IEP Facilitation: A Promising Approach to Resolving Conflicts between Families and Schools
Mueller, Tracy G., Teaching Exceptional Children
The Individuals With Disabilities Education Act (IDEA) was created to ensure that students with disabilities receive a free and appropriate public education. One hallmark of IDEA is the promotion of collaboration between school districts and parents of children with disabilities. The letter and spirit of IDEA encourages a working relationship between the home and school that fosters an educational team with the goal of providing the child with appropriate services. IDEA provisions regarding parent involvement imply a picture of the family and school team working together amicably sharing visions and goals, and ultimately making decisions collectively. Unfortunately, this scenario is not always the outcome.
Current IDEA Resolution Procedures: A Means to No End
A major gap in special education conflict resolution procedures exists today (Feinberg, Beyer, & Moses, 2002). IDEA has attempted to protect the educational rights of children with disabilities by establishing three formal procedures for resolving disputes: due process hearings, formal complaints, and mediation. Each procedure has limitations because of its reactive nature. Research has shown that due process is expensive, adversarial, and leaves the resolution to an outsider (Lake & Billingsley, 2000). Due process hearings are actual court hearings where the district and the child's family participate in a legal procedure that is focused on the evalu- ation and resolution of the issue of dis- pute. A hearing officer is required to objectively listen to both sides of the issue and to make a decision following the letter of the law, acting like a judge. Due process hearings involve standard elements of civil dispute resolution including discovery, presentation of evidence, sworn testimony including that of expert witnesses, and crossexamination.
The number of due process hear- ings between parents of children with disabilities and school districts is grow- ing nationwide. This litigation costs bil- lions of dollars and destroys the rela- tionships between the home and school envisioned during the creation of IDEA. A recent analysis conducted by the Consortium for Appropriate Dispute Resolution (CADRE) showed that during the 2005 to 2006 academic year, 19,042 due process hearings were requested nationally with 5,385 actual- ly going to a fully adjudicated hearing (CADRE, 2008). The costs accrued per hearing can range between $50,000 to $100,000 (Congressional Record, 2002; Opunda, 1999). Based on the CADRE (2008) report, school districts across the United States potentially spend more than $90 million a year in con- flict resolution. Such data indicate that our school districts are in crisis with conflict and are currently resolving their disputes through extremely costly and adversarial measures. Simply put, too often districts and parents experience conflict that results in an extremely emotional and financially draining strategy for resolution.
Mediation is viewed as a potential alternative to due process procedures; however, there are limitations to mediation. First, because IDEA offers this strategy as a first step to due process hearing requests, it is possible that mediation may be offered too late to actually make a difference in the resolution of conflict. Requiring or threatening due process before utilizing mediation may worsen an already litigious dispute. Participants may view mediation as a procedural delay in obtaining a formal hearing (Feinberg et al., 2002). Further, lawyers are permitted to attend mediation, allowing the possibility for potential argumentative strategies.
In 2004, during the IDEA reauthorization, Congress added "resolution sessions" (IDEA 2004 34 C. F. R. § 300.510) requiring that the local education agency (LEA), parents, and all relevant school staff must meet, without the presence of attorney, before any due process hearing can take place. A resolution meeting must be held within 15 days of receiving notice of a parent's due process complaint and is intended for, "the parents of the child to discuss their due process complaint, so that the LEA has the opportunity to resolve the dispute that is the basis for the due process complaint" (IDEA 2004, 34 C. …