Brian Schaffer isn't a household name, but the special-needs student's story -- and his family's lawsuit involving the Montgomery County Public Schools -- should ring a bell with educators.
Schaffer's parents filed a complaint shortly after being told in 1997 that he needed a school that could better accommodate his needs, arguing that the school district did not provide the Schaffer with appropriate individualized instruction, as mandated by federal law; he had struggled academically since prekindergarten because of attention deficit disorder and speech-language impairment. The Schaffers sought money to pay for private school, which would accommodate his need for smaller class sizes and more intensive services.
The suit that eventually became Schaffer v. Weast went all the way to the U.S. Supreme Court, which in 2005 ruled for the district, saying that the "burden of persuasion" in special education due-process hearings falls on whoever files the complaint. The Schaffers had not convinced the courts that Brian's education was inappropriate. (Download a PDF of the opinion.)
Although very few cases go that far, the number of due-process requests regarding special education programs is growing. Nearly seven million children attend special ed classes at public schools, representing about 13 percent of overall enrollment. Some states are deluged with complaints; New York tops the charts (behind the District of Columbia) with about one for every 100 students. In some cases, the resolution of a single dispute can cost a district a small fortune, and attorney's and administrative fees dwarf the price of the services under dispute. "We had one case for which it was over $20,000 just for the stenographer," says Perry Zirkel, a leading scholar in special education law at Lehigh University and a former member of Pennsylvania's appeals panel for special education hearings.
Public school districts spent about $146 million during the 1999-2000 school year on due-process mediation and litigation involving special education students. Experts say the figure has risen steadily since then. Although states must comply with many general education and special education requirements, including providing procedural safeguards for dispute resolution isn't among them, with all that states have to do, "it ends up getting pushed down the priority list," says Philip Moses, associate director of a federally funded dispute-resolution center called CADRE (the Center for Appropriate Dispute Resolution in Special Education). "Ultimately, it takes some strong leadership at the state level or the district level," he notes.
Many states have begun throwing money at the problem, investing in mediation services designed to help parents and districts forge compromises. But a few local districts are going a step further, deploying alternate means of addressing existing and potential conflicts before they need formal mediation, and without drawing on a new revenue stream.
"Conflict is inevitable. That's life. It happens," said Tracy Gershwin Mueller, a researcher at the University of Northern Colorado. "I want districts and parents to know there are other things they can do before they go to litigation." Special education disputes can be expensive, but resolving conflicts doesn't have to be. Successful alternatives include empowering district-level special education coordinators, identifying program shortcomings, and opening new lines of parent-teacher communication.
What Worked in Alabama
Five years ago, when Congress reauthorized the Individuals with Disabilities Education Act (IDEA) -- which promises all children with disabilities a free and appropriate public education -- Alabama had one of the highest rates of special education complaints in the nation. The median for most states was about six complaints per 10,000 students that year; Alabama saw almost triple that amount. One of the districts struggling the most was the Madison County Schools, which had more than a dozen active complaints against it when Susan Currie arrived as director of special education services in 2004.
"I was working 18-20 hours a day just to try to stay ahead of it," Currie says. "I knew I couldn't keep up that pace -- it was killing me. I felt like I needed to move in with our school board attorney." When there was a bit of a lull, Currie took the complaint files home and spread them across her dining room floor. She discovered a common thread: Each case involved a student who had problems with social and emotional learning and included a request for out-of-district counseling.
Armed with this information, Currie asked the district superintendent to hire a mental-health counselor trained to work with children. "We had spent in excess of $300,000 in legal fees the first year that I came on board," she recalls telling her boss, who approved her request. "I could bring in a licensed counselor for significantly less." The new counselor quickly helped resolve two complaints that were close to requiring full due-process hearings (the special ed equivalent of a courtroom trial). One of the complaints was voluntarily withdrawn. "Knock on wood," Currie says, "but we have had only one full due-process hearing in five years now."
Currie also started to assess other areas in which the district's special ed program was vulnerable. During a workshop in Alabama presented by the University of South Florida, Currie recognized that her teachers needed more knowledge about autism-spectrum disorder, so she approached the workshop's presenters and partnered with the university to bring its cutting-edge research into Madison County classrooms. Currie has advice for other special ed directors: "Look for areas in which you're not doing particularly well, and then actively pursue ways to improve them." Her focus this year is on transitioning lower-functioning children out of the public school system once they turn 21 and no longer qualify for public education under IDEA.
The Madison County Schools isn't the only district to show improvement. A recent report from the Alabama Department of Education shows that the state received about half as many complaints last year as it did five years ago. The Baldwin County Public Schools contributed to the decrease, turning its program around by opening new lines of communication with parents.
In 2004, students' parents filed ten formal complaints against the district. Last year, there was only one. Roxanna Carpenter, the district's special education coordinator since 2002, credits a parent-liaison program: The district trains volunteers -- parents of special-needs children -- to serve as advocates for others who may be less knowledgeable about federal law or who feel intimidated when dealing directly with the district. The volunteers travel around the county to offer their peers one-on-one support, and they can attend meetings in which the parents and district officials develop a student's individualized education program (IEP).
"Sometimes we'll meet parents in an office at the district building. Sometimes we'll just talk on the phone. Sometimes we'll meet at a McDonald's or Subway to talk over things before a meeting," says Julie McKiven, a parent volunteer. "The role of the parent liaison is really to be the translator, to understand the parents' issues and then translate them into workable strategies that we can put into the IEP. The goal is to work it out at the district level. It's better to solve it as close to home as you can."
In addition, the Baldwin County school district hired and trained a group of resource consultants to serve as liaisons between teachers and district administrators, which has also helped, says Carpenter. So has building a better relationship with the local lawyer who used to file complaints against the district. When one of Carpenter's students got in trouble with the law, she called the lawyer, who agreed to take the case pro bono. "Since then, he has said to me many times, 'We're fighting the same fight.' And we are. My fight is for the children, and he knows that."
Matthew Hirsch is a legal writer based in San Francisco.