretty easy to find. I always enjoy meeting people who read this blog and getting their feedback. I hope to see you there!