Access and Equity in the Due Process System: Attorney Representation and Hearing Outcomes in Illinois, 1997-2002

The President’s Commission on Excellence in Special Education Report (U.S. Department of Education Office of Special Education and Rehabilitative Services, 2002) characterizes the special education system as adversarial in nature and discusses the damaging effects of real and potential litigation on special education outcomes. The President’s Commission Report was created as a guide to Congress’s impending reauthorization of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C.A. § 1400). The President’s Commission states that:

Numerous parents, teachers and school administrators complained during the Commission’s public sessions about the excessive focus on due process hearings and litigation over special education disputes. Disputes of all sorts divert parent and school time and money, and waste valuable resources and energy that could otherwise be used to educate children with disabilities . . . .

These threats create an adversarial atmosphere that severely limits the ability of parents and schools to cooperate . . .. The threat of litigation alone has costs for teachers, students and taxpayers . . .. these costs and the dissatisfaction with the system merit serious reform (U.S. Department of Education Office of Special Education and Rehabilitative Services, 2002, p. 40).

The President’s Commission Report’s frequent references to conflict and litigation suggests an image of the IEP meeting as typically attended by parents with attorneys at their side, demanding expensive programs and services and bullying schools into providing them. According to one school administrator, the Individualized Education Program (IEP) has become a “litigation document (p.16).” “The original concept of IEPs as an instructional framework for a defined period of a child’s education has been lost to the greater need to document legal and procedural compliance (pp.16-17).”

The President’s Commission Report repeatedly asserts that these trends must be curbed. Among the Report’s recommendations is the creation of voluntary binding arbitration systems under IDEA through which parents and schools would waive - “with full knowledge of the consequences - their right to further procedural protections and appeals in the IDEA due process system (p. 41).”

But while the President’s Commission Report offers some generalizations regarding the roles of parents and schools within the special education system, it does not provide a detailed discussion of why the enforcement of compliance and access to procedural safeguards are so important to ensuring disabled students’ educational rights. According to the National Council on Disability (NCD), there is pervasive noncompliance with IDEA across state and local educational agencies throughout the U.S. The NCD report “Back to School on Civil Rights” - a comprehensive assessment of IDEA compliance - concludes that “failure to ensure compliance with IDEA is widespread and persists over time. While noncompliance is regularly documented by the Department of Education, sanctions have rarely been used (2000).”

Why has this noncompliance persisted in spite of the creation of laws and regulations to govern special education? What the President’s Commission and other analysts have not fully taken into account is the inequality in the roles of parents and schools within the special education system, the differential resources they are able to bring to disagreements, and the effects of this inequality on special education decisionmaking.

Due Process Hearings in Illinois, 1997-2002

While the President’s Commission Report reaches broad conclusions about the adversarial nature of special education, the “culture of compliance,” and the need to reduce conflict, it also identifies the “collection and analysis of data on due process and dispute resolution” as one area in which basic research is needed (2002, p. 67). A “due process hearing” is an administrative hearing before an impartial hearing officer that parents or school districts may elect when a special education dispute cannot be resolved between the parties. It is an essential procedural safeguard created under IDEA, the outcome of which may be appealed by either party to the court system.

This study looks at the experience of parents and school districts in the due process system in Illinois, and examines factors that affect which party prevails in a hearing. The data for this study consists of 343 due process hearings that were decided in Illinois between July 1997 and June 2002.¹ These data were collected a group of attorneys interested in special education issues and the author, and comprise all of the due process hearings in which decisions were issued during this time period.² Each hearing decision was reviewed in either full report or summary format.³ Data items collected for each report included: the name of the hearing officer, the school year in which the decision was issued,⁴ whether a parent or school district requested the hearing, the major issues in the case, whether a decision was issued or the case was dismissed, the prevailing party, and whether the parties had attorney representation.

The primary data analysis technique employed in this study is the analysis of frequency tables with the chi-square statistic for testing statistical significance. A multivariate statistical analysis was also performed to predict the likelihood of a parental win vs. loss in a due process hearing as the result of multiple factors including hearing officer, case characteristics, access to attorney representation, and school year.

A key element in this research is the determination of the prevailing party in a hearing. The designation of the prevailing party – parent or school district - is based on the findings and remedies indicated in the due process reports. For example, the following report indicates a decision in favor of a school district:

the hearing officer ruled that the placement proposed by the school district complied with IDEA. The hearing officer declined to issue any of the findings or grant any of the relief requested by the parents (ISBE Hearing No. 6).

As defined here, a parental “win” means that the parent substantially prevailed on at least one, but not necessarily all, of the major issues in a case. In the following example, the parent was designated as the prevailing party even though the school district also won on at least one major issue:

The parents requested the hearing stating that the school district failed to provide a FAPE for the student. The school district failed to conduct a case study evaluation as requested by the parents. The parents sought an independent evaluation and two and a half years later placed the student in a private specialized school . . . . The hearing officer ordered the district to reimburse the parents for the evaluations undertaken on the student's behalf. The district was further ordered to conduct a comprehensive case study evaluation and determine eligibility for services and programs. Reimbursement for tuition and transportation was denied (ISBE Hearing No. 383).

Is Special Education in Illinois an “Adversarial Process”?

The 1997 amendments to IDEA were intended to make parents equal participants in the process of developing Individualized Educational Plans and to put them on an even footing with members of their children’s school teams—teachers, case managers, speech therapists, and so forth. While this was meant to ensure that their special knowledge of their child’s disability would be taken into account in the design of special education programs, it also created the potential for disagreement and conflict.

But is special education accurately characterized as an increasingly or primarily adversarial process? Table I shows data from the Illinois State Board of Education (ISBE) on the number of requests for due process hearings and the number of hearing decisions in Illinois, 1997 to 2002.⁵ It appears from ISBE’s statistics that the number of hearing requests and decisions has remained relatively constant over the last five years. The number of hearing decisions issued during this period varied from year to year by a maximum of only 13 decisions.

These are extremely small numbers relative to the overall population of special education students in Illinois. For example, during the 2000-2001 school year, there were 296,095 children in Illinois between the ages of 3 and 21 years receiving Part B services under IDEA (Office of Special Education Programs, Office of Special Education and Rehabilitative Services).⁶According to the Illinois State Board of Education, during 2000-2001 there were 485 requests for due process hearings. These requests represent 0.16 percent – less than two-tenths of a percent – of students receiving Part B services under the IDEA during that year. Another way of stating this is that only about 1 in every 610 children and families were involved in the due process hearing system in any way during this time period.

Because many due process requests are settled or withdrawn, during 2000-2001 there were only actual 66 hearings in which a decision was issued according to ISBE. One may conclude from this that a due process hearing that goes forward is a fairly rare event: there was only about 1 hearing for every 4,486 families with children being served in Illinois under IDEA Part B, 3 to 21 years of age.

But even more unusual is when a parent is the prevailing party in a hearing. According to data for collected in this study, 16 families won due process hearings during the 2000-2001 school year. This represents 1 in 18,506 families with children in the special education system.

Access and Equity in the Due Process System

In Illinois there is substantial inequality between parents and school districts in their access to the due process system, ability to obtain representation by an attorney, and in their likelihood of prevailing when a hearing does occur. On average, parents are significantly less likely than school districts to win a due process hearing conducted by an impartial hearing officer. Between July 1997 and June 2002, parents won 30.5%, less than one-third, of all due process hearings in which a decision was issued (see Table 2). School districts prevailed in due process hearings 69.5% of the time during these years.

There were some hearing officers who made no hearing decisions favorable to parents during the time period of this study. Figures 1 shows the percentage of hearings decided for parents and school districts by hearing officer for all cases in which a decision was issued, July 1997 to June 2002.⁷

There were 20 impartial hearing officers who issued 4 or more decisions during this time period. The number of decisions made by hearing officers during this time ranges from 4 to 28. It should be noted that these data include only cases in which decisions were issued within this specific time frame, and do not reflect the record of hearing officers in due process cases that were settled or dismissed.

Figure 1 shows that 9 hearing officers decided cases more often than average for parents (that is, more than 30.5% of their decisions were in favor of parents), while 11 hearing officers decided more often than average for schools (more than 69.5% of their decisions were in favor of school districts).

Among hearing officers who decided more often than average for parents, the percentage of decisions for parents ranges from 33.0% to 73.0% percent. Among the hearing officers who decided more often than average for school districts, the percentage of decisions made for school districts ranges from 71.0% to 100.0%. Figure 1 shows that there are 7 hearing officers in Illinois who made 80.0% or more of their hearing decisions in favor of school districts during this time period.

Hearings Requested by School Districts

School districts use the due process hearing system to assess the need for, arrange for the provision of, or change special education services for students when parents do not give permission for, do not participate in, or do not agree with their children’s evaluation, reevaluation, or placement. School districts often file single-issue cases or those which are fairly narrowly defined, for example, to obtain consent to conduct a case study evaluation or for the initial placement of a child in a special education classroom. But even though many of these cases are narrower than those typically brought by parents, they have a potentially major impact on the educational opportunity of students with disabilities given that they often involved obtaining access to, or remaining in, the special education system.

An example of this is when a school seeks to change the placement of a special education student, for example, by moving the student from a less restrictive to a more restrictive environment. In one case

the hearing was requested by the district because they believed that the student needed a more structured setting (therapeutic day school) in order to control and modify his behavior. The parents contended that the district had violated the students rights with regard to the student’s classification from autistic, to autistic-like to autistic-like/EDB. The parents believed that the proposed therapeutic day school was too restrictive and that he should be placed as close to home as possible . . . .The hearing officer found that the district’s proposed placement in a therapeutic day school was appropriate, found no violations with regard to the suspension and found no violation with regard to the student’s classification (ISBE Hearing No. 89).

School districts requested 28.1% of all of the hearings in which a decision was issued (see Table 2). Table 2 shows that the number of hearings requested by school districts has fluctuated over the years, but appears to be increasing.

School districts have also been winning an increasing proportion of all hearings since about 1998. According to Figure 2, over the last four years school districts have been increasingly likely to prevail in hearings relative to parents. During the 1998-1999 school year, parents prevailed in 38.3% of cases, but this dropped to 20.0% in 2001-2002. This trend most likely reflects such factors as the changing mix of hearing officers deciding cases, the increasing number of hearings requested by school districts, and perhaps other factors as well.

When school districts are the requesting party in a hearing, they are overwhelmingly likely to prevail. School districts won 91.2% of the cases they brought to a hearing. Figure 3 shows prevailing party by school year and is broken down by the party who requested the hearing. This figure shows that between 1998 and 2002, parents have had almost no chance of winning a hearing brought by a school district. For three years in a row - school years 1999 to 2001 - parents won none of these cases.

Hearings Requested by Parents

When a parent rather than a school district initiates a hearing, the parent is more likely to prevail – but still less than half of the time. Figure 3 shows that parents prevailed in 39.0% of the cases they brought between July 1997 and June 2002, compared to 61.0% for school districts. Again, these data suggest an increasing divergence in parents’ and school districts’ likelihood of winning over time: parents won 46.2% of the cases they brought in 1998-1999, compared to 30.6% in 2001-2002.

Parents most often brought placement cases, but they also brought other types of cases, such as those concerning the provision of “a free and appropriate public education (‘FAPE’),” content and implementation of the Individualized Educational Plan, eligibility for special education, and access to related services. Typical cases in Illinois included those in which parents sought a variety of placements, including placements in local neighborhood schools as well as private and residential placements.

Attorney Representation and Due Process Outcomes

Representation by an attorney is the most important single predictor examined here of whether a parent will win or lose a due process hearing. School districts have attorney representation more than twice as frequently as parents. Figure 4 shows that in 94.0% of all hearings, school districts were represented by attorneys. Parents had attorney representation only about 44.0% of the time. Thus, in about half of all due process hearings, attorneys represented school districts while parents were not represented. In such circumstances, parents are significantly more likely to lose.

Figure 5 shows the effect of attorney representation on the outcomes of due process hearings for 276 cases in which hearing decisions were made and information about attorney representation for both parties is known. This figure shows that access to attorney representation by parents significantly increases their chances of winning a due process hearing: 50.4% of parents with attorney representation won due process hearings, compared to only 16.8% of those without attorney representation. This finding is statistically significant.⁸

This suggests that attorney representation equalizes parents’ chances of prevailing with those of school districts. Attorney representation does not give parents an overall advantage in the hearing system, but puts them on a more even footing with school districts. If parents are not represented, however, school districts are on average 5 times more likely than parents to prevail.

Figure 6 again shows the impact of attorney representation on hearing outcome, this time broken down by whether a parent or school district requested the hearing. As was previously shown, parents are more likely to prevail in a hearing when they have brought the case. Access to attorney representation increases parents’ likelihood of prevailing regardless of whether the parent or district requested the hearing: however, this effect is greater if the parent requested the hearing. Parents actually won more cases than they lost if they both requested the hearing and were represented by an attorney. If a parent requested the hearing but was not represented by an attorney, the school district was 3.3 times more likely than the parent to prevail.

Finally, Table 3 presents a multivariate statistical analysis of the effects of attorney representation, hearing officer, case characteristics, and school year on parents’ likelihood of winning a due process hearing. This equation allows a look at how several factors impact a hearing outcome and an assessment of their relative influence. Logistic regression is used here for the prediction of the binary outcome of whether a parent won or lost a due process hearing.

Table 3 shows that factors that significantly increased a parent’s chance of winning a hearing are: (1) if the parent had attorney representation, (2) if the parent requested the hearing, (3) if a hearing officer was assigned who makes decisions for parents more often than the average hearing officer, (4) if the hearing included a broad range of issues rather than a single, narrow issue; and, (5) the earlier in time that the hearing took place during the school years 1998 to 2002.

Conversely, factors which significantly increased a school district’s chance of winning are: (1) if the parent was not represented by an attorney; (2) if the school district requested the hearing, (3) if a hearing officer was assigned who makes decisions for school districts more often than the average hearing officer, (4) if the hearing was focused on a single, narrow issue; and, (5) the later in time that the hearing took place during the school years 1998 to 2002.

Of course, not all of the relevant factors that impact hearing outcomes are measured here, nor are they necessarily under the control of the hearing participants. Of special note in the regard is the effect of time, measured here in terms of school years. Figure 2 showed the negative trend over time in parents’ chances of winning a hearing and the notable drop in the percentage of cases won by parents in the 2002 school year. Table 3 measures the average effect on hearing outcome of moving forward 1 school year in time beginning in July 1997, while holding constant the other factors measured in the equation. The average effect of one year in time on hearing outcome is negative and significant: the further forward in time from July 1997 that a hearing occurred, the less likely the parent was to have won.

The significant effect of the year in which a hearing occurred on the prevailing party suggests that even when the effects of attorney representation, case characteristics, and hearing officer are controlled, there may be other factors that have changed over time and affected equity within the due process system.

Conclusion

The right to a due process hearing is a fundamental procedural safeguard created under IDEA and a central protection of the educational rights of children with disabilities. This research suggests that more attention should be given to the unequal resources of participants within the due process system, and within special education more generally, and how these help to shape educational opportunity for children with disabilities. In the due process system in Illinois, the majority of hearing officers’ decisions are made in favor of school districts. This reflects, among other things, schools’ greater access to attorney representation relative to parents. When parents do have attorney representation, their chances of prevailing in a due process hearing are equalized with those of school districts. These findings suggest that those concerned with the reauthorization of IDEA give careful assessment to policy proposals that would reduce the current focus on IDEA compliance, limit procedural safeguards, and reduce parental participation and access to attorney representation within the special education system.

Melanie Archer, Ph.D.

Is Special Education in Illinois an “Adversarial Process”?

Access and Equity in the Due Process System

Hearings Requested by School Districts