Are Due Process Hearings Fair to Parents?

    A study released December 2002 by Melanie Archer, Ph.D., reveals startling information about how the due process system works in Illinois.  Parents and school districts have “due process” hearings when there is a dispute over a proposed placement for a student, the implementation of a student’s educational plan, the need for a case study evaluation, etc.  Created as a safeguard under the Individuals with disabilities Education Act (IDEA), it is a hearing before an “impartial hearing officer”, whose decision can be appealed within the court system. 

Dr. Archer examined information from 343 due process hearings in Illinois between July 1997 and June 2002. Information was collected on the name of the hearing officer, whether a parent or school district requested the hearing, the major issues involved, the prevailing party and whether the parties had attorneys present.

Few Cases Go to Due Process

While the special education process has been described as an "adversarial process", the number of requests for due process hearings has been small and remained constant over the past five years, During the 2000-2001 school year, there were 296,095 students receiving special education services, but there were only 485 requests for due process hearings, representing less than two-tenths of a percent. Since many requests were settled or withdrawn, only 66 due process decisions were issued that year.

Based solely on the numbers, one might be skeptical. Parents are less likely than school districts to win a due process hearing, losing 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.

Hearings Requested by School Districts versus by Parents

There are many reasons a school district might request a hearing, such as to change special education ser­vices or to obtain consent to conduct a case study evaluation. School dis­tricts requested 28.1% of all hearings in which a decision was issued, with the number increasing each year of the study. Also increasing is the likeli­hood that a school district will win. During the 1998-1999 school year, parents prevailed in 38.3% of cases brought by the school district, but in 2001-2002, parents prevailed in only 1 20% of those cases.

Parents bring placement cases, but additionally bring cases such as those that challenge the content and imple­mentation of the Individualized Educa­tional Plan. In the time period stud­ied (7/97-6/02), parents prevailed in 39% of the cases they brought before a hearing officer, with a trend indicat­ing that it is becoming increasingly difficult for parents to prevail.  In the 1998-1999 school year, parents won 46.2% of the cases they initiated com­pared to 30.6% of the cases initiated by them in the 2001-2002 year.

Attorney Representation

The most important single predic­tor of whether a parent will prevail in a hearing is representation by an attor­ney. School districts have attorney representation more than twice as frequently as parents. In fact, 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.

In this study, there were 276 cases in which a decision was made and attorney representation for both par­ties was known. Attorney representa­tion significantly increased the' chances of a parent prevailing. 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.

Who are the hearing officers?

There are 18 hearing officers whose names and short biographies are given on the Illinois State Board of Education website.  Most hearing officers are attorneys, many of whom also have some special education or school experience.

            A minority (4 our of 18) have a background strictly in a special education-related area.  Information is also given on memberships to pertinent organizations, geographical areas from which they are excluded from taking cases, and the number of years they have been a hearing officer.  On a different page of the same website, brief summaries of cases are listed along with the name of the presiding hearing officer.  Information on the outcome of the case and whether parents were represented by an attorney is also occasionally given.

            This information can be obtained through the Illinois State Board of Education website, www.isbe.net.  More information about due process hearings can be obtained through the Family Resource Center 312/939-3515.

Recommendations based on research

The Learning Disabilities Association of Illinois, Inc, took part in providing recommendations based on the information in Dr. Archer’s study.  The coalition of organizations signed a memorandum that read:

“We, the undersigned organizations, call this data and study to your attention in relation to the current reauthorization process for IDEA.  We urge you to insure that IDEA maintains:

1. Standards and procedures that clearly delineate  a disabled child’s right to a Free and Appropriate Education, including protecting existing IEP procedures and annual review requirements.
2. Procedural safeguards for parents, including participation and notice requirements.
3. Existing attorneys’ fees provisions permit recovery of fees by parents in mediation and settlements when they prevail, and should be expanded to provide access to low or no-cost attorneys to parents.
4. Attorneys should be provided to parents at public expense when the school has representation in a pending due process hearing.
5. Intensive training, standards of qualifications and impartiality should be mandated for all hearing officers.

One Family’s Experience

The Spillanes know the value of an attorney.  They brought their case to due process in order to get their son placed in a private school for students with learning disabilities.  Their request was denied at a Level One Due Process Hearing (currently there is no Level Two).  “The hearing officer made me feel like I was an overanxious parent, who was holding my son back from things he could do,” said Therese Spillane.  Afterward, the school psychologist pulled them aside and recommended that they hire an attorney.  Given the same recommendation by a private learning specialist, they did so and appealed the decision.

“It seemed as if the attorney had to do almost nothing.  We went with the attorney to the next hearing, but the decision to give my son the private placement seemed to happen before we were even in the room.”

 This information was summarized and excerpted from Or. Melanie Archer's study entitled "Access and Equity in the Due Process System; Attorney Representation and Hearing Outcomes in Illinois, 1997-2002". Or. Archer is interested in study and re­search in the areas of disability, edu­cation, and social policy. She is the parent of two children, one of whom has autism. She can be contacted at miarcher@att.net.