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I love my job. Because of it, I frequently get to speak at conferences and do trainings. Special education law is a great field because it is constantly changing. As we have said here before special ed law is a lot closer to metaphysics than it is to contract law.
I really enjoyed a training that I did last week. It was for a state education agency and their administrative law judges,mediators and complaint investigators. I'm doing another ALJ training next week. (In some states, we are called hearing officers. In others we are called ALJs.) Although I am referred to as the "trainer," I always learn something from the participants. The participants often are active during the session- asking questions and offering solutions that work for them. Last week was no exception.
When I work with my fellow hearing officers, I am always impressed by the quality of their work and their dedication to their craft. It is rewarding.
There have been many suggestions that the special education due process hearing system be gutted, or substantially changed. What do you think?
Last week we discussed how the new qualifications for special education hearing officers pertain to the education and training of hearing officers. This week I'm going to look at a sample of a bunch of recent court decisions that have looked at the due process hearing system.
As I have mentioned in each post in this series, please note that I have a number of potential biases here. First, I am a hearing officer and/or a mediator for four states. Second, I do a lot of special ed law consulting for states. Third, I have conducted hearing officer trainings at national conferences, at regional trainings and for a number of individual states. I have trained hearing officers from every state. I have definite opinions here and my business interests could color my thinking. Although I do not believe that these interests affect my opinions, please keep this disclosure in mind.
The cases below show that state departments of education are often winding up in court because of concerns about their due process systems. While most states have escaped adverse consequences - other than the costs of litigation- the large numbers of cases definitely signals a trend.
Here are some of the key decisions handed down in calendar year 2009 involving state education hearing systems and related decisions:
Keene v. Zelman 53 IDELR 5 (6th Cir. 7/29/9) (unpublished) Parents brought a class action against Ohio SEA alleging illegal policies including improper HO training.Also alleged was that HOs were told to do nothing for the first 30 days and bill no more than one hour during that time.Sixth Circuit approved settlement that included an agreement to retrain HOs and an award of $81,000 vs SEA; Quatroche v. East Lynne Bd of Educ 604 F.Supp.2d 96, 53 IDELR 96 (D. Conn. 3/31/9)If allegation had been that an SEA system of HO training affected a number of dp hearings, parent would state claim for a systemic violation.Here the allegation was only one dp complaint, therefore no systemic violation; Chavez ex rel Chavez v. Bd of Educ of Tularosa Municip Schs 52 IDELR 229 (D.NM 2/24/9) SEA denied FAPE to student but parents not prevailing party; Emma L v. Eastin 52 IDELR 43 (N.D. Calif 2/24/9) Where LEA did miserable job of providing FAPE,and SEA is ultimately responsible for FAPE, court held SEA to an enhanced role; Delaware Valley Sch Dist v PW by James & Patricia W 52 IDELR 192 (M.D. Penna 5/5/9) Although parents may sue SEA for LEAs failure to provide FAPE, the LEA may not sue the SEA for indemnification and contribution under IDEA; DW v. Delaware Valley Sch Dist 109 LRP 80026 (M.D. Penna 12/29/9) Complaint alleging that SEA failed to properly monitor or supervise the LEA with respect to the provision of FAPE to a student stated a cause of action against the SEA; Stengle v. Office of Dispute Resolution 109 LRP 24455 (M.D. Penna 4/27/9) SEA did not violate First Amendment by cancelling contract of HO who who wrote articles about issues pending before her as HO; CG v. Commonwealth of Penna, Dept of Educ 53 IDELR 150 (M.D. Penna 9/29/9) Dist court certified a class action re the manner that SEA distributes IDEA funds;King v. Pioneer Regional Educ Service Agency 53 IDELR 196 (Georgia Ct App 11/5/9)State appeals court ruled that SEA’s general supervisory responsibilities under IDEA do not include being subject to tort-like damages;Independent Sch Dist No. 12 v Minnesota Dept of Educ767 N.W.2d 748, 52 IDELR 265 (Minn Ct App 6/23/9)
Last week we discussed the new qualifications for special education hearing officers. This week, I'm going to talk about how the new qualifications pertain to the education and training of hearing officers.
As I have mentioned in each post in this series, please note that I have a number of potential biases here. First, I am a hearing officer and/or a mediator for four states. Second, I do a lot of special ed law consulting for states. Third, I have conducted hearing officer trainings at national conferences, at regional trainings and for a number of individual states. I have trained hearing officers from every state. I have definite opinions here and my business interests could color my thinking. Although I do not believe that these interests affect my opinions, please keep this disclosure in mind.
The changes in the qualifications for hearing officers are significant. The fact that the Congress changed this section of the law signals that it has at least some concern about the quality of hearing officers.
In the most recent post in this series I described the qualifications for hearing officers added by the 2004 reauthorization of IDEA: the knowledge and ability to conduct hearings in accordance with standard legal practice; the knowledge and ability to write decisions in accordance with standard legal practice; knowledge of and ability to understand special education law.
State education agencies who train and hire hearing officers should be mindful of these changes. Those who train hearing officers should be people who have experience in conducting due process hearings and in writing decisions thereafter to be sure that the state's hearing officers are taught how to do so in accordance with standard legal practice. This new practical component is at least as important as an update on the law. New hearing officers should be able to cite prior experience in using these skills. OSEP has noted that pursuant to its general supervisory responsibility, each State Education Agency must ensure that its hearing officers are sufficiently trained to meet the new qualifications enumerated in IDEA. 71 Fed. Register No. 156 at page 46705 (August 14, 2006.)
In addition, I have heard from a number of states that OSEP monitoring visits are now focusing upon hearing officer training. State Education Agencies are being asked to explain and justify their trainings. They are also being asked to produce training agendas and the qualifications of trainers. All states should take a look at how they train their hearing officers and ask whether improvements might be needed.
Next week we will look at some of the many recent cases where state hearing systems have been sued by various stakeholders. We will also examine whether lawyers make better hearing officers.
In your experience, what has been the quality of the due process hearing officers you have encountered?
In the first part of this series last week, I discussed the options that parties have when they have a dispute concerning the educational program, etc for a child with a disability. The options are numerous and sometimes confusing, so I encourage you to read that post before the others in this series. Today, I'm going to discuss the new (since 2005) mandatory qualifications for hearing officers. You can find a searchable version of the he IDEA statute and the federal regs at the U. SDepartment of Education "Building the Legacy" website, which also has a link on the lefthand side of this blog. In future posts I will explore my ideas regarding the training of special ed hearing officers and maybe their care and feeding. The final post in the series will include some thoughts on qualities that make a good hearing officer.As I said last week, please note that I have a number of potential biases here. First, I am a hearing officer and/or a mediator for four states. Second, I do a lot of special ed law consulting for states. Third, I have conducted hearing officer trainings at national conferences, at regional trainings and for a number of individual states. I have trained hearing officers from every state, and I love training hearing officers. I have definite opinions here and my business interests could color my thinking. So please bear that disclosure in mind.
Before the 2004 reauthorization changes took effect (on July 1, 2005), the only qualification for a due process hearing officer under the Individuals with Disabilities Education Act was that the hearing officer not be an employee of the State Education Department or the school district. (old) § 615 (f)(3); and that he not have a personal or professional interest that would conflict with objectivity, 34 C.F.R. Section 300.508(a)(2)(old regs).The reauthorization added three more qualifications for due process hearing officers.The following new qualities were required for a special ed hearing officer: the knowledge and ability to conduct hearings in accordance with standard legal practice; the knowledge and ability to write decisions in accordance with standard legal practice; knowledge of and ability to understand special education law.Section 615 (f)(3)(A)(ii)-(iv); 34 C.F.R. § 300.511(c).
So what is your opinion, are these qualifications enough to be a good hearing officer? Is more needed? On the other hand, would we be lucky to find a trial court judge on any given day who met these criteria? What do you say?
I know that a number of the readers of this blog are professors who teach future teachers. I know a bunch of them, and they are really good at what they do. They are enthusiastic and dedicated to their students and those children whom their students will be teaching. But the way we train teachers is suddenly in the news- big time. I suspect that the following comments don't pertain so much to the institutions where my friends work, but a national debate has begun and we need to discuss it here.
Secretary of Education Arne Duncan recently unleashed a firestorm when he suggested that the overall quality of teacher preparation programs in America is 'mediocre." Citing studies that over 60% of new teachers feel unprepared and his own discussions with teachers who feel that they did not receive enough practical classroom training and that they were not ready for behavior issues and dealing with poor children, Duncan stated his case. He called for revolutionary change in our methods of teacher preparation and stated that one million new teachers will be neede
d in the next five years. Here is the New York Timesstory on Duncan's speech.
In a recent New York Times op-ed piece, Susan Engel, director of the teaching program at Williams College, took this point a step further. Here is the article. She suggests that teachers should be trained much like surgeons; working side by side with a very skilled mentor, getting plenty of feedback and taking on more and more responsibility as they improve as a teacher. She also suggests that student teachers and their mentors review videotapes of themselves in action to help them improve. She argues that student teachers should continue to study the subject that they will be teaching as well as education techniques; she strongly emphasizes the need for more training on the developmental needs of children. Finally she argues that school districts should be given the resources to hire new teachers in groups of seven to help develop more camaraderie.
These are some intriguing thoughts. I really like the surgeon-method idea. Teachers are important. Special education teachers are included within this group of important people. I think that one could easily make an argument that teachers, of general or special ed, are at least as important to our society and its future as surgeons. But if we train them like surgeons, shouldn't we also pay them like surgeons?
Also making recommendations for changes in teacher preparation and recruitment, as well as radical changes in teacher pay and evaluation methods, is the report issued Tuesday by the think tank called the Strategic Management of Human Capital. Scrolling down this link will lead you to the full report. I understand that the teacher unions fell that the committee that prepared their report ignored their input.
One of the problems that I have with the whole No Child Left Behind analysis is that it seems to blame the entire education problem on bad teachers. There are bad teachers; as a public school system product, I can say without equivocation that there are bad teachers. But really, there have always also been plenty of great teachers. I have a hard time believing that some bad teachers are the only thing wrong with the education system. Also the merit pay concept sounds like a good idea, but only if the evaluation system can be designed fairly- so that it truly identifies good teachers and not just the principal's pet or the popular kid!
What are your ideas on this topic? Do we need to make changes in the teacher preparation system? Are there other reasons that the education system is having problems?
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