Could Due Process disappear?

“I am not in favor of the ESEA provisions that allow for expanded use of restraints and seclusion on children with disabilities. As it is….”

I was interrupted. “Mrs. Lightner, you have to understand that the Senator also hears from constituents like the Superintendents’ Association, and they are saying that they need expanded use of restraints and seclusion.”

It was my first visit to Senator Toomey’s office by myself (not with a lobbying/advocacy group). I knew what to expect in the visit, but you never know what they are going to say. Most staffers (in my experience) just nod, take notes and tell you what “their boss” is doing that is relative to your concerns. But Toomey’s people were actually pushing back. And on restraints and seclusion! That visit gave me much insight into Senator Toomey’s position on public education and suffice it to say, I’m not a fan of his. And now they (the Superintendents’ Association) are up to it again. And we know they have an ally in Toomey and many other Senators.

So what are they up to this time?

It’s the re-authorization of IDEA. And they are proposing that we do away with Due Process. Yes, Due Process as we know it could disappear.

Look, I hate Due Process. It is a system that is stacked against parents. It is in desperate need of reforms. But this solution is not one that I am supporting at this time, and here’s why.

First, here is the proposal that was developed by the Superintendents’ Association: rethinking special ed due process

They make some compelling arguments. Specifically that your outcome at due process is not an indication of the child’s overall outcome. I mean, if you go through all that….prevail at due process….and that does not necessarily mean that you are improving outcomes of kids?? That’s huge. But, can we trust their data? Because we all know that there are, ahem, some occasions when a school district is very adept at collecting data that will point to the outcome that they want. When I see corroborating data from a group like COPAA or the Arc, I’d be more inclined to believe. Or when a wider sample is done.

Second, I loathe, loathe LOATHE their argument that Due Process is bankrupting districts. This is absolutely something that the districts have brought on themselves.

Due Process is bankrupting more parents than districts, I can assure you.

What also needs to be said–that in many cases, the attorneys for the school districts are driving this. I heard from a law office:

School boards and superintendents, 99% of the time, are not aware of the fact that the district’s attorneys are advising administrators to refuse mediation or facilitated IEPs. I have experienced this twice this week…..up until the point they (school district’s attorneys) were consulted, it had been proceeding amicably. Both districts turned down requests for mediation upon the recommendation of counsel.

The attorneys aren’t recommending non-adversarial remedies to districts like mediation, because they aren’t able to participate (in PA) and there is no money in it for them. Due Process, on the other hand, guarantees many, MANY billable hours for the lawyers.”

Also, I’ve seen it, you’ve seen it….we’ve all seen it—the long, costly and expensive song and dance they do, to avoid giving a child what they need. If they would exert even half of those resources to just giving kids what they need, instead of developing these complicated schemes and reports to show why the child doesn’t need it, we’d all be better off. As an example, I once worked with a family and the charter school spent over a year of time, employees’ time, my time….denying a kid a $1500 transition program. They brought in the school psych, guidance counselors, you name it–all these people doing observations and reports to “prove” that the child did not need this program. Parents did not have the money to pay for it themselves. In the end, after a full day of mediation and countless payroll hours, a year later, she got in that program. That charter school easily made that program cost 2x-3x what it should have–and the data was there all along, that she needed this. Throughout the whole year–our data never changed.

So can this really happen? Could Due Process go away?

Short answer, yes. Right now we have a Republican majority Congress, and Republicans are backing this. I’m not making this up, that is what I was told on The Hill by staffers–that this is Republican driven effort. That being said, since ESEA/ESSA was just approved for re-auth in recent months, I don’t expect the re-auth of IDEA to happen any time in the immediate future. Even though it was due for re-auth in 2011, I would expect it not to even hit the committees for {official} discussion until after the inauguration. But that doesn’t mean that closed-door discussions are not already happening, because they are. But with a huge election (President, 88% of House seats, many Senate seats) coming up, the whole SCOTUS thing…I think that there are plenty of distractions that IDEA will not be a priority for our legislators. I could be wrong though.

What would it mean if it passed?

I have another friend who is a special ed attorney-she shared two of her thoughts with me on this:

“We could just hold our nose through the educator determination and then get to federal court” and “The idea I like is making all states require parent consent for changes so the onus is on the district to file and then giving them the burden.”

Yes, those are two really good considerations. However, taking everyone to Federal Court will just make it even more expensive than before. And, I would expect a lot of parents to cave and not want to go to Federal Court. The term itself is scary. Federal courts are not everywhere, you likely have to travel to your closest big-city. It will be more time off work. More time that the child is doing without. More stress. And as I stated in my “8 Ways” post, not all federal judges are very familiar with special ed law.

And, parental consent for all changes to the IEP. Interesting idea. If my crystal ball was working, I would predict 3 things:

It would take FOREVER to get a kid an initial eval, and even now I meet families who have been asking for them for YEARS.
Initial IEPs will be very light.
More abuse of RTI system.

Lastly, this new “system” was developed by the Superintendents’ Association. And it had costs, not kids, in mind when it was being developed. That’s rarely a good thing for our kids. At some point, I’d like to think that Superintendents would realize that maximizing an education in order to make that child a productive member of society benefits their community, not just costs. But, schools usually are reactive, not proactive. This is no different.

I also have a friend who is a school superintendent. This person said: Both the AASA and the NSBA are pushing for mandatory mediation and lessening of protections for students with disabilities. Superintendents as a group have lost their focus on what is important. Instead of trying to lessen protections they should be focused on ensuring the success and achievement of every student. If they would focus on what really matters, maybe education would be in a better place.

That same person told me that they have been in on some of the discussions of this new proposal and that the talks about our families “weren’t pretty.”

So, it’s a shame that our own superintendents are against us too. I don’t necessarily have high expectations, but hearing it first-hand still stings.

What can parents do?

Stay connected. Keep your ear to the ground (or to Facebook, ha ha). No seriously, sign up for my email list. Sign up for COPAA’s. Stay connected with your special ed friends. Learn how to become a citizen lobbyist, so that when the time comes, you’re ready.

Elections are coming….VOTE! Take a few minutes, read your candidates’ web pages and see where they stand on the issues. What I use as my litmus test is school choice–I have found that if a politician is for school choice, they usually are not an ally. I am in the camp who believes that school choice leads us down a path where our public schools will become a wasteland of the very poor and the disabled.

And pace ourselves–the re-auth of ESEA took 5-7 years, so long I forget how long it was. I would expect IDEA to take a few years. So it won’t just be one phone call or one email, we have to be in it for the long haul.

I keep saying it over and over….but we need to speak up and have our voices heard. So when the re-auth of IDEA is being discussed, we have to speak up.

Can I count on you to be a foot soldier in this? Can your child?

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Lisa Lightner

Special Education Advocate at A Day in our Shoes

Hi, I'm Lisa, owner and main writer for this site. I live in Chester County, PA with my husband and two boys. I am a Special Education Advocate and Disabilities Consultant, run this blog and the Facebook group and manage to squeeze in time for lobbying. Thanks for reading!

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