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Evaluating the fairness of special education hearings.

Evaluating the Fairness of Special Education Hearings

It has been 15 years since the U.S. Congress, through the Education for All Handicapped Children Act of 1975 (Public Law 94-142), required the states to provide due process hearings to parents who objected to the educational classification, program, or placement that schools offered their children. The mandated hearings included all the elements generally thought to be essential to achieving individual justice (Friendly, 1975). Participants have the right to receive adequate notice, to examine school records, to be represented, to call and cross-examine witnesses, to be heard by an impartial hearing officer, and to appeal adverse decisions.

Congress imposed these procedural safeguards not only on the assumption that they would secure parental participation in educational decision making vital to children's welfare, but also in the traditional belief that such safeguards are the best way to achieve accuracy in fact-finding and fairness. Accuracy, as it relates to the "appropriate education" mandated by P.L. 94-142, may be defined as the correspondence of the hearing officer's decision with the true facts of the child's situation and with an appropriate application of relevant rules to those facts (Mashaw, 1974). Within this framework, fairness becomes the degree to which hearing-officer decisions produce accurate decisions.



Despite the fact that the imposition of due process hearings to resolve special education represents a major intrusion of the judicial model into the field of education, little research has examined their capacity to produce fair decisions. Researchers have been inhibited by the difficult of studying events as complex as hearings. They have been daunted too by the problem of operationalizing the idea of fairness. To be viewed as "objectively" fair, a decision must correspond to the true facts of the case.

In a laboratory experiment (involving a criminal case, for example), it might be possible to examine the capacity of due process procedures to establish the true facts of a case--when the researcher stipulates all the circumstances of a simulated crime in advance and the "judge's" decision is confined to the simply binary choice between guilt and innocence. In the case of a real crime, however, the problem becomes more difficult because the facts are always open to varying degrees of interpretation. When the issue is what constitutes an appropriate education for a particular child (Kirp, Buss, & Kuriloff, 1974), objectivity seems to be an almost impossible goal. There are two major reasons for this.

First, abundant evidence suggests that equally well-trained professional educators, working in good faith and under the best circumstances in a nonadversary context, cannot agree on either the assessment or replacement of children with disabilities (Flor, 1978; McDermott, 1981). This inability to agree on the true facts of special education cases is consistent with findings from other fields indicating that psychiartrists cannot agree on psychiatric diagnoses (Freeman, 1971; Sandifer, Hordern, Timbury, & Green, 1968; Sandifer, Pettus, & Quade, 1964; Spitzer & Fleiss, 1974) or clinical psychologists on emotional and behavioral disorders (Achenbach & Edelbrock, 1978; Little & Shneidman, 1959; Zubin, 1967).

Second, while it may be possible to attribute such disagreements in psychiatric and psychological cases to a lack of current knowledge, the problem in educational decision making its that there is no one "best" or "most appropriate" placement. In fact, a whole range of programs exist that can help a particular child, and the degree to which they do depends on a complex mix of variables raning from the child's current status and personality to the personality and training of the particular teacher and the nature of the other children in the class. thus, the bility to choose an appropriate program depends on the amount of knowledge decision makers have about the child, what resources are available, and the art of matching them effectively.

In this light, accuracy does not seem to hold much promise as a criterion for establishing an objective link between the provision of a due process hearing in special education, as an input, and fairness, as an outcome. One study (Kuriloff, 1985) substituted for "fairness and accuracy," the capacity of parents to influence the hearing officer's decision in their favor. While not as grand a value as "Truth," the legal literature recognizes the importance of participants' capacity to influence administrative decision making as a criterion of justice, when their vital interests are at stake (Buss, 1979; Friendly, 1975; Mashaw, 1976). Using this a measurable standard of justice, Kuriloff found that the way parents used due process was associated with the results they achieved. Parents who called more witnesses, offered more exhibits, presented their cases more effectively, and questioned the schoo's witnesses more thoroughly, won their cases more often than parents who used the procedures less effectively.

When justice is defined as the capacity to influence the outcome of official decisions in a desired way by making effective use of adversary procedures, due process hearings appear to be achieving what Congress had in mind when it imposed them on special education. but this objective measure of fairness tells us nothing about the experience of participants as they go through the process, something Congress also cared about (Neal & Kirp, 1985).



Much experimental evidence supports the idea that people who have more access to adversary procedural protections, including the option to appeal unfavorable decisions, feel more fairly treated than those who have less access, regardless of whether they "win" or not (Sheppard, 1985; Thibaut & Walker, 1975). Field studies in traffic and small claims courts support these findings, revealing that the main determinant of satisfaction wit legal authority is perceived procedural fairness, not penalty (Tyler, 1984). Studies of people facing more severe penalties, however, have shown a relationship between outcome and perceived fairness (Casper, 1978). This suggests that asthe outcome becomes more important to the parties, their standards for judging the treatment they receive may shift from procedural fairness to obtaining what they desire. But perhaps the reality is more complex.

What people value most in a given situation probably depends on a subtle calculus involving their judgment about their emotional and financial investment, their temperament, and the level of their moral development or capacity to "take the role of the other." It seems reasonable, however, to assume that most people value both good outcomes and fair treatment.

For example, most children want the biggest piece of cake but are satisfied when their parents require one sibling to cut the cake and then allow the other sibling to choose the piece. Again, after entering the state lottery, most people who lose do not feel wronged unless an unfair procedure was followed. In contrast when a person sustains a serious injury because of someone else's negligence, an elaborate trial, replete with procedural safeguards, that ends in no award can never replace a judgment covering medical costs, pain, and suffering.

But, to take a different example, an accused criminal knows whether he or she has actually committed the crime. If a guilty person receives full procedural protection, is convicted, and still feels unfairly treated, presumably the explanation lies in massive psychological denial. Neither the law nor the average citizen would have much concern for such feelings of subjective injustice. Yet, even in the case of the self-acknowledged criminal, it is likely he or she would still feel unfairly treated if full procedural safeguards had been denied. Thus, having one's "day in court" may be viewed as a necessary, but not a sufficient condition for what we are calling the usbjective sense of justice. Certainly, this seems probable in the case of parties to special education disputes.

Following this logic, we would expect parents and school officials to share a sense of the necessity of due process hearings as a final resort, no matter how distasteful they find them (Neal & Kirp, 1985). But no one really knows for certain what the "true facts" are in special education cases and, therefore, what an "accurate decision" would look like; and, indeed, more than one outcome can be equally beneficial (or equally deleterious) for the child. It seems reasonable, then, to expect parents to rely on what they themselves believe is best for their children. If experts disagree as widely as the research suggests, how much confidence can such parents be expected to have in a hearing officer's adverse decision? Assuming that parents, more than anyone else, have a large personal investment in their children's welfare, we hypothesize that their perceptions of fairness will be correlated with getting what they want for their children. Further, since getting what one wants may be more a function of the resources one brings to bear in using procedures, than on the availability of the procedures per se, it is likely that the perception of fairness will be associated with parents' socioeconomic status (SES), as well as with outcome (Spohn, Gruhl, & Welch, 1982).

In contrast, for school officials, perceived fairness may be less strongly associated with outcome because arguably they have less emotional investment in any one child than do the child's parents. Of course, depending on the circumstances, a particular case may involve extra costs to a district, or it may set a precedent that would require different administrative or instructional arrangements for a large number of other children. Even then, however, it seems reasonable to assume that outcome is less likely to affect directly and personally the school's representative to the hearing in the way it must affect parents.

The present research was designed to discover how parents and school officials evaluate the subjective fainress of special education due process hearings. In particular, we wanted to know if participants believed they were accorded the procedures mandated under P.L. 94-142, and if they believed their hearings were "fair" in that they had been allowed to participate fully and had been informed of all reasons for the decisions. Further, we wanted to find out if they believed the outcomes of the hearings they went through were "accurate" reflections of the quality of the evidence presented at the hearings. Most important, we wanted to find out if each set of parties believed they had been treated fairly in an overall sense and were satisfied with the decisions of the hearing officers. Finally, we sought to discover if parents' perceptions varied as a function of their SES and if the perceptions of both parties varied as a function of having won or lost the case.



Parents and school officials who participated in open, special education due process hearing in Pennsylvania between 1980 and 1984 were the subjects of this study. A total of 282 hearings were held during that period, of which 66 (23.4%) were open to the public. This percentage is in marked contrast to earlier Pennsylvania hearings when the proportion of open-to-closed hearings was almost reversed (Kuriloff, Kirp & Buss, 1979). Parents and school officials we interviewed agreed that many of the earlier hearings wer ebrought by activist parents and advocates who kept them open both as a strategy for bringing public pressure to bear on districts and as a means of community education. They doubted whether the choice reflects major differences between the two groups of hearings. Indeed, Kuriloff et al. (1979) found no statistically significant differnces in parent and school behavior or hearing-officer decisions in open versus closed hearings held during the first 4 years of hearings in Pennsylvania. Still, prudence suggests caution in generalizing present results beyond participants in open hearings.

During the fall of 1984, we traced the participants in the 66 open hearings. We obtained responses from 30 pairs of parents and school officials who had participated in hearings together. We obtained additional responses from 7 parents and 13 officials whose adversaries had moved and could not be located. We tested for statistically significant differences between results for the true pairs and the nonpaired respondents. Finding none, we included all respondents in the final analyses. Thus, the total sample included parents and school officials who had participated in 50 hearings (76% of all open hearings during the time period we examined and 18% of all hearings).

Parents represented all five of Hollingshead's (1971) social classes, but the sample was skewed toward the high end of the scale, including 2 lower, 5 lower middle, 12 middle, 9 upper middle, and 9 upper class families.

School officials represented 34 of the Commonwealth's 501 districts. Fourteen, or 28% of the cases, were from Philadelphia. This corresponds roughly to the percentage of cases (30%) the city, by far the state's largest, tends to produce each year. Two cases each were from Pittsburgh and Erie, the Commonwealth's 2nd and 3rd largest districts. Two others were from Bristol, the 14th largest. The other 30 cases came from districts scattered throughout the state. Districts were quite representative in their diversity. In size, they ranged from tiny Tri Valley with a population of 6,879, to Philadelphia with a population of 1,688.210. Median family income ranged from a low of $13,167 in Tussey Mountain to a high of $34,923 in Lower Moreland. The proportion of families below the poverty level ranged from a low .15% in Mt. Lebanon to a high of 16.5% in Philadelphia, while the proportion of minority children of school age ranged from .1% in Tri Valley to 39.7% in Philadelphia. Education varied similarly. Forty-nine percent of State College's adults were college graduates, while only 5.1% of Tussey Mountain's adults had college degrees. Because of the inclusion of Philadelphia, Pittsburgh, and Erie, the percentage of families below the poverty level (12% vs. 7.7%) and minorities (26% vs. 9.6%) were higher than those found in the state generally; and the percentage of college graduates (8% vs. 13.5%) was lower. These differences correspond to the fact that larger, urban districts also account for a disproportionate number of due process cases.

Finally, this is a study of people who were involved in hearings over a 4-year period. For those whose hearings were in 1984, only several months had elapsed before they were interviewed; for thsoe whose hearings were in 1980, several years had gone by. Thus, as in all retrospective studies, this study is subject to the limitations imposed by distortions of human memory, as well as the genuine changes that people's views undergo as circumstances change.


Transcript Data Form. To collect data relating to the nature of the hearing, we used an instrument based on one developed by the Project on Student Classification and the Law (Kuriloff, 1985; Kuriloff et al., 1979). Participants were asked the date of the hearing and the decision, the name of the school district, characteristics of the child (age, sex, previous special education experience, and current placement), and whether legal or other representation was used by the parents and the school district. The instrument also contains a 5-point Likert-like scale measuring the hearing outcome. A hearing officer's decision is rated from complete loss for parent to complete win for parent using criteria developed by Kuriloff et al. (1979). The scale has been shown to be highly reliable and easy to use (Budoff & Orenstein, 1982; Kuriloff, 1985; Kuriloff et al. 1979).

Parent Interview Questionnaire (PIQ). This instrument was designed to measure participants' perceptions of the fairness of the major procedural elements of the hearings. It is divided into seven short sections containing 23 questions. The first 5 questions ask parents to use a 7-point Likert scale to rate the fairness of prehearing and hearing procedures; the fairness of the hearing itself; the accuracy of the hearing officer's decision, as well as their overall satisfaction with the hearing and its outcome; and their evaluation of the results of the entire process for their child. For example, parents were asked to what degree the school made all evidence available to them, to what degree they felt they had the opportunity to present their side of the story, to what degree they believed they had received all their legal rights, and to what degree they felt the hearing had been fair. The sixth section asked parents to rate how much of what they sought they had actually gotten out of the hearing and how they felt about it now. The final section contained the questions of the Hollingshead Four Factor Index of Social Status (1971).

School Official Interview Questionnaire (SOIQ). This instrument, like the PIQ, was designed to measure participants' perceptions of the fairness of the hearings. It is divided into five short sections containing a total of nine questions. Officials were asked to use a 7-point Likert scale to rate their perceptions of the fairness of the hearing procedures and outcome, their judgment of the accuracy of the decision, their satisfaction with the hearing and its outcome, and their assessment of how much of what they had wanted they had gotten. Questions paralleled those of the PIQ. Both the PIQ and the SOIQ were pretested on a separate group of hearing participants.

The Hollingshead Four Factor Index of Social Status (1971). This is a widely used measure of SES. It contains nine questions concerning respondents' educational level and occupation and results in classifications of lower, lower middle, middle, upper middle and upper class. For convenience, the scale was included as part of the PIQ.


The transcripts of all open hearings held between 1980 and 1984 were evaluated using the Transcript Data Form to determine the outcome of hearing-officer decision according to criteria established by Kuriloff et al. (1979). Parents and school officials were then interviewed over the telephone and asked to reply to the questionaires, using a standard approach described by Dillman (1978).

Data Analysis

Because we were dealing with phone interviews, we could ask only a few key questions. This posed problems, given our intention to analyze responses to individual items, especially as the ability of respondents to discriminate reliably among items on a 7-point scale proved questionable. To correct for this problem, we reduced the scales from questionnaire variables to a single, trichotomy where a variable's original most favorable two anchors ("All," "Almost All," "Highest Degree") were construed as Possitive perceptions, lowest two anchors ("None," "Almost None") as Negative, and medial three anchors ("Half," "Some," "Moderate Degree") as Neutral. This permitted comparable analyses of data across variables and more parsimonious presentation and interpretation of results.

The scales presented another analytic problem. They are theoretically and probably mathematically highly correlated. We therefore needed a strategy to preclude the likelihood of Type I errros--that some relationships that appeared significant were, in fact, artifacts of the intercorrelations of scales. In addition, inspection of the distributions for parents and school officials revealed abnormal distributions skewed in opposite directions, as well as unequal cell sizes. This demanded a nonparametric test. In comparing the disparate perceptions of parents and school officials, we therefore chose as our statistic the test of the standard error of proportional differences (Ferguson & Takane, 1988) and controlled the compounding of spurious error using the Bonferroni method (Miller, 1966). Finally, to assess the degree to which participants' perceptions of fairness and satisfaction were related to their experience of winning or losing, we correlated their ratings with outcome, again controlling fro simultaneous statistical tests, using the Bonferroni method.


Parental Perceptions of Prehearing


Timely notice and prior access to the evidence have long been considered essential to a fair hearing (Friendly, 1975). Within the context of special education, parents must know of their right to a hearing and have time to prepare their case. But they also must be aware of the content of their children's school records and must understand what they mean. The great majority of parents (33 out of 37, or 89%) believed they had received timely notice in advance of the due process hearing. However, perceptions were rather mixed on whether other prehearing activities were conducted appropriately. Only 24% of the parents reported that all or nearly all pertinent school records had been made avaiable, and another 24% reported that no or nearly no such records had been forthcoming. More disturbing was a claim by over half of the parents (51%) that schools provided no or almost no explanations of the meaning of whatever records were provided. The picture does nto grow brighter when we turn from prehearing perceptions to parent and school views of the hearings themselves.

Participants' Perceptions of the

Fairness of Hearings

Table 1 presents and contrasts parent and school perceptions of elements key to procedural fairness. It shows large and statistically significant differences between the parties' perceptions of the degree to which they were accorded their legal rights. Whereas over 95% of the school officials had positive perceptions, believing they had received all or most of their rights, only 51% of the parents agreed. Furthermore, no school officials felt negative about the rights accorded them; but 24% of the parents had negative feelings. The differences in positive views were large and statistically significant.

There were equally large, significant differences between both parents and school officials' positive and negative perceptions about the overall fairness of their hearings. Eighty-eight percent of the officials, but only 41% of the parent believed the hearings were completely or almost completely fair. Indeed, a larger number of parents (35%) had very negative views, perceiving the hearings as substantially unfair.

Interestingly, parents and school officials did not attribute the unfairness to the inadequacy of hearing officer explanations. Indeed, they agreed substantially about the degree to which hearing officers explained the bases for their actions. Eighty-one percent of the school officials and 60% of the parents were very positive, claiming that the hearing officer's explanations were clear most or all of the time. But this relative agreement did not extend to their perceptions of accuracy--the extent to which hearing-officer decisions were based on the evidence presented at the hearing.

Table 1 shows that 805 of the respondents from schools, but only 36% of the parents, believed the decisions were fully or substantially accurate. Conversely, only 10% of the school officials but 45% of the parents believed the decisions were substantially inaccurate. Both sets of differences are large and highly significant. In about the same proportions, and aboout at the same level of significance, both sets of parties were inversely satisfied with the decisions they received. Seventy-two percent of the school officials, but only 33% of the parents, were positive about the outcome of the hearings; conversely, 12% of the school officials and 58% of the parents were negative.

Not surprisingly, the overall satisfaction of the parties with the hearings was similar to their ratings of the accuracy and fairness of the decisions. Seventy percent of the school officials, but only 35% of the parents, felt positive about the experience. Only 9% of the school officials were negative, in contrast to a majority of the parents (54%) who expressed no or almost no satisfaction.

Finally, we asked both set of parties to rate their current feelings about the entire experience of participating in a hearing. Once again, the same differences appear. Parents were predominantly negative (67%), whereas school officials were almost evenly split between feeling positive (48%) and negative (33%). While these differences are large and statistically significant, they indicate a substantial lack of satisfaction on the part of a majority of both sets of parties.

The Relationship Between Perceived

Fairness and Winning

After comparing parent and school-official perceptions of fairness and satisfaction, we wanted to know if their retrospective assessments were associated with getting the outcome they desired. Table 2 shows that on seven of nine parental measures they were strongly related. (We were able to include in the correlational data a measure of the parties retrospective judgment concerning whether they had achieved their goals through the hearing. Because this measure had been scaled on a 5-point scale, instead of a 7-point scale, it could not be included in prior analyses.) Though school officials' percetions were less strongly correlated, they were still significantly related on three of nine measures.

On all but two measures, parents who got more of what they wanted in the decision perceived hearings to be fairer and more satisfactory than did parents who got less of what they wanted. Only parents' perceptions of the degree to which they were accorded their legal rights and their current judgment of the hearing experience were unrelated to outcome. For schools, all but one of the relationships were less strong than for parents, and six did not reach significance. School officials' assessments of being afforded their legal rights and an opportunity to participate in the hearing, as well as their judgments regarding the fairness of the hearing officer and their current feelings about the experience, were unrelated to the outcome of the decision. But, on the major questions concerning their views of the accuracy of the hearing officer's decision, their satisfaction with the decision, and their satisfaction with the entire hearing process, the more they won, the more they perceived the hearings as fair and the more satisfactory they rated them; and the less they won, the less they perceived the hearings as fair and the more dissatisfied they were.

Socioeconomic Status, Perceived Fairness,

and Outcome

Finally, to check the hypothesis that parent perceptions of fairness varied as a function of their family SES as well as a function of their "winning," product-moment correlations were calculated between the Hollingshead Index and each questionnaire variable. Even without controls for simultaneous statistical tests, no correlation achieved statistical significance. Neither did SES correlate with outcome.


When justice is defined as the existence of a strong, reliable, predictive relationship between effectively using the elements of due process and gaining a favorable outcome, due process hearings appear to be achieving one goal Congress intended when it mandated them in special education disputes (Kuriloff, 1985). But this kind of objective fairness is not all Congress had in mind. It also wanted to ensure that parents could participate in crucial educational decisions about their children, and to come away feeling they had been fairly treated (Friendly, 1975; Neal & Kirp, 1985). The findings of this study add support to earlier, largely anecdotal evidence (Kirp & Jensen, 1983) that special education hearings do not achieve this more subjective form of fairness.

At the prehearing level, most parents believed they had been notified in a timely fashion but not that schools had explained their children's records adequately. Reflecting on their experience in the hearings, a majority of the parents believed that hearing officers explained their actions fully. A majority also thought they had the opportunity to adequately explain their position and that they had been accorded their rights. But only a minority of parents thought that the hearings were fair or the results accurate. It is not surprising, then, that a large majority of the parents reported being unsatisfied with the overall experience. On every measure, school officials perceived hearings as fairer and more satisfactory than parents. Of course, they tended to win more often than parents did.

Parents' views were unrelated to their SES, but were associated with the outcome of the hearing. Regardless of their SES, parents who won something tended to view all aspects of the hearings, except hearing officers' explanations, as more fair than those who did not. To a lesser degree, school officials' perceptions of fairness were shaped similarly by how successfully they achieved their objectives. Because parents are likely to have a greater emotional investment in the outcome than are school officials, this finding supports an emerging hypothesis in the literature that, in matters of major importance to them, people judge fairness by outcome more than by the procedural safeguards accorded them (Lind & Tyler, 1988; Tyler, 1984). Put differently, procedures may be viewed as a necessary but not sufficient condition for fairness when the stakes are high and the validty of any given outcome is ambiguous.

These findings have two important implications for research and practice. First, experimental studies of procedural justice that do not take peoples' "stakes" into account may draw false conclusions about the relationship between procedures as inputs and perceived fairness as the outcome of a legal system. Second, a strong effort should be made to explore supplementary forms of dispute resolution to see if they are capable of producing fairer, more satisfactory solutions than formal due process hearings. Kirp et al. (1975) have discussed several of the most promising models. In particular, studies should focus on negotiation and mediation. Since these models are designed to achieve satisfaction by achieving a mutually satisfactory agreement, not necessarily the one that most accurately conforms to the facts, they should foster perceptions of subjective fairness; and the issue of objective fairness no longer would be in question.

Given the strong, contrasting perceptions of parents and school officials, it is striking that the majority of both sets of parties felt either neutral or negative about the entire experience. Separate from any justice they may produce, hearings seem to have large personal and transactional costs. Many parents and school officials believed the hearings were emotionally traumatic. One parent who not only won, but also believed she had been accorded the appropriate procedures, bitterly complain of the system:

It's a waste of money. It shouldn't have to go so far. It was a personal thing. They didnt's think I'd do it. It cost me grief and aggravation. It cost them money which they could have used to educate.

For another parent, the process "was a traumatic experience. We suffered emotionally and financially." To a third, the hearing was "long and involved, very grueling, emotional, expensive, and very stressful." A school official, who also gave the highest favorable ratings for all aspects of the system, agreed that the experience was not worthwhile, saying:

My views have changed as a result of going through the hearing. The law isn't bringing about what it's supposed to. It's too costly. It's misleading parents. I have very negative views of the law.

Parents and school officials believed adversary hearings created unnecessary antagonisms between them. According to one special educator: "I disagree with the system. Parents think we're the adversaries. Regulations are slanted to parents. We're professionals. We do our job and don't receive help." Another school official related how, in his hearing, "the parents had no case and, in general, off-the-wall people use the hearings to harass the school district." Indeed, many school representatives believed the hearings were forums used by special interest groups to achieve their political ends. One administrator reported: "This was a test case by the Association for Retarded Citizens. We have had amicable settlements working with parents before. The parents had agreed to the proposal before ARC got involved."

Parents felt equally strongly that the hearings were often simply an arena for conflict. One, who believed hers had been very fair, said: "It's like a war. You're the enemy. It's like walking into a combat zone. The due process system doesn't do anything. The professionals come at you." Another said:

Things could have been resolved beforehand. They wanted to show me they couldn't be challenged. I have a funny feeling there's going to be another fight. I'm tired of fighting. They take you to the end to put the pressure on. You're not even a person. I don't know if I'd go through it again. It changes your whole life.

Yet for a few parents, hearings were a positive and liberating experience. They were able to take control of the process and use it to influence their children's educational program. For example, a parent who won her case saw the experience as one that freed her of dependency:

I'd do it again in a minute. It was my son's entire life at stake. It totally changed my entire life. It was the most difficult thing I've ever done. We fought for two years. It cost us over a thousand dollars in legal fees, travel, experts. They put us through all that crap unnecessarily. You can fight city hall. I can do anything important.

This mother's experience expresses the highest hopes one could have for mandating due process hearings as a method of special education decision making. But the overwhelming amount of data from this study, as well as that collected by others in a more anecdotal fashion (Kirp & Jensen, 1983), suggests such an experience is all too rare. Certainly the major belief expressed to us by parents and special educators was that the legal model is ill suited to resolving educational disputes. Yet not one parent or administrator was willing to claim that he or she did not have at least a "bottom line" right to request a hearing if alternative methods failed to resolve a disagreement.


It is this ultimate belief of parents and school officials in the need for due process that could easily lead us to the conclusion that hearings are necessary in cases where irreconcilable conflict exists. Despite many perceptions that the system was inaccurate and unfair, despite many feelings that the entire experience was negative, every parent and school official interviewed agreed that the opportunity for due process should be kept in place. Perhaps such views express Americans' profound historical faith in procedural safeguards. Perhaps too, it is this irreducible belief that makes the availability of due process a necessary condition for people's sense of subjective fairness. Yet, in their own words, parents and school officials eloquently stated why it is not sufficient. In expressing the pain they experienced during the process, they mirrored the reservations of Judge Learned Hand when he noted that "as a litigant, I should dread a law suit beyond almost anything else short of sickness and of death" (Roth, p. 91).

The question then, is really not of doing away with due process (Goldberg & Kuriloff, 1987), but of finding ways to prevent disputes between parents and schools from landing in court. If schools can come to appreciate the profound feelings of protectiveness and identification evoked in parents whenever questions are raised about a child's development, they may begin to find new ways of collaborating with them from the very beginning (Handler, 1986). Only sensitive, early interventions, that involve professionals and parents working together, are likely to avoid the costly, emotionally draining battles that erupt once they come to disagree on what constitutes an appropriate education for the child.


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STEVEN S. GOLDBERG is an Associate Professor at Beaver College, Glenside, Pennsylvania. PETER J. KURILOFF is a Professor in the Graduate School of Education at the University of Pennsylvania, Philadelphia.
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Author:Goldberg, Steven S.; Kuriloff, Peter J.
Publication:Exceptional Children
Date:May 1, 1991
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