The Pennsylvania Office for Dispute Resolution recently published its most recent annual report for fiscal year 2021 (July 1, 2021-June 30, 2022). The report is rife with data and analysis. Below are the report’s top 5 revelations.
- After two years of decline, requests for due process soared to a five-year high, increasing by more than 25% over FY 2020.
A “request for due process” is another way to say that a parent has initiated the administrative process required under the federal Individuals with Disabilities Education Act to challenge a decision made by a school district regarding the child’s need for special education or related services.
Much has already been written about the effects of the COVID-19 pandemic and the resulting educational setbacks. A recent New York Times article, for example, discussed “the steepest declines ever recorded on the National Assessment of Educational Programs, known as the nation’s report card.” Commenters largely attribute the decline in scores to the effects of the COVID-19 pandemic. More children have fallen behind, and children who were already behind pre-pandemic have largely fared worse. The U.S. Department of Education has reaffirmed that the pandemic did not excuse a district’s obligation to provide a free appropriate education to district students. Under the circumstances, it is not surprising to see that requests due process have significantly risen. Even if the relationship is not causal, the fact that requests for due process are rising aligns with the widely reported educational setbacks arising the pandemic’s wake.
- Parents proceeding without an attorney to a due-process hearing were largely unsuccessful.
Of the 11 cases that were resolved through a due-process hearing, and where the parent(s) did not retain an attorney (i.e. the parent(s) proceeded pro se), the parent(s) fully prevailed in only 1 of those cases (9%). The parent(s) partially prevailed in another of those cases. But in all other cases—9 or 82%—the district (or other local educational agency) prevailed.
In stark contrast, parents who retained an attorney prevailed to some degree in over half the cases, with parents prevailing outright in 16 (or 40%) of cases and in combination with the district (or other educational agency) in 9 cases.
There may be other reasons why parents proceeding to a due-process hearing without attorney representation were not nearly as successful as if they had proceeded with representation. Indeed, those parents who did not retain an attorney may still have lost even if they had an attorney. But in all cases the district (or other local educational agency) was represented by its own attorney. It is therefore not surprising that in cases where parents did not have an attorney, they generally and predictably fared much worse than in in cases where parents were represented by an attorney.
- Over half the complaints filed for school-age students concerned issues of compensatory education.
The top three issues in due-process complaints relating to students of “school age” (i.e. K-12 students) were (1) compensatory education, (2) IEPs, and (3) placement.
The fact that over half the complaints (518) concerned compensatory education aligns with the educational setbacks resulting from the COVID-19 pandemic. Compensatory education is a remedy that aims “to replace educational services the child shilled have received in the first place and that such award should aim to place disabled children in the same position they would have occupied but for the school district’s violation” of the law. Ferren C. v. Sch. Dist. Of Phila., 612 F.3d 712, 717 (3d Cir. 2010). Compensatory education can take many forms and is often calculated by referring to the number of hours a child needs to be placed in the same position as they would have been in had the district followed the law. By its nature, compensatory services are therefore somewhat speculative and often benefit from expert witnesses providing testimony.
- Mediation has resulted in an agreement in only 30% of cases.
Mediation can be an effective tool to resolve cases when (a) the parties share some common ground (most common) or (b) one party is significantly motivated to agree to less favorable terms to end the case (least common). There is a plethora of reasons why mediation does not work, even when both parties are trying their level best to come to an agreement. For instance, special-education cases can be emotionally trying for parents who may be wary to compromise with the district. Whatever the case, because special-education cases involve complex factual and legal issues, complex remedies, and likely an ongoing educational relationship between the parties, it is not surprising that the overwhelming majority of parties that participate in mediation do not reach a mediated agreement.
- If the parties proceed to a due-process hearing, most cases end with the decision of the hearing officer; few cases are appealed to court.
During FY 2021, only 24 cases were appealed to court, and all those cases were filed in federal court. ODR notes “[o]nly two of these appeals pertained to FY 2021 requests for hearing, whit the balance pre-dating the reporting period.” Parents largely accounted for the appeals, as parents filed 87% of the total number of appeals filed. Filing an appeal did promote settlement in some cases, as the parties settled 3 appeals while they were pending (as of when ODR published its report).
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ODR’s Annual Report provides a helpful perspective into the complexities of resolving special-education disputes. The context in which special-education cases have increased suggests that the number of cases will continue to increase on annual basis. If so, school districts will be forced to contend with more cases regardless of district resources. But every student has the same right to a free and appropriate education regardless of a district’s financial resources. If you are concerned that your child is not receiving the education they need and deserve, or to initiate a due-process complaint against your school district, please request a consultation today.