Legal options for resolving disputes in special education.

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Since the mid-1970s, with the passage of the Individuals with Disabilities Education Act (IDEA) and Section 504 of the Rehabilitation Act ("Sec. 504"), special education became highly legalized. Although it is universally agreed that the best way to avoid and resolve disputes is through informal communication and cooperation between parents and school officials, litigation and other legal activity for resolving disputes has increased significantly in the past 30+ years. Knowing what the alternative legal mechanisms are under the IDEA and Sec. 504 is useful for many reasons, including as leverage to promote informal resolution.

As quick background, the basic framework consists of the following legislation and regulations:

* the IDEA--a federal funding statute that needs Congressional reauthorization every 10 years or so and that has various "strings" attached, including the school district's obligation to provide "free appropriate public education" in the "least restrictive environment"

* Sec. 504--a federal civil rights act that, along with its more recent sister statute, the Americans with Disabilities Act (ADA), prohibits discrimination based on disability but that has a broader definition of disability and less detailed requirements for schools than does the IDEA

* state special education and civil rights laws that, depending on the state, extend the requirements of the IDEA and Sec. 504

IDEA

When a dispute arises concerning the eligibility, program, or placement of a student under the IDEA, the parent has two alternative avenues for legalized resolution. One option is adjudicative, or a court-like process, and the other is administrative, or an investigatory process. The school district must provide parents with a notice of their procedural rights, including these two separate options, upon a change in identification, evaluation, program, or placement of the child with a disability. The website of the state education agency provides the forms and details for both mechanisms.

IDEA Due Process Hearing

The adjudicative option is to file for a "due process hearing," which an impartial hearing officer--typically appointed by the state--conducts. Under the latest version of the IDEA, which Congress reauthorized in 2004, two steps precede the due process hearing--mediation, which is optional, and a resolution session, which is mandatory. The purpose of both steps is to resolve the dispute through more and better communication, with the assistance but not the decision of a third party. In contrast, the due process hearing culminates with a binding decision, supposedly within 45 days but usually quite a bit longer due to the adversarial aspect of this process. Either party--the parent or the district--may appeal the hearing officer's decision in state or federal court. However, courts will generally refuse to hear suits if the suing party has not first resorted to a due process hearing.

IDEA State Complaint Procedure

The second, administrative option under the IDEA is to file a written complaint with the state education agency. The IDEA regulations require the state to carry out an independent investigation, provide the parties with an opportunity for mediation, and issue a written decision within 60 days as to whether the district violated the IDEA as the complaint alleged. The regulations also require that if the parent has filed for a due process hearing on any of the issues in the written complaint, the state must hold in abeyance those parts of the complaint until the conclusion of the due process hearing.

Sec. 504

Given the general understanding that every student covered by the IDEA is also covered by the broader definition of disability under Sec. 504, parents of children with Individualized Education Programs (IEPs) under the IDEA may also access the dispute resolution processes that Sec. 504 requires for each district. In some cases, compliance with Sec. 504 may be incomplete, because its requirements, including the dispute resolution mechanisms, are not as well known.

Sec. 504 Grievance Procedure 

The Sec. 504 regulations require each school district to have a multi-step internal grievance procedure for resolving any issues of alleged disability discrimination, including but not limited to those of students. If the district does not have such a procedure readily available, it serves in effect as a strike in the complainant's favor at the next step in the process, a written complaint to the Office for Civil Rights, which is the federal agency responsible for administering Sec. 504 and the ADA in relation to public schools. On the other hand, the complainant is not required to resort to the grievance procedure before filing an OCR complaint.

Sec. 504 OCR Complaint Procedure

The Sec. 504 regulations also provide for enforcement via a process that is similar to the IDEA state complaint procedure. This process starts with a written complaint to OCR followed by an investigation and, if an informal resolution is not obtained, a written letter of findings by OCR. For a copy of the online complaint form, the address of the regional office of OCR for your state, and the related information, go to this part of the U.S. Department of Education's website: http://wdcrobcolp01.ed.gov/CFAPPS/OCR/contactus.cfm.

Sec. 504 Due Process Hearing

Although not as well known, Sec. 504 expressly requires every district to have available an impartial hearing process for parents who want to avail themselves of an adjudicative process for alleged discrimination on the part of their child with a disability. In the relatively few states that have legally authorized their IDEA due process hearing officers to decide Sec. 504 issues alone, i.e., without accompanying IDEA issues, there is no big problem for school districts. But in the other states, the district has the responsibility to arrange for the impartial hearing officer within a reasonable period of time, which may serve as another strike against the district in case of a complaint to OCR.

Conclusion

The mechanisms for students with IEPs under the IDEA are multiple, and knowledge of them--even without necessarily resorting to them--can be advantageous to parents and other caregivers. If the parent does resort to one or more of these procedures, an attorney is not required, even--based on a Supreme Court's decision earlier this year--for IDEA litigation in federal court. However, having the advice of a specialized attorney or at least advocate would be useful for all of these options, and the representation by such an attorney or, in the various states that allow it, an advocate is generally advisable for the adjudicative options. In the long run, however, it is to everyone's advantage, including the child with a disability, for disputes to be avoided or resolved through open communications and mutual trust. Nevertheless, knowing that there are various legalized mechanisms, which parents may use singly or in combination, may help both them and their district counterparts resolve matters through the preferable, informal route.

Requests for references used in this article can be made to [e-mail].

Perry A. Zirkel is university professor of education and law at Lehigh University. He has a Ph.D. in Educational Administration and a J.D. from the University of Connecticut. He has a Master of Laws degree from Yale University. He has written more than 1100 publications, with an emphasis on legal issue in special education. He is the author of the two-volume reference, Section 504, the ADA, and the Schools and the recent CEC monograph, The Legal Meaning of Specific Learning Disability.

Perry A. Zirkel, Professor of Education and Law, Lehigh University