Improve the Special Education Due Process System

Goal: Texas needs an unbiased Special Education Due Process System that fairly resolves disputes between parents of children with disabilities and school districts regarding the provision of a free appropriate public education.

Problem: The Texas Special Education Due Process System needs reform. The system is biased against parents, and parents rarely win on the substantive issues. Furthermore, it is increasingly difficult for parents to find private attorneys to represent them in special education due process hearings. Because the current Due Process system favors school districts, children do not receive needed educational services.

Recommendation: The Texas Legislature should institute alternative dispute resolution activities for parents and schools to resolve differences without the need for a formal Due Process Hearing. Additionally, the Legislature should make the current system fairer, by adopting measures to “level the due process playing field” and measures that increase a parent’s chance of prevailing in a due process hearing.

Background: The federal Individuals with Disabilities Education Act (IDEA) requires schools that receive federal funding to provide a “free appropriate public education” to children with disabilities. The IDEA is based on the fundamental premise that parents and schools, when working cooperatively together, are uniquely suited to make the best decisions regarding the appropriate educational needs, including placement, for students. In this process, disputes are inevitable and normal. Parents and students who believe they are not receiving an appropriate education can file a complaint with the state and have a due process hearing to resolve disagreements. Unfortunately, the current system is broken and biased against parents. Additionally, it is difficult for parents to find or afford private attorneys to represent them in due process hearings. When a parent cannot find an attorney, their choice is to represent themselves “pro se,” or withdraw their request for a hearing. Because of the inequity in the system parents rarely win on the substantive issues.

Specific Recommendations for Change:

The Disability Policy Consortium recommends that the Texas Legislature make the current Due Process Hearing system fairer by:

• Moving due process hearings from the Texas Education Agency (TEA) to the State Office of Administrative Hearings (SOAH).
  • This would reduce the potential for conflicts of interest with hearing officers and school districts.
• Reallocating the burden of proof to school districts in due process hearings.
  • School districts have greater expertise and resources and therefore are in a better position than parents to demonstrate the adequacy of a student’s educational program. Further, placing the burden on the district to show that its plan measures up to the statutorily mandated ‘free appropriate public education,’ will strengthen school officials’ resolve to provide an educational program genuinely tailored to a child’s individual needs.
• Extending the statute of limitations for filing a complaint to two years.
  • The IDEA establishes that requests for a due process hearing must be made within two years of the date the parent or school district knew, or should have known, about the alleged action that forms the basis of the due process hearing request unless a state has a specific time limitation for requesting a hearing. Texas has established a one-year statute of limitation, but this can result in students’ conflicts not being resolved. Often parents attempt to work with schools to resolve differences regarding students’ educational programs and, by the time a parent has determined the need for formal dispute resolution, the one-year statute has run out and a student’s claim for compensatory education has been lost.
• Allowing lay advocates to represent parents who are unable to find and/or afford an attorney.
  • Many parents cannot afford to have an attorney represent them and therefore must represent themselves. This places parents at a clear disadvantage since hearings rely on state and federal law. Additionally, many parents do not have experience outside their own in special education and an advocate brings additional knowledge and expertise to a hearing that the parent would not otherwise have.
• Requiring the state auditor’s office to audit the Special Education Due Process and Complaint systems;
  • It is crucial for the success of the IDEA in all of Texas, that schools are held accountable for IDEA implementation. Therefore, TEA must effectively monitor IDEA implementation and school outcomes for special education students. If local districts believe that TEA is meaningfully monitoring special education outcomes and dispute resolution, districts are more likely to provide students with an appropriate educational program.
• Instituting alternative dispute resolution activities, such as Facilitation of Individualized Education Plans (IEPs) and the use of an Ombudsperson Program, for IEP development disputes.
  • If parents and school districts can access a less damaging, less polarizing and more responsive process, they might be willing to use it sooner and save time, emotions and dollars. Alternative resolution processes address mutual concerns without doing additional harm to individuals and relationships and allow parents and schools to make constructive, ongoing contributions to resolutions that affect them, and are responsive to the needs of student’s educational programs.