Bidding (Fair)well to Due Process: The Need for a Fairer Final Stage in Special Education Dispute Resolution

I. INTRODUCTION"What we have here is a failure to communicate. "1 With these words, Administrative Law Judge Brian K. Hayes summed up the relationship between a mother and school district after the mother sued the district when a teacher broke her son's arm. At the time, her son, a seventeenyear-old student with a severe cognitive disability and oppositional defiant disorder, was having a violent outburst and the teacher was attempting to restrain him. Following the incident, the mother filed for a due process hearing because the school district refused to comply with her request that her son be transferred to a different school within the district. During the due process hearing, it became clear that the mother and the district officials not only disagreed about what disciplinary measures were appropriate for the student, but they had completely different understandings of the nature of the student's disability. At the end of the hearing, Judge Hayes determined that while the teacher broke the student's arm, the district did not break any laws; therefore, the student should attend the school chosen by the district officials. After months of battling the district, the mother lost the case.Between 2000 and 2011, another 209 special education disputes in Wisconsin and Minnesota resulted in due process hearings. In all 210 cases, a failure to communicate and cooperate led parents and school districts to seek a third party ruling on their conflict. All of these cases shared a commonality: the parties could not reach an agreement without resorting to the final and most legalized form of dispute resolution available in special education conflicts. Most of the cases also shared a second commonality: the school district prevailed in the due process hearing.Is due process the best way to guarantee that children with disabilities receive a good education? In the United States, we understand education to be both a fundamental and legal right. Until 1975, however, many states had laws barring disabled children from attending public schools.2 In 1975, Congress passed the Education for All Handicapped Children Act (renamed the Individuals with Disabilities Education Act in 1990), which required states to educate disabled children in public schools. In an effort to guarantee that schools respected the law, the Education for All Handicapped Children Act also gave parents of disabled children the right to challenge "inadequate" schools by pursuing a due process hearing. Now, thirty-eight years later, we need to reevaluate due process as the mechanism for dispute resolution in special education conflicts.In this article, I argue that due process is not a fair mechanism for special education dispute resolution. Due process fails to consistently ensure that students receive a good outcome and that parents and school districts feel fairly treated by the process. Ultimately, the system fails to hold school districts accountable for providing a good education to all disabled children, and along the way due process exacts a heavy emotional toll on all parties involved.I begin by offering a framework for interpreting fairness as a multidimensional concept. Building on the existing literature, I identify three types of fairness (objective, subjective, and outcome) and analyze due process hearings with regard to those three. After considering the hearings with respect to objective fairness (the traditional procedural elements of due process), subjective fairness (the parties' perceptions of fairness), and outcome fairness (the fairness of the outcome for the student), I conclude that due process hearings are not a fair mechanism for dispute resolution in the context of special education.II. A CONTEXT FOR SPECIAL EDUCATION DUE PROCESSBefore discussing the fairness of special education due process hearings, it is necessary to understand the sphere in which these hearings take place. In the highly regulated world of special education, rules dictate not only which procedures must be followed but also which people must follow them. …