Parental Enforcement of IDEA is Inadequate

In The Politics of Autism, I write about IEPs and FAPE. The Supreme Court ruled in Endrew F. v. Douglas County School District that the Individuals with Disabilities Education Act (IDEA) requires public schools to provide heightened educational benefits to students with disabilities.

Parents usually lose in due process hearings.

 Allison F. Gilmour at Education Next:

Consistent with its emphasis on individualization, IDEA includes procedures for families of students with disabilities to hold school districts accountable for upholding the law. These procedural safeguards outline dispute-resolution options for when their child’s rights under IDEA are violated. Importantly, the dispute-resolution process is intended both to protect the rights of individuals and to help make special education better for everyone. The theory of change is that parents, by advocating for their child, induce changes in local, state, and potentially even federal policies and practices that improve special education for all students.

This theory of action has mostly failed in more recent years. (There are some exceptions, like 2017’s Endrew F. v. Douglas County School District.) Due process complaints, the most serious and costly dispute-resolution option because they may result in lawsuits, have risen since 2015 (Figure 3). But these cases are often settled, sometimes with requirements that families not discuss the case or how it was resolved, limiting their potential to drive broader change. The resources poured into legal cases and their expensive resolutions—such as tuition payments to private schools—could be better used proactively within districts to address shortfalls in special education delivery.

IEP Settlements and Inequality

In The Politics of Autism, I write about social services, special education and the Individuals with Disabilities Education Act.  Inequality is a big part of the story. 

Maddie Hanna at The Philadelphia Inquirer reports that Pennsylvania schools districts have spent millions to settle special education disputes.

To get a settlement with a school district over special education, first a child has to be identified by the district as requiring services — with an individualized education plan spelling out how the school will meet the student’s needs.

If parents disagree with what a district offers, they can take legal action by filing a due process complaint.

That can trigger formal hearings, which result in public decisions issued by hearing officers. But the vast majority of complaints are resolved through privately negotiated settlements.

As a result, most disputes around special education are happening out of the public eye, with little known about parents’ allegations or what districts are paying out.

“It’s something almost no one knows anything systematic, objective, and complete about,” said Perry Zirkel, a professor emeritus of education and law at Lehigh University.

In the Philadelphia collar counties, where special education-focused law firms have proliferated, lawyers say affluent parents, who know their rights and have the means to hire attorneys, are more likely to sue than poor ones.

The Individuals with Disabilities Education Act — the 1975 federal law entitling students to special education services — has never been fully funded by Congress, leaving schools vulnerable to litigation when they’re strapped to deliver the “free appropriate public education” the law requires, [Attorney Andrew] Faust said.

The IDEA is a “very much a rich-get-richer, poor-get-poorer statute,” Faust said, because unlike other civil rights laws, it relies on parents, not the government, to enforce it. [As my book notes, IDEA is not a civil rights law at all, but a "conditions of aid"law.]

The Future of Special Education Complaints

In The Politics of Autism, I discuss the civil rights of people with autism and other disabilities.

Lauren Wagner & Beth Hawkins at The 74:

The law that created the state complaint processes, the IDEA, guarantees disabled students’ educational rights. By contrast, the ADA, passed in 1990, outlaws discrimination against people who need accommodations to access public facilities and programs — including schools.

Families of children denied special education services can assert their rights under either law. When states fail to enforce a student’s educational rights under IDEA, families often file a discrimination complaint via the ADA.

In the 2022-23 school year, more than 54,000 state dispute resolution requests were filed in the U.S. and its territories, including due process complaints, written state complaints and mediation requests. The Office for Civil Rights had about 12,000 open cases — half of them involving disability discrimination — when its staff was slashed in March. For fiscal year 2026, which started July 1, the White House’s proposed OCR budget is $91 million, a 35% drop.

At the same time, the administration wants to move $33 million that currently funds state advocacy clearinghouses into block grants that states — cash-strapped as their federal pandemic funds run out — can use for other things. This means families risk losing a second source of leverage: free assistance from experts.

If enacted, both budget cuts would also exacerbate socioeconomic and racial disparities in the services kids with disabilities receive, says Carrie Gillispie, a senior policy analyst at New America. This is because families in states where there’s little appetite for local enforcement depend on OCR to investigate discrimination.

“Those discrepancies that exist will only worsen if these budget changes happen,” Gillispie says. “It’s a choice to continue to underinvest.”

With the federal office a hollow shell of what it was six months ago, advocates say, families are likely to rely more heavily on their states. And how — and how well — each state helps students with disabilities varies widely.

 

In Virginia, Parents Almost Always Lose in Due Process

In The Politics of Autism, I write about IEPs and FAPE. The Supreme Court ruled in Endrew F. v. Douglas County School District that the Individuals with Disabilities Education Act (IDEA) requires public schools to provide heightened educational benefits to students with disabilities.

Parents usually lose in due process hearings.

Justin Wm. Moyer and John D. Harden at WP:

Northern Virginia school systems grant fewer than 1 percent of requests from parents of children with disabilities seeking enrollment in schools that better accommodate their needs, according to data submitted in a civil rights lawsuit.

Plaintiffs allege the state’s education department has “curated” officials who almost always decide cases in its favor, according to the class-action lawsuit filed in federal court last month by parents of an autistic student. The state has prevented disabled children from getting the educational support they need, the parents say, disadvantaging a generation of people with special needs.

The suit, filed in U.S. District Court for the Eastern District of Virginia, told the story of a student referred to only as “D.C.," a 19-year-old who suffers from autism, attention-deficit/hyperactivity disorder, and Tourette’s syndrome, among other disorders. Attorneys in the case shared the data with The Washington Post.
...

The Individuals with Disabilities Education Act, which protects disabled students, allows parents to appeal school placements. But between 2010 and July 2021, just three petitions out of 395 in Northern Virginia prevailed.

Across Virginia, the results were not much better, according to the data. Just 13 parents in 847 cases, or about 1.5 percent, successfully challenged school district decisions about their children’s placements. By comparison, the suit said almost 35 percent of California parents — the state with the most special needs students in the country — won such cases, as did around 15 percent of Maryland parents. Virginia served more than 169,000 disabled students from 2021 to 2022, officials said.

Pandemic Litigation

In The Politics of Autism, I write about IEPs and FAPE. The Supreme Court ruled in Endrew F. v. Douglas County School District that the Individuals with Disabilities Education Act (IDEA) requires public schools to provide heightened educational benefits to students with disabilities.

Parents usually lose in due process hearings.

COVID is a new source of conflict.  Providing education is proving to be very difficult.

Bianca Quilantan at Politico Education:

Special education is the most active area of litigation for school districts, according to education groups. About 29 percent of schools were “worried that special education litigation would consume much of their time and resources in the 2020-21 school year,” a survey from the Association of Educational Service Agencies found.

— But the number of complaints filed is actually down during the pandemic, said Lehigh University professor emeritus Perry Zirkel, who has been analyzing the complaints.

— State complaint decisions and due process hearing decisions have been increasingly rolling out. In his summary of the decisions, Zirkel found that parents are largely looking for two forms of relief: compensatory education and fixing the problem for the future. But “we find that overall, districts win about twice as many cases as parents,” he said.

— So far, the majority of cases have resulted in corrective action, Zirkel said, and many due process hearing decisions have ordered specific and direct compensatory education or reimbursement to cover in-person private arrangements. The general pattern is that “both complaint investigators and hearing officers say [free appropriate public education] does apply, but they vary in their strictness,” he said.

Due Process During COVID

In The Politics of Autism, I write about IEPs and FAPE. The Supreme Court ruled in Endrew F. v. Douglas County School District that the Individuals with Disabilities Education Act (IDEA) requires public schools to provide heightened educational benefits to students with disabilities.

Parents usually lose in due process hearings.

From the Education Department's Office of Special Education and Rehabilitative Services:

The Office of Special Education Programs (OSEP), within the U.S. Department of Education’s (Department) Office of Special Education and Rehabilitative Services, issues this Question and Answer (Q & A) document in response to inquiries concerning implementation of the Individuals with Disabilities Education Act (IDEA) Part B dispute resolution procedures in the current COVID-19 environment. This Q & A document does not impose any additional requirements beyond those included in applicable law and regulations. It does not create or confer any rights for or on any person. The responses presented in this document generally constitute informal guidance representing the interpretation of the Department of the applicable statutory or regulatory requirements in the context of the specific facts presented here and are not legally binding and does not establish a policy or rule that would apply in all circumstances. To review other Q & A documents that OSEP has provided related to COVID-19, please visit https://sites.ed.gov/idea/topic-areas/#COVID-19. Additional information specific to the COVID-19 pandemic may be found online at https://www.ed.gov/coronavirus.

Q6. May due process hearings be conducted virtually when schools and other public facilities are closed or have restrictions that prevent face-to-face meetings? 

Yes. A State could permit hearings on due process complaints to be conducted through video conferences or conference calls, if a hearing officer concludes that such procedures are consistent with legal practice in the State. 34 C.F.R. § 300.511(c)(1)(iii). A hearing conducted virtually must ensure a parent’s right to an impartial due process hearing consistent with all requirements in 34 C.F.R. §§ 300.511 through 300.515. If applicable, a State-level review can be conducted virtually if consistent with State procedures. 

Q7. Do hearing officers, or where applicable, reviewing officers, have the authority to extend the applicable timelines for issuing decisions on due process complaints during the pandemic? 

Yes. IDEA permits a hearing officer or a reviewing officer to grant specific extensions of timelines at the request of either party to the hearing or review. 34 C.F.R. § 300.515(c); see 34 C.F.R. § 300.515(a)-(b) for applicable timelines. There is no IDEA requirement that both parties agree to the extension request, but the hearing officer or reviewing officer must document the length of the extension and the reason it was provided. While a hearing or State-level review of an expedited due process complaint may be conducted through video conferences or conference calls if consistent with legal practice in the State, IDEA makes no similar provision for extending relevant timelines for hearings or reviews in the context of expedited due process complaints

IDEA Dispute Resolution

In The Politics of Autism, I write about the experiences of different economic, ethnic and racial groups.   Inequality is a big part of the story. Affluent school districts have more resources than poor ones.  Educated professionals are better able to protect their children's interests than poor people who never went to college.

Attorneys have become major figures in the world of autism, because people often need legal counsel to get services from school districts and other government agencies. Soon after a diagnosis of autism, parents seek advice from those who have already been on the path. And soon they will hear, “Get a lawyer.”

The rights approach puts a great burden on parents to serve as advocates for their children.  Highly-educated, affluent parents are in a better position to do so than the poor and uneducated:  for one thing, their social networks are more likely to include lawyers and expert witnesses.  

But even the best-equipped parents are at a disadvantage against school district administrators and other bureaucrats. Like their representatives in Washington and state capitals, they are “repeat players.”  Their experience and expertise give them an edge that the parents’ special-education lawyers can only partially overcome.

The Government Accountability Office has a report titled "IDEA Dispute Resolution Activity in Selected States Varied Based on School Districts’ Characteristics."

The summary:

In school year 2016-17, 35,142 special education disputes were filed nationwide, and in five selected states GAO reviewed, dispute resolution options varied across school districts with different socioeconomic and demographic characteristics. The Individuals with Disabilities Education Act (IDEA) provides parents several ways to file and resolve disputes about plans and services that school districts provide to students with disabilities. A greater proportion of very high-income school districts had dispute resolution activity as well as higher rates of dispute activity than very low-income districts in most of the five states GAO reviewed. GAO also found that in most of these states, a smaller proportion of predominately Black and/or Hispanic districts had dispute resolution activity compared to districts with fewer minority students; however, predominately Black and/or Hispanic districts generally had higher rates of such activity. Technical assistance providers and others told GAO that parents used dispute resolution most often for issues related to school decisions about evaluations, placement, services and supports, and discipline of their children. 

Parents may face a variety of challenges in using IDEA dispute resolution, and the Department of Education and states provide several kinds of support that, in part, may address some of these challenges. Stakeholders cited challenges such as paying for attorneys and expert witnesses at a due process hearing, parents’ reluctance to initiate disputes because they feel disadvantaged by the school district’s knowledge and financial resources, and parents’ lack of time off from work to attend due process hearings. Education and state agencies provide technical assistance to support parents’ understanding of their rights under IDEA and to facilitate their use of dispute resolution options, for example, by providing informational documents and phone help lines to parents.

Due Process: Grim Odds in Maryland

In The Politics of Autism, I write about litigation under the Individuals with Disabilities Education Act. School districts prevail in most due-process hearings.  Here are some reasons:

School districts have built-in expert witnesses in the form of teachers and staff.  They also have full access to all relevant information about a proposed placement, and often deny parents access to those programs in advance of hearings. When parents’ experts can observe children in class, districts can limit their observations.   More important, parents have to foot the bill for their experts because of a 2006 Supreme Court decision that IDEA does not authorize reimbursement of witness fees. “While authorizing the award of reasonable attorney's fees, the Act contains detailed provisions that are designed to ensure that such awards are indeed reasonable,” Justice Alito wrote for the majority. “The absence of any comparable provisions relating to expert fees strongly suggests that recovery of expert fees is not authorized.” It goes without saying that this decision disadvantages all parents, and especially those with modest incomes. 

Talia Richman at The Baltimore Sun:

It’s rare for the parents of students with disabilities to prevail in legal battles against Maryland school districts. In the past five years, they’ve lost more than 85 percent of the time, state education department documents show, even after investing tens of thousands of dollars and countless hours in pursuit of a better education for their children.

 ...
Other states avoid such asymmetrical rates. [NOT CALIFORNIA, THOUGH. -- ed.]A study examining due process hearings in Texas found districts prevailed in roughly 72 percent of cases from 2011 to 2015. A similar assessment in Massachusetts found school districts won in a little more than half of the due process hearings over eight years.   

... 

Some researchers believe districts prevail much more often because they have far greater legal and financial resources than a family does. Another explanation special education experts offer is the districts will attempt to resolve cases that are less likely to be won and go to a hearing only if they are supremely confident in their chances. Others believe judges give deference to the judgment of district officials.

“It’s always been a David and Goliath issue,” said special education attorney Selene Almazan.

Project HEAL produced a report analyzing each of the 105 due process hearings from fiscal year 2014 to the second quarter of fiscal year 2019, most of which were initiated by the parents.

Judges sided with school districts in all but 14 cases. No parents won if they represented themselves.


...

CA Due Process: Students Prevail Less Than 20% of the Time

In The Politics of Autism, I write about litigation under the Individuals with Disabilities Education Act. School districts prevail in most due-process hearings.  Here are some reasons:

School districts have built-in expert witnesses in the form of teachers and staff.  They also have full access to all relevant information about a proposed placement, and often deny parents access to those programs in advance of hearings. When parents’ experts can observe children in class, districts can limit their observations.   More important, parents have to foot the bill for their experts because of a 2006 Supreme Court decision that IDEA does not authorize reimbursement of witness fees. “While authorizing the award of reasonable attorney's fees, the Act contains detailed provisions that are designed to ensure that such awards are indeed reasonable,” Justice Alito wrote for the majority. “The absence of any comparable provisions relating to expert fees strongly suggests that recovery of expert fees is not authorized.” It goes without saying that this decision disadvantages all parents, and especially those with modest incomes. 

California OAH ( Office Of Administrative Hearing ) Special Education statistics https://www.californiaspecialedlaw.com/due-process-hearing-decision-statistics/ 
Percent of cases when student prevailed :

Year 2017 : 18 %
Year 2016 : 12 %
Year 2015 : 13 %
Year 2014 : 15 %
Year 2013 : 11 %
Year 2012 : 14 %
Year 2011 : 14 %
Year 2010 : 10 %
Year 2009 : 15 %

Endrew F. Decisiion -- No Immediate Miracles

In The Politics of Autism, I write about IEPs and FAPE. A year ago, the Supreme Court ruled in Endrew F. v. Douglas County School District that the Individuals with Disabilities Education Act (IDEA) requires public schools to provide heightened educational benefits to students with disabilities.

Christina Samuels at Education Week:

But school districts are not losing cases because of the new Endrew F. standard, said Perry Zirkel, a professor emeritus of education and law at Lehigh University, who has been tracking the impact of the case. Forty-nine cases were decided by a judge who cited Endrew F. and applied its standard that a special education program must be "reasonably calculated to enable a child to make progress in light of the child's circumstances." Of those, 44 saw no change in the decision, and in 37 of those cases, the decision was for the school district. In two cases, the case was sent back for further evaluation.
In three cases, the decision was reversed. But on one occasion, a decision that had been in favor of the parents was reversed, with the district prevailing under the Endrew F.standard.

In several situations, judges said that local practices already met the standard outlined by the Endrew F. case, Zirkel noted.

"Anyway you slice it, it hasn't changed the trends," he said. "The same folks are still winning—the districts."

Those findings match what Catherine Merino Reisman, a lawyer who represents parents in special needs cases and works out of Haddonfield, N.J., has seen.

"It's only been a year, and it's going to take some time for the lower courts to apply Endrew," she said. Reisman said that judges in the federal judicial circuit where she works say that its "meaningful benefit" standard is equivalent to that laid out by the high court. Reisman thinks that the Supreme Court case offers more specific guidance than just "meaningful benefit."

What I wrote in The Politics of Autism still applies:

 The rights approach puts a great burden on parents to serve as advocates for their children.  Highly-educated, affluent parents are in a better position to do so than the poor and uneducated:  for one thing, their social networks are more likely to include lawyers and expert witnesses.[i] But even the best-equipped parents are at a disadvantage against school district administrators and other bureaucrats. Like their representatives in Washington and state capitals, they are “repeat players.”  Their experience and expertise give them an edge that the parents’ special-education lawyers can only partially overcome.

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[i] Eloise Pasachof, “Special Education, Poverty, And The Limits Of Private Enforcement,” Notre Dame Law Review, 86, no. 4 (2011): 1413-1493.  Online: http://ndlawreview.org/wp-content/uploads/2013/06/Pasachoff.pdf.

Education Department Urges Avoidance of Due Process

In The Politics of Autism (forthcoming later this year from Rowman and Littlefield), I devote a chapter to the education politics of autism.  A major topic of this chapter is due process.

From a "Dear Colleague" letter by Acting Assistant Secretary of Education Sue Swenson and Melody Musgrove, Director of the department's Office of Special Education Programs:

Public agencies that seek to force parents who have already exercised their right to file a State complaint into a potentially more adversarial due process hearing harm the “cooperative process” that should be the goal of all stakeholders. Moreover, diverting resources into adversarial processes between parents and public agencies is contrary to Congressional intent in the 2004 amendments to IDEA’s dispute resolution procedures to give parents and schools expanded opportunities to resolve their disagreements in positive and constructive ways. 20 U.S.C. 1400(c)(8). We strongly encourage public agencies to respect parents’ reasonable choice to use the State complaint process rather than a due process complaint hearing. Likewise, before pursuing a due process hearing, a public agency should attempt to engage parents in mediation or other informal dispute resolution procedures, as appropriate.

Due Process and Mediation

Meghan M. Burke, Samantha E. Goldman have an article in The Journal of Autism and Developmental Disorders titled "Identifying the Associated Factors of Mediation and Due Process in Families of Students with Autism Spectrum Disorder."   They cite previous studies showing that families with an ASD child are more likely to push back than those of children with other disabilities. There are also differences among the families with ASD children. An excerpt:

First, families who advocated more and had weak  family-school partnerships were significantly more likely to file for due process or mediation (p’s\.0001). Because one piece of advocacy is understanding special education law (Trainor 2010), including conflict resolution procedures, parents who advocate more frequently may be more  likely to know about mediation and due process and, because of their knowledge, more likely to utilize these procedures. In addition, poor family-school partnerships may increase the likelihood of conflict because the parent and the school do not trust each other (Fish 2008). Conversely, family-school partnerships may deteriorate after a family files for due process (Mueller 2009).

Second, child characteristics also significantly related to the use of procedural safeguards. Compared to students who spent a large majority of their day in the general education classroom, families of students who were included for only 0–20 % of their time were 1.92 times more likely to enact their safeguards. This finding aligns with previous research indicating that placement is a common issue in due process hearings among families of students with ASD (Mueller and Carranza 2011). Our data indicates that families may be arguing for more inclusive settings. Parents of children with ASD who spend most of their time in self-contained classrooms may have greater concerns about their child’s quality of instruction and staff (Ryndak and Downing 1996). Child age also related to the enactment of safeguards with parents of older students being significantly more likely to file mediation or due process. Given that family-centeredness decreases with age (Dunst 2002), parents of older students may be more likely to use safeguards.
...
Third, parent characteristics also related to the usage of procedural safeguards. Families with greater incomes were significantly more likely to file due process or mediation. Given the high costs of hearings (Mueller 2009), families with more money may be better positioned to file for due process. However, the issue of income may represent a larger challenge of access and for whom due process and mediation can be viable conflict resolution procedures. Being unable to afford attorney representation or secure legal advocacy services, families from lower income backgrounds may feel that due process is not an equitable process (Shemberg 1997).

• Dunst, C. J. (2002). Family-centered practices: Birth through high school. Journal of Special Education, 36, 139–147.
• Fish, W. W. (2008). The IEP meeting: Perceptions of parents of students who receive special education services. Preventing School Failure, 53, 8–14.
• Mueller, T. G. (2009). Alternative dispute resolution: A new agenda for special education policy. Journal of Disability Policy Studies, 20, 4–13.
• Mueller, T. G., & Carranza, F. (2011). An examination of special education due process hearings. Journal of Disability Policy Studies, 22, 131–139.
• Ryndak, D. L., & Downing, J. E. (1996). Parents’ perceptions of educational settings and services for children with moderate or severe disabilities. Remedial and Special Education, 17, 106–118.
• Shemberg, A. (1997). Mediation as an alternative method of dispute resolution for the Individuals with Disabilities Education Act: A just proposal? Ohio State Journal on Dispute Resolution, 12,739–757.
• Trainor, A. A. (2010). Diverse approaches to parent advocacy during special education home-school interactions: Identification and use of cultural and social capital. Remedial and Special education, 31, 34–47.

Due Process

The Government Accountability Office has a new report, "Special Education: Improved Performance Measures Could Enhance Oversight of Dispute Resolution." The executive summary:

From 2004 through 2012, the number of due process hearings—a formal dispute resolution method and a key indicator of serious disputes between parents and school districts under the Individuals with Disabilities Education Act (IDEA)— substantially decreased nationwide as a result of steep declines in New York, Puerto Rico, and the District of Columbia. Officials in these locations largely attributed these declines to greater use of mediation and resolution meetings—methods that IDEA requires states to implement. Despite the declines, officials in these locations said that higher rates of hearings persisted because of disputes over private school placements or special education services. GAO did not find noteworthy trends in the use of other IDEA dispute resolution methods, including state complaints, mediation, and resolution meetings. States and territories reported on GAO’s survey that they used mediation, resolution meetings, and other methods they voluntarily implemented to facilitate early resolution of disputes and to avoid potentially adversarial due process hearings.

States, territories, and other stakeholders generally reported on GAO’s survey or in interviews that alternative methods are important to resolving disputes earlier. Some stakeholders cited the potential of these methods to improve communication and trust between parents and educators. Some state officials said that a lack of public awareness about the methods they have voluntarily implemented was a challenge to expanding their use, but they were addressing this with various kinds of outreach, such as disseminating information through parent organizations.

The Department of Education (Education) uses several measures to assess states’ performance on dispute resolution but lacks complete information on timeliness and comparable data on parental involvement. Education requires all states to report the number of due process hearing decisions that were made within 45 days or were extended; however, it does not direct states to report the total amount of time that extensions add to due process hearing decisions. Similarly, Education collects data from states on parental involvement—a key to dispute prevention—but does not require consistent collection and reporting, so the data are not comparable nationwide. Leading performance measurement practices state that successful performance measures should be clearly stated and provide unambiguous information. Without more transparent timeliness data and comparable parental involvement data, Education cannot effectively target its oversight of states’ dispute resolution activities.

A previous post noted that the Bloomberg administration beefed up its special-education legal team to defeat parents seeking private placements for their kids.  Perhaps the decline in New York reflects hardball legal tactics that discourage parents from going to due process.

M.R. v. Ridley School District: Private Placement and FAPE

A release from the National School Boards Association:

The National School Boards Association (NSBA), joined by thePennsylvania School Boards Association (PSBA) and the National Association of State Directors of Special Education (NASDSE), today filed a “friend of the court” (amicus) brief in the U.S. Supreme Court in the case of M.R. v. Ridley School District. At issue in the case is whether school districts must continue paying for a student’s private placement once a court finds the school district provided the child with a free appropriate public education (FAPE). Under the stay-put requirement in the Individuals with Disabilities Education Act (IDEA), school districts must pay for a disabled child’s current educational placement while legal proceedings continue to resolve a dispute between parents and schools.

The groups urge the Court to review the decision of the U.S. Court of Appeals for the Third Circuit extending the stay-put obligation through completion of all appeals—a departure from previous court rulings that limited the stay-put obligation only until a trial court issued a decision.

The amici argue that the Third Circuit’s decision risks inflicting significant harm on school districts and the students they serve. By extending school districts’ obligation to pay for private school placements until all appeals are exhausted, the decision creates an incentive for parents to prolong litigation rather than to work collaboratively with school districts to resolve disputes without delay; the increased liability for private tuition and legal fees from needlessly prolonged litigation imposes an untenable burden on the already-strained budgets of local school districts and diverts resources away from providing educational services to all children. The brief contends that one legal dispute could mean hundreds of thousands of dollars expended on an unnecessary placement and legal fees and innumerable hours of professional educators’ time spent in legal proceedings rather than the classroom.

From Education Week:

The Ridley school system argued that once the district court decided that Ridley had provided a free and appropriate public education, it was no longer responsible for any private school costs. It also said the parents should have tried to get the money earlier in the legal proceeding. But the February ruling from the appeals court found otherwise, saying that the district owed the parents close to $58,000 in tuition. From the ruling:

We are not insensitive to the financial burden our decision will impose on school districts ... or the seeming incongruity of the ultimately prevailing party having to pay for a now-rejected placement. Despite two judicial determinations that Ridley did not deny E.R. a FAPE, the school district will be assessed the cost of her private school education for a substantial period of time. It is impossible, however, to protect a child's educational status quo without sometimes taxing school districts for private education costs that ultimately will be deemed unnecessary by a court. We see this not as "an absurd result," ... but as an unavoidable consequence of the balance Congress struck to ensure stability for a vulnerable group of children.

As an aside, Pennsylvania, along with five other jurisdictions (California, the District of Columbia, New Jersey, New York and Puerto Rico), accounted for 80 percent of the due process complaints filed between 2006-07 and 2011-12, and 90 percent of the complaints that were adjudicated.

New York Schools v. Special Needs Kids

The New York Times reports on Dylan Randall, a disabled student whose parents fought for private placement and who died just as they won their battle.

For decades, parents of special-education students nationwide have been able to seek private schooling at no extra cost at public expense when public schools fail to meet their needs. Court rulings over the last decade have strengthened that right, and the city now spends more than $200 million a year on such education, up from just a few million dollars a year in the 1990s, when requests were far rarer.

Under the Bloomberg administration, the city beefed up its special-education legal team. The team evaluates requests and, increasingly, has denied them, arguing that city schools — where the cost of educating a special-needs student is generally $20,000 cheaper than in private school — are appropriate. Families can challenge the denial in a hearing. The Randalls’ hearing was one of 6,241 requested by families last year, up from 5,403 in 2008, according to State Education Department data. Families win a majority of those cases, according to city education officials. Either side can appeal a hearing decision to the state and, after that, in court.

In the past, members of the Bloomberg administration said they scrutinized requests to weed out families who were simply trying to get free private schooling, when public schools could meet their needs. Eric Nadelstern, a former deputy schools chancellor who is now a professor at Teachers College at Columbia University, said the efforts were rooted in a desire to pour money into special-education programs for all public school children, not to deny any one child’s chances for the best possible education.

Delay and Deny: Special Education in the Bay Area

KNTV reports that school districts often try to deny special education services in the Bay Area:

There’s disagreements between families and school districts, and less than 1 percent of families request a due process hearing, and only 3 percent of them actually go to the hearing,” parent advocate Ann McDonald-Cacho said, citing CLA [California Legislative Analyst] statistics. “The numbers show that most families…don’t have the resources, they don’t know where to find a lawyer, they don’t know how they could possibly hire a lawyer in order to work out these disagreements,” McDonald-Cacho said.

McDonald-Cacho works at the Disability Rights and Education Defense Fund (DREDF), an organization founded to help families navigate the school system to get the education their children are entitled to.

...

The NBC Bay Area Investigative Unit requested records showing the amount of money spent on outside attorneys from 2010 to May 2013 for the three Bay Area districts with the most special education cases: Oakland Unified, San Jose Unified and San Francisco Unified.

The reports show Oakland Unified spent more than $850,000, San Jose Unified spent more than $551,000 and San Francisco spent more than $440,000 on outside counsel to deal with special education lawsuits.

Compare that to the roughly $22,300 a year it costs to educate a special needs student. The districts could have provided services to 83 students in that time period.

...

Sunnyvale mom Nancy Agaiby is just beginning her journey, getting ready to enter a due process hearing with the Sunnyvale Unified School District. Her 6-year-old son Andrew was diagnosed with ADHD, but Agaiby said she has spent the past school year trying to reach an agreement with the district about an appropriate education plan for her son.

“They’re not fighting to save money, they’re fighting a 6-year-old,” Nancy told NBC Bay Area. “One of the staff (members) told me this is protocol, to get turned down over and over until finally they allow you in.”

Special Education Disputes in an Affluent County

Montgomery County is a wealthy Maryland suburb just north of Washington, DC.  The Washington Post reports:

“I’m proud of our special education department, and I know they work hard,” said Board of Education member Rebecca Smondrowski, who asked for the external audit. “But there are things that need to be seriously looked at.”

Smondrowski, the parent of a child with autism, said Montgomery parents often complain to her about how difficult it is to obtain appropriate special education services for their children. Frustrated families then turn to lawyers for help.

Montgomery parents are more litigious than those from any other school system in Maryland and Virginia when it comes to special education cases, according to data from both state departments of education. Montgomery is home to about 12 percent of Maryland’s disabled students but accounted for about half the state’s special education disputes from 2010 to 2012. The county, with nearly 40 cases, had more special education due-process hearings that went to a judge for resolution than all Virginia school systems combined.

But just because the county has more hearings than other school system in Maryland doesn’t necessarily mean that there are disproportionate issues with the quality of county services, said Gwendolyn J. Mason, director of the Department of Special Education Services for Montgomery schools.

“When you think about Montgomery County, you think about a community of parents that do have access to resources,” Mason said. “They are informed parents who may be attorneys themselves or have the means to secure some of the region’s or the nation’s best attorneys to represent families.”

[emphasis added]

A Placement Dispute in New Jersey

The Bergen Record reports:

The parents of a 9-year-old with autism claim that the Allendale School District is violating their civil rights by forcing them to send their child to an out-of-district program they don’t approve of, according to court papers filed this week.

The civil lawsuit, filed in federal court in Newark on Monday, says an emergent relief order granted last month by Administrative Law Judge JoAnn LaSala Candido, compelling the parents to submit their child to a program in Nutley, violates their right to make decisions about his education that are guaranteed under a due process clause of the U.S. Constitution.

The due process clause to the Fourteenth Amendment protects the right of parents to make decisions concerning the care, custody and control of their children, including decisions about their education.

...

Allendale filed for the emergent relief order in October saying the child would suffer irreparable harm because at the Carbone Clinic, a school selected by the parents, he does not have access to peers, a broad curriculum and does not receive a full-day program and related services.

The parents placed their son at the Carbone Clinic in October 2008 because, they claim, the school district did not make good on a promise to transition him from a home-based program to the public schools. The district, the lawsuit says, improperly managed his home program and the child’s contracted therapists, leading to a deterioration in his behavior.

The parents, also in October 2008, filed a petition for a due process hearing with the state Department of Education, Office of Special Education Programs, claiming that Allendale failed to provide their son with a free appropriate public education and seeking an order compelling Allendale to place the boy at the Carbone Clinic in the morning and in Allendale the rest of the day. They also sought compensatory education and tuition reimbursement.

Due Process

The Patriot-News has a revealing case study of due process in special ed disputes:

Perry Zirkel, an education and law professor at Lehigh University and a special education expert, said due process hearings have increased nationally over the last two decades, a trend mirrored in Pennsylvania. He said the state ranks among the 10 most litigious in the nation in special education.

And it’s showing up here in the midstate.

Central Dauphin School District’s legal spending increased by more than 260 percent from the 1997-99 school year period to the 2007-09 school year period. Over the same 10 years, legal spending in the West Shore School District increased by about 67 percent while other districts saw smaller increases.

Of those legal bills, nearly half of Central Dauphin’s for the 2007-08 and 2008-09 school years went toward legal fees pertaining to special education.

Broadening definitions have put more conditions under the special education umbrella and parents’ increasing awareness of their child’s legal rights have contributed to increased special education enrollment and litigation, he said.

See an article by Zirkel in Principal.