Great Hearing Officer Conference

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OK so I'm still getting the hang of my mobile-posting voice recognition technology.

The last post should read "Great Hearing Officer Conference." Lost in translation is the phrase that comes to mind. I was describing the conference of the National Association of Hearing Officials. I have been lucky enough to have served as a member of the faculty for this conference for the last five years. It is a fantastic group of people. They all do administrative hearings of various kinds. They also have some fun.

This year the conference was in beautiful Boise, Idaho. Great place. I also learned a lot about Basque culture. (I am sometimes amazed by what I do not know about the world and the people who inhabit it!) There was also a feast featuring Paella and Basque dancers. Potatoes are fantastic in Idaho.

Concerning the hearing process, I presented three sessions. There were many other excellent sessions offered including a useful diversity training. Keynotes by Justices of the Idaho and Oregon state supreme courts and an inspired defense of the rule of law by the Dean of the U of Idaho School of Law were each worth the price of admission.

I came away with two new thoughts. First, a good hearing officer must be a Renaissance person. A wide experience and world view coupled with appreciation for music, art, and life are minimum requirements.

Second, I got confirmation of a view I have been developing. A friend who is one of the foremost experts on Administrative law confirmed my newly-formed opinion that the reason that the federal and state Administrative Procedure Acts are vague regarding the hearing process is by design. Some experts believe that the law has not yet caught up to the reality of current day administrative law where the "trial" for many types of disputes takes place in an administrative hearing. Purists would have all "trials" take place before an Article III court (the judicial branch of government). If fact, today many disputes are resolved by administrative hearing officers (who are really part of the executive branch.) I disagree. I believe that the administrative hearing process is left vague in order to permit the administrative hearing officer to fashion procedures that will allow the fair presentation of evidence given the facts and circumstances of a dispute. This individualized justice ensures that the parties receive due process of law for a particular dispute and set of facts. Consistency is less important than fairness.

Any dissenters?

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Expedited Due Process Hearings in Discipline Cases

As many of you know, some due process hearings must be expedited, Specifically, in cases involving a change of placement of a child with a disability for disciplinary reasons, a request for due process hearing must be an expedited hearing. IDEA Section 615(k)(4). In other words, the hearing must begin within twenty school days of the complaint being filed. If there is no intervening summer vacation or hunting season (local color joke - insert your local version here), or snow days, that can be very fast indeed.

In its recently updated Questions & Answers Document on Dispute Resolution, the Office of Special Education Programs of the federal Department of Education, the agency that covers special education adds some new wrinkles on this matter. Most of the Q & A document is the same as the previous Q & A on Dispute Resolution, but there are two developments concerning discipline. Concerning expedited hearings, OSEP opines that the parties cannot agree to extend the deadline for an expedited hearing. This surprises me a little. The other development is OSEP's opinion that a school district can go directly to court for a safety injunction in a discipline case without first exhausting administrative remedies in a due process hearing. It will be interesting to see if courts give deference to OSEP's opinion on the issue of exhaustion. Under principles of administrative law, a court must give deference to OSEP's guidance but they are not required to afford such guidance precedential value.

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Before this recent development, some of the states I work with wondered how the IDEA'04 requirement that there be a resolution meeting figured into the scheduling of an expedited hearing. See 34 C.F.R. Section 300.532(c)(3). So I wrote to the OSEP. OSEP confirmed my reading: the resolution period of fifteen calendar days runs concurrently with the twenty school days within which the hearing must be scheduled. Letter to Gerl 51 IDELR 166 (OSEP 5/1/8). So a hearing officer must schedule the hearing after the fifteen calendar day resolution period and before the twenty school day deadline. This is complicated by the fact that the parties must disclose their hearing evidence at least five business days before the hearing. Try working that out on a calendar and then work in the calendars of two lawyers and the parties. Fun stuff.

Note that this is the only place in IDEA where all three kinds of days (calendar days= the default type unless otherwise specified; school days and business days) converge. Why not make it extremely confusing ? Why not derf days or personal hygiene days or pirate days? Seriously though why so many different kinds of days?