Insights Into Due Process Reform: A Nationwide Survey of Special Education Attorneys

62 Pages Posted: 13 Dec 2021

See all articles by Bailey Sanders

Bailey Sanders

United States Court of Appeals for the Eleventh Circuit

Jane Wettach

Duke University School of Law

Date Written: October 16, 2021

Abstract

The federal law that guarantees an appropriate and inclusive education for children with disabilities relies on private enforcement; parents concerned about the inadequacy of their children’s education can take advantage of an administrative hearing to seek resolution of disputes with the child’s school district. While conceived in the Individuals with Disabilities Education Act (IDEA) as a prompt and informal tool, evidence suggests that special education due process hearings have become overly complex, prohibitively expensive, and excessively lengthy, thus limiting their accessibility and usefulness as an enforcement mechanism.

Despite numerous studies highlighting the flaws of special education due process, few have taken advantage of a particularly important resource for crafting reform proposals: the attorneys who practice special education law. Tapping into practitioners’ lived experiences of special education due process provides us with a clearer sense of how the due process system plays out in practice and, importantly, how differing perceptions of the system’s flaws may facilitate or impede attempts to build support for particular reforms.

In addition to cataloging various features of the due process system that differ from state to state, this article reports data from a nationwide survey of practicing special education lawyers that elicited their views about the effectiveness of the due process system. The most salient observation obtained from the survey is that the attorney’s client—be it the parents or the school district—strongly shapes the attorney’s perceptions of the system’s flaws and targets for change. Yet the results also suggest a number of reforms that could improve and streamline the system while garnering support from both parents and school districts. Recommendations include(1) more rigorous training of hearing officers, both in terms of case management and substantive special education law; (2) publication at the state level of more comprehensive and uniform standards for procedure, discovery, and admission of evidence; (3) development of additional funding sources for parent attorneys and expert witnesses; and (4) state review of rules with an eye toward greater procedural simplicity.

Suggested Citation

Sanders, Bailey and Wettach, Jane, Insights Into Due Process Reform: A Nationwide Survey of Special Education Attorneys (October 16, 2021). Connecticut Public Interest Law Journal, Vol. 20, 2021, Available at SSRN: https://ssrn.com/abstract=3944061

Bailey Sanders (Contact Author)

United States Court of Appeals for the Eleventh Circuit ( email )

AL
United States

Jane Wettach

Duke University School of Law ( email )

919-612-8396 (Phone)

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