Special Education Today

The Ninth Circuit Court of Appeals recently decided the case of Ashland Sch Dist v. EH (9th Cir. December 9, 2009). The case is interesting for a few reasons. You can read the Ninth Circuit decision here.

Let me state at the outset that I have a bias here. I am a special education due process hearing officer for four states (well, really it's four jurisdictions to be accurate). The key ruling in this case involves the standard of review for hearing officer decisions when they are appealed

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to court. You can see why I take particular notice of these decisions.

The opinion is binding precedent for the western states comprising the Ninth Circuit. Here is a map that shows the federal circuits and which states they cover. Hearing officers and courts in other circuits, however, often rely upon judicial opinions outside their circuit if they find them to be persuasively reasoned.

In the Ashland case, the parents argued that the standard for review of a hearing officer decision should be abuse of discretion. The appellate panel found that the parents misread § 615(i)(2)(C) of the IDEA and the caselaw decided thereunder. The court found that the appropriate standard was de novo review by the district court. The Ninth Circuit did qualify its ruling however, by noting that the reviewing court must give deference to the hearing officer's findings, especially if they are thoughtful and careful, and that the court must refrain from substituting its own notions of sound educational policy. Moreover, the Ninth Circuit stated that it is required that a district court reviewing a hearing officer decision must consider the hearing officer's findings carefully and respond to the hearing officers resolution of each issue before reaching a contrary result.

This decision has significance for hearing officers and those practicing before them. Although the ruling is in favor of the party arguing for a less deferential standard of review, in my opinion, the Ninth Circuit once again affirms the fairly high level of deference which should be accorded to hearing officer decisions. When I read the news reports at first, this case sounded very bad for hearing officers. As always, however, it pays to read the entire decision.

Tell me what you think.

Maybe I wasn't looking in the right place. I was expecting that the severe downturn in the economy would cause a movement to permit school districts to argue that expense or cost should be a defense in special education cases. I even ran a poll in this blog to that effect. The result was a resounding no. But as many readers have suggested, perhaps the effects of the recession have been more subtle. Maybe they are silently creeping into the decision making process in ways that are difficult to observe, let alone quantify. Subtlety isn't really my thing, but I think that these effects are likely present.

I have just discovered another insidious effect of the bad economy. It involves a state due process system. I admit that I have a bias here. (By the way check out the new disclosure on the lefthand side of the blog!) As many of you know, I am a hearing officer and I train hearing officers. I don't think this invalidates my opinion, but disclosure is good.

The due process hearing system is extremely important. It is at the heart of the system of procedural safeguards established by IDEA to protect the rights of children with a disability. The importance of procedural safeguards has been recognized by the U. S. Supreme Court in Shaffer v. Weast 546 U.S. 49, 126 S.Ct. 528, 44 IDELR 150 (2005) as the mechanism that levels the playing field in view of the information advantages enjoyed by a school district.

Indeed, there is almost always no other trial in a special education dispute. The decision of a hearing officer is appealable to court (or in some states to a second tier review officer). The doctrine of exhaustion of administrative remedies, however, requires that for almost all special ed disputes, the matter must first be heard by a hearing officer, and that the final administrative decision determines the matter in the absence of an appeal.

As readers of this blog know, we have done many previous posts on the hearing system. (These are available through the search bar on the lefthand side of the blog.) Every state system is different. Two states have a three person panel conduct the hearing. Many states require that hearing officers be lawyers; some do not. Some states contract with hearing officers. Some use the ALJs of the central panel. Some have a special section of the ALJ panel for special education cases. The vast majority of stats provide high quality training for their hearing officers; some states are not so diligent in this regard. (Remember again my bias here.) The 2004 amendments to IDEA require new levels of competence and training for hearing officers. Apparently, Congress was concerned about the due process hearing system.

I just learned of a big economic effect upon the due process hearing system in the state of California. The due process hearings there are heard by Administrative Law Judges on the central panel. They have a good bunch of people. I was one of the trainers at their annual training last March, and I have met some of them at other conferences and meetings. But the California economy is in big trouble. State employees have been required to have the state budget balanced on their backs. This includes the special education ALJs.

Specifically the special education ALJs are furloughed (that's HR talk for laid off) the first three Fridays of the month. That's a 13.9% pay cut. This despite a work load. that remains t

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he same I find this type of red tape bureaucratic nonsense to be offensive. Does the California government think that these changes do not affect the quality of justice? Do they care?

I understand that times are tough, but how can these "furloughs" be justified. The ALJs have to be highly trained in special education law and in the nuts and bolts of running an administrative hearing. It ain't easy; I've been there. Won't these drastic actions affect the quality of the California due process system? If the procedural safeguards like due process hearings are at the heart of the balance between school districts and parents, how can this cheapness serve any important public policy. As they say during the hearing, I OBJECT.

OK so I'm still getting the hang of my mobile-posting voice recognition technology.

The last post should read "Great Hearing Officer Conference." Lost in translation is the phrase that comes to mind. I was describing the conference of the National Association of Hearing Officials. I have been lucky enough to have served as a member of the faculty for this conference for the last five years. It is a fantastic group of people. They all do administrative hearings of various kinds. They also have some fun.

This year the conference was in beautiful Boise, Idaho. Great place. I also learned a lot about Basque culture. (I am sometimes amazed by what I do not know about the world and the people who inhabit it!) There was also a feast featuring Paella and Basque dancers. Potatoes are fantastic in Idaho.

Concerning the hearing process, I presented three sessions. There were many other excellent sessions offered including a useful diversity training. Keynotes by Justices of the Idaho and Oregon state supreme courts and an inspired defense of the rule of law by the Dean of the U of Idaho School of Law were each worth the price of admission.

I came away with two new thoughts. First, a good hearing officer must be a Renaissance person. A wide experience and world view coupled with appreciation for music, art, and life are minimum requirements.

Second, I got confirmation of a view I have been developing. A friend who is one of the foremost experts on Administrative law confirmed my newly-formed opinion that the reason that the federal and state Administrative Procedure Acts are vague regarding the hearing process is by design. Some experts believe that the law has not yet caught up to the reality of current day administrative law where the "trial" for many types of disputes takes place in an administrative hearing. Purists would have all "trials" take place before an Article III court (the judicial branch of government). If fact, today many disputes are resolved by administrative hearing officers (who are really part of the executive branch.) I disagree. I believe that the administrative hearing process is left vague in order to permit the administrative hearing officer to fashion procedures that will allow the fair presentation of evidence given the facts and circumstances of a dispute. This individualized justice ensures that the parties receive due process of law for a particular dispute and set of facts. Consistency is less important than fairness.

Any dissenters?

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!