Une Procédure en Difficulté: A Blueprint for Resolving 'Special' Education Disputes Through a Quasi-Inquisitorial Administrative Process
32(2) Windsor Yearbook of Access to Justice/Recueil Annuel de Windsor d'Accès à la Justice 115 (2016)
30 Pages Posted: 8 Aug 2016
Date Written: February 22, 2016
In this essay, disability practitioner and scholar Stephen Rosenbaum proposes a radical change in the United States administrative adversarial adjudicatory process for resolution of “special” education disputes between educators and students with disabilities, looking for inspiration in part to Canada and the Commonwealth’s use of an inquisitorial approach. Typically, the dispute is over whether the students — termed “les enfants en difficulté” in French-speaking Canada — are receiving an appropriate array of instructional interventions and services. Adversarial adjudication has had many critics over the years. Asking a judge to weigh the parent (or student’s) preferred options under the U.S. Individuals with Disabilities Education Act [IDEA] against those of the school administration may not be the optimal method for designating a pupil’s educational program — nor a good use of time and money.
The author’s blueprint calls for replacing the IDEA due process hearing with another model in instances where the family and school authorities disagree about the components of a student’s instructional program. Under current law, the hearing is typically conducted by an administrative jurist in which the parties present evidence, expert testimony and argument, if they have been unable to resolve their disagreement at a school-based team meeting, mediation or some other informal conference. In the proposal presented here, disagreements would instead be reviewed by a “special master” whose expertise is in education or disability rather than law. Through a process of problem-solving or “active adjudication,” the master (or “independent educational reviewer”) would attempt to quickly resolve the dispute over appropriate placement, instructional strategies and/or services. The master could hold a conference, conduct a hearing or brief investigation, receive more documents, consult with experts or correspond in some other mode with the parties. The master’s determination would be subject to judicial review in limited circumstances.
Keywords: Special education due process, students with disabilities, inquisitorial adjudication, active adjudication, bureaucratic legalism
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