Academic journal article
By Zirkel, Perry A.
Exceptional Children , Vol. 78, No. 3
Special education is the most legalized segment of schooling in the United States. The Individuals With Disabilities Education Act (IDEA, 2009) legislation and regulations, along with corollary state laws, amount to hundreds of pages. As comprehensively summarized in various sources (e.g., Yell, Katsiyannis, & Bradley, 2011), IDEA prescribes a formalized process for determining whether the child is eligible under the specified definition for disability, whether the eligible child's individualized education program (IEP) provides a free appropriate public education (FAPE) in the least restrictive environment (LRE), and a host of other statutory entitlements, including extended school year services and protections from disciplinary changes in placement. Finally, for this broad range of issues, IDEA provides more than one specialized avenue for resolving disputes between parents and school districts.
IDEA's primary avenue for dispute resolution--with the alternative being the state education agency's administrative complaint resolution process--is a multilevel adjudicative process that starts with an impartial hearing (Zirkel & McGuire, 2010). The due process hearing (34 C.ER. [section] 300.140) may be the only level of administrative adjudication, or it may represent the first of two tiers of such decision making prior to judicial review. IDEA provides states with the choice of a one- or two-tier system, the optional second tier being a review officer (IDEA, 2009, [section] 1415[g]) prior to appeal to a state or federal court (IDEA, 2009, [section] 1415[i]). The increasing majority of states, currently numbering 41, are one-tier states, and the predominant pattern consists of part-time hearing officers with legal backgrounds (Zirkel & Scala, 2010). Moreover, 10 states and the District of Columbia have accounted for more than 90% of the adjudicated hearings (Zirkel & Gischlar, 2008).
In its landmark decision of Board of Education v. Rowley (1982), the Supreme Court addressed the standard of judicial review under IDEA, concluding that courts must accord "due weight" to the decision of the hearing and/or review officer (p. 205). The Court also warned courts against "substituting their own notions of sound educational policy for those of the school authorities which they review" (p. 206). However, the Court did not specify the precise degree of judicial deference to be accorded to each of these administrative levels, with the impartial hearing officer being the linchpin in this process.
For the parents and the districts who are the parties to adjudicated due process hearings (i.e., those that end with a formal written decision rather than withdrawal or settlement), the degree of judicial deference is critical as to whether to proceed with an appeal to court, which is a costly and "ponderous" process under the IDEA (Burlington School Committee v. Massachusetts Department of Education, 1985, p. 370). In effect, the degree of deference is a major factor in determining the odds that the appeal will be successful. At the one extreme, no deference, which is associated with a de novo (i.e., all anew) standard of judicial review, means that the hearing officer's decision will lack any weight in the court's determination of the outcome of the case. At the other extreme, a highly deferential posture, such as where a court only overturns a lower decision when it is "clearly erroneous" or an "abuse of discretion," means high odds of an affirmance rather than a partial or complete reversal.
For deference beyond the linkage between an administrative adjudication and judicial review, appellate courts generally provide a high, undifferentiated degree of deference to the decisions of lower courts, and the judiciary is also traditionally deferential--under the doctrine of "academic abstention" (Dagley & Veir, 2002, p. 124)--to the educational decisions, such as grading and methodology, of school authorities (e. …