SCHOOL CONFLICT RESOLUTION
In the area of education, success usually happens because parents and school districts have become partners in providing an education for the child. As you know, almost everything that happens in education (evaluations, IEPs, and other things) occurs because the parents and the school districts agree to them and work together as partners to make them happen. Still, even the best of partners can have disagreements about things.
When a Disagreement Occurs: First Steps
If you believe that there is an actual or potential dispute occurring between the parent and the school district, there are several things can be done (in most cases) before a due process hearing or state complaint has to occur. Before deciding that a dispute requires the assistance of an outside party, it’s important to ask yourself a few questions: Do the parties understand what each one is trying to do? If the parent doesn’t completely understand what the district is providing to the child, it’s very important that the parent ask questions. Asking questions will not only help to define the problem, it may also assist the district in understanding why the parent may not agree with what the district is doing. Let’s say, for example, that you are a parent and you believe your child requires more services than the district has offered. Does the district know why you believe more services are necessary? Being able to understand your position is, very often, the key to resolving a problem before it turns into a big dispute. If you are a parent, be prepared to explain why you believe your child needs something different than what the district has offered. It’s usually difficult for the district to see your side of the story if you can’t provide an explanation for your point of view. On the flip side of the coin, if you work for the district, does the parent understand fully why the IEP team is recommending the placement? As a district member of the IEP team, it’s equally important to ask questions of the parent if you sense that the parent may not understand the reasons for your recommendations.
Are there other acceptable options?
Is there any chance of “meeting half-way”? Sometimes the key to resolving a disagreement is finding a so-called “third option” that both sides would find acceptable. Again imagining the viewpoint of a parent, let’s say the district has offered your child 30 minutes per week of speech services but you would prefer 60 minutes of speech. Would 45 minutes a week be a possible option that is acceptable to both you and the district? Is 45 minutes an appropriate amount to provide to your child? If 45 minutes is both appropriate for your child and acceptable to you and the district, why not “meet half-way” and use this option instead of going to hearing? It’s going to be very important to decide whether there might be other acceptable options in order to know how to handle a disagreement if it happens.
Mediation can take place whether or not you have a pending complaint or hearing request. Mediation is a voluntary process designed to help parties reach agreements to resolve potential disputes. As a voluntary process, both the parent and the district have to agree to engage in mediation. Once mediation has been arranged, ISBE will appoint a mediator, who will then arrange the time and place for the mediation meeting. The mediator is a person specially training to understand special education matters, but who is not an employee (or has an interest in) working for either side. The mediator’s only focus will be to find a way to work out an agreement with the parties that will work to the benefit of the child.
Prior to the mediation, the parties cannot discuss their points of view or issues with the mediator. Once the meeting begins, the mediator will generally ask each side to discuss the issues and what their opinions are about how the issues should be resolved. The mediator will then work with the parties to identify where the parties have areas of agreement and whether each party can find agreeable options to resolve the dispute. The mediator may ask to speak with you individually (in a private place without the presence of the other party) so that you can feel free to discuss your options with the mediator. At other times, the mediator will want to discuss matters with both parties present. In general, the mediation meeting will take 2 to 3 hours, but may take more time depending on the number of issues that need to be discussed.
If an agreement can be reached between the parties on all (or even some) of the issues, the mediator will then help the parties to write up a mediation agreement (see page 87). The mediation agreement will outline exactly what each party must do and (if necessary) set specific timelines for the completion of the things in the agreement. Once the language of the agreement has been set down in writing, you and a representative of the district will be expected to sign the agreement. If either side refuses to sign the agreement, the agreement will have no legal effect. As we described above, once a mediation agreement is signed, you will have a legally binding document that can (if needed) be enforced in a court of law if the agreement is not put into effect. Here are several important points to remember about mediation:
1) Mediation is a completely voluntary process. So mediation will only happen if both you and your school district agree to participate. But more importantly, any agreement you reach is also voluntary. Even if the mediation meeting happens, you do not have to sign the final agreement if it’s not something to which you agree.
2) One of the most important ground rules in mediation is the requirement that everything said in the mediation is confidential. In other words, you should feel free to say anything that will assist in reaching an agreement because what you say cannot be used in another context. This is very important if you’re also facing a due process hearing because it means that anything you say at mediation cannot be used as evidence against you at hearing. But confidentiality is a two-way street. You will not be able to use statements by the other party in the hearing either.
3) The agreement is a binding document.
A mediation agreement is legally-binding similar to a contract. Because it’s legally-binding, this means that you would have the ability to go a court of law to enforce the terms of the agreement if something is not being done, or not being done correctly.
Formal Dispute Resolution
You have a major disagreement about a child’s educational program. You’ve tried to work out your differences through conversations and informal negotiation. You’ve even tried to work out an agreement with the help of a mediator. At the end of it all, your major disagreement is still there. What do you do? In most cases, once you have exhausted all the things described above, it is generally time to consider using a formal process for having your dispute resolved. There are two formal processes currently available in Illinois: state complaints and due process hearings.
The biggest difference between the things described in the earlier sections and the things we’re about to describe is this: a person other than the parent and the district will now decide how to resolve the issue. In informal procedures, the parent and the district are trying to work out the matter. But in formal dispute resolutions, you are giving over your dispute to another person to decide it for you. In the case of state complaints, it is a complaint investigator who works for ISBE. In the case of due process hearings, it is an independent person known as an “impartial hearing officer.”
The state complaint process is a procedure that is established under both the Federal and State special education laws and rules. In a state complaint, a person who has knowledge of the educational issues concerning the child may file a written complaint with the ISBE. The complaint sets out who the child is (or in some cases children are), the facts that have led to the dispute and the suggestions for how the situation needs to be fixed. A sample complaint letter is provided in Appendix A to give you an idea of what a state complaint letter might look like.
Once ISBE receives the complaint, the complaint will be assigned to an investigator. The investigator is an employee of ISBE with expertise in special education issues. The investigator may do some or all of the following things in reaching a final determination:
1. Contact the person or organization to clarify the issues described in the complaint;
2. Request documentation from you to support your claims;
3. Contact the district to find out the district’s position concerning the claims;
4. Request documentation from the district to support its position or positions;
5. Set up interviews with the complainant and others who have direct knowledge of the issues in the complaint; and
6. If necessary, perform an on-site investigation at the school.
Much of the investigation can be done by telephone and mail, although the investigator may visit the district and meet with the complainant in person in order to reach a thorough decision, if the investigator believes it’s necessary.
It’s important to note that although the complainant has a right to present the case to the investigator, there is not a right to question district personnel or to “argue” the case in front of the investigator. Unlike a due process hearing (described below), parties will not be allowed (or required) to participate in a formal hearing to present the case, supporting evidence or witnesses. All procedures in the complaint will be handled by the investigator alone.
In addition to these steps, the investigator may work with you and the district to find a mutually-acceptable agreement to resolve the issue or issues in the complaint. This process, called “early resolution”, is a voluntary process designed to help find an acceptable solution to the problem without requiring the formal issuance of a decision by ISBE. However, if the parties and the investigator cannot find an acceptable agreement to resolve the issue, the investigator will go forward with a full investigation and make a final decision in the case.
The investigator has 60 calendar days from the date ISBE receives the complaint to reach a conclusion. In rare circumstances, however, the investigation can be extended beyond 60 days by the investigator. The conclusion reached by the investigator is called a “letter of finding”. As the name suggests, the investigator will issue a decision in the form of a letter. This letter will outline the issues investigated, the facts found by the investigator, a determination of whether those facts comply with the law and regulations, and finally an order describing what the district needs to do in order to meet the requirements of the law and regulations. A copy of this letter will be issued to the complaining party and to the district.
One unique aspect about State Complaints is the fact that a person may not only file a complaint about a single child, but can also file a complaint claiming a systemic problem (in other words, that a district’s practices are not appropriate for a whole group of children). But there are also important differences between State Complaints and Due Process Hearings, which are another way to obtain a ruling over a special education dispute. And though Due Process Hearings will be discussed in more detail in the next section, it is useful to look at some of the differences and similarities between the two at this point.
If you file a complaint, you are permitted to include any issue that has arisen within one calendar year of the date you file your complaint. However, if you choose to file for a due process hearing, you are permitted to raise any issues that have occurred up to two calendar years prior to the filing of your due process request. This difference is set out in IDEA. This factor may also help you to decide whether a complaint or a due process hearing is the best route to take in resolving the issues with your district. With this information in mind, we need to turn to the procedures associated with due process hearings.
Formal Disputes: Due Process Hearings
Due Process Hearings are the most formal way to have a dispute between a parent and a school district decided. In general terms, due process hearings have a number of similar features to court proceedings. Just like a court of law, due process hearings can involve formal arguments (often made by lawyers), witness testimony and the use of documentary evidence to make the case for one side or the other. And, just like court, a decision maker (called an “Impartial Hearing Officer” in the case of due process hearings) renders a written decision that is legally binding both parties.
There are two types of due process hearings in Illinois: general and expedited hearings. The following information describes the procedures associated with general due process hearings. Expedited hearings, which focus on issues dealing with student misconduct and discipline, are discussed in the previous chapter dealing with student discipline.
In Illinois, about 90% of all due process cases are filed by parents. This is because parents have a much larger range of issues for which they can file a hearing request. Because of this fact, the following sections are mainly written from the parent’s perspective. But school districts can certainly gain important insights on due process by reviewing these sections as well.
Do I Need to Hire a Lawyer?
There is nothing that prevents a parent or school district from presenting his or her own case at a Due Process Hearing, but parties frequently choose to use an attorney to represent them in the hearing. There is a great deal of formality to a due process hearing, and in many ways, a due process hearing has a lot of the look and feel of a courtroom proceeding. For this reason, parties will often seek the expertise of someone with familiarity in special education law to represent them in this process.
If you’re a parent using an attorney, it’s important for you to keep in mind that your attorney’s fees can be recovered from the district if you prevail in the hearing (and the result isn’t appealed by the district to a court of law). However, the law has increasingly made it clear that “prevailing” means obtaining a favorable decision from the hearing officer on a major issue in the case. Without a favorable decision from a hearing officer, it is almost certain that the fees you pay to an attorney cannot be recovered from the district.
If you feel that you need a representative to help you with an appropriate school conflict resolution, please contact us for a Free School Conflict Resolution.