Resolving Special Education Disputes in New Jersey
Every parent thinks of their child as being special and quite often moves the entire family to live in a school district that they feel will provide the best educational opportunity. It could be a district with a renowned sports program, acclaimed academics or a special education program that meets the specific needs of their child.
New Jersey schools have long been known for providing a quality education. In their 2017 analysis, Education Week magazine ranked NJ number 2, just behind Massachusetts in their Quality Counts study. (Quality Counts) This study looks at the steps states are taking to turn ESSA’s blueprint into a finished structure—and the challenges of doing it by the time the bell rings for the 2017-18 school year. But special education is… special.
New Jersey has, for over a century, been a leader in providing special education services to its children. In 1911, an act of the State’s legislature made New Jersey the first state in the nation to mandate special education classes for the deaf, blind and educationally delayed in all public schools. In the mid-1950’s, the state legislature extended the mandate to include “physically handicapped, mentally retarded students, emotionally and socially maladjusted children” and provided state aid for those services. (Bamford, 2015)
In 1966, the legislature clarified the responsibility of local districts and authorized tuition to private schools, expanded services to children in hospitals and residential programs, expanded the range of programs and services, broadened the responsibility of county child study teams and created a state special education advisory council. Then in 1982, a state law mandated special education for children with disabilities from birth to age five. (Bamford, 2015)
But there are 586 active school districts in this small state and each one handles special education slightly different. Some districts provide a full menu of services, while others have to coordinate and cooperate with neighboring districts to offer some key services. But each district is required to develop an Individual Education Plan for any student that meets special education criteria. The plan is developed by a multidisciplinary team after fully evaluating the child. Most, if not all districts include the parents or guardians in the process. Once a plan is developed, it is the district’s responsibility to implement it as written.
Not that New Jersey school districts always institute the IEP as written or that the child’s parents would like. Parents and district officials sometimes disagree on the services and/or placement that the child should receive. Some parents have concerns about the how the plan is being implemented. If informal discussions with the district are not effective, the parents then have the option of formally confronting the district and request that changes be made to the IEP.
For many parents, this is a daunting challenge – not unlike a double-sided sword. On one hand, they want the best possible educational outcome for their child but on the other hand, are they willing to dispute the district’s recommendations and risk potentially creating a confrontational relationship with the entity that they charged with educating their child?
Certainly, they can move into another district and hope the new one will be willing and able to provide the services the parents desire. This is radical and rarely practical. The parents also have the option of placing their child in a private school and paying tuition out of their pockets. Again, this is a radical move and likely unnecessary. These parents should know that there are a variety of government offices and programs that exist to help resolve disputes between special education parents and school districts, without requiring parents to move away, switch schools, or even risk alienating the district.
First, the New Jersey Department of Education has an Office of Special Education Programs whose purpose is to ensure “that students with disabilities receive appropriate [public] educational services to enable them to achieve the same goals established for all students – success in postsecondary education, employment, and life in the community.” (Special Education) This needs to be a primary resource for information regarding their specific needs and desires parents have for their child.
Second, the Federal Government, under the Individuals with Disabilities Education Act (IDEA) provides parents with two options with which to resolve their conflict with the school district. The first, and most commonly requested is the due process hearing. A due process hearing is an administrative hearing conducted by an administrative law judge. It is a trial where each side, generally represented by attorneys, presents their case to the judge who then renders a decision. Prior to the hearing, a resolution meeting may be held. During the 2014-15 school year, the New Jersey Department of Education received 1,211due process complaints. Out of the 1,211 due process complaints that were previously mentioned, only 13 such meetings were held, where 8 of the 13 ended up with a written settlement. Of the balance of due process complaints, only 52 were fully adjudicated. (IDEA Part B – Dispute Resolution School Year 2014-15)
Due process hearings are costly, time-consuming, and emotionally and are often physically draining to both parent and child. Like a trial, they require copies of all relevant document to be provided to both the school district and the administrative law judge. Preparation for the ‘big day’ means several lengthy meetings with one’s attorneys and lining up key ‘expert witnesses’ that will testify in your child’s behalf. To say the least, this is an expensive process with a high likelihood of damaging the important relationship between your child and the school that he or she is attending. Often the school board and several supervisory personnel sits in on the hearing making it an extremely stressful event.
The second means to resolving the conflict is through mediation. This process is far less stressful, less expensive and generally doesn’t shred the relationship between the school district and the student and parents.
Mediation is a voluntary, confidential and inexpensive means of alternative dispute resolution. Both the parents and the school board would have to agree to its use as an alternative to the resolution meeting. In many cases, mediation is effective enough where both sides can agree to a settlement thus eliminating the need for the due process hearing altogether.
Mediation requires openness and the desire of both parties to jointly come to an agreement as a third-party neutral – the mediator – helps them to express their positions and to understand those of the other side. This is one of the major benefits of mediation – the increased understanding of the global picture.
Many times in a due process hearing the attorneys for both sides may use legal-talk as they try to promote a winning strategy for their client in their attempt to persuade the trial judge to rule in their favor. In these cases, not only the parents but the school board and district officials are left to their own means in discerning the meaning of the discussion. On the other hand, a mediation hearing is geared to increase understanding for all, and having that understanding empower each side to move towards a compromise solution that they both agree is in the best interest of the child. The mediator does not take sides and does not recommend any solutions, although he or she might suggest different possibilities or approaches to reinvigorate the discussion and help bring the two sides closer together.
Mediation sessions are strictly confidential, leaving no paper trail. Anything said in these sessions cannot be used in a subsequent due process hearing should the mediation fail to bring resolution. Mediation should not be used as a tool to uncover information for later use.
If the mediation is successful and a solution is agreed upon, a written agreement is created and signed by both the parent and a district representative. This agreement is enforceable in court should either side breach the agreement.
Mediation should be the method of choice for resolving many types of disputes but can be especially beneficial in those involving special education disagreements. The primary benefit is control followed by the relationship management and then by time and treasure.
Control: By choosing a due process hearing rather than mediation, parents are leaving the final decision to a third party, the administrative law judge. Once the attorneys for both sides state their case, the judge will consider the facts presented along with special education law and render a judgment, generally within 45 days of the hearing. The judge’s decision becomes final, binding on both parties and must be implemented without delay unless an appeal is filed and the decision is stayed.
Mediation, on the other hand, provides a platform where the two sides work together in the best interest of the child. The parent can advocate for their positions, explain their concerns, discuss their fears and desires while at the same time gain an understanding of the positions, concerns and restraints of the school district. Through this mediated conversation trust can be built and, if both sides are willing to adjust their positions based upon the conversation, an amicable agreement can be reached, one that both sides can agree to sign off on. Having the ability to mold and control the eventual agreement is absent in the due process hearing.
Relationship: Litigation is adversarial by definition. It is the job of each side to demonstrate why their positions are the right ones and the other side’s will damage the child. Both the parents and school personnel are human and are not immune to the stinging and lasting effects of the criticism and negativity that can be unleashed in a very passionate dispute.
Mediation offers an environment for an honest discussion where each side can understand the positions of the other. Communication between the parents and school district can be reestablished and improved. Litigation is adversarial while mediation fosters cooperation. When the due process hearing ends, both sides wait to hear the judge’s decision. When a successful mediation ends, both sides can walk away with a feeling of success and completion.
Time and Money: Preparing for a due process hearing is preparing for a trail; meetings with one’s attorneys, copies of all medical and school records along with any and all correspondence between the parties, and choosing and preparing the expert witnesses needed to substantiate your requests. Each of these require a tangible commitment of both time and money. Should the judge rule against the parents, the decision can be appealed, adding both to both the time and cost of the process.
Preparing for mediation is also time consuming, but often far less expensive since attorney time can be eliminated or at least minimized. The parents should have a copy of all relevant medical and school records and should, in advance, provide the school district with a list of school personnel that they would like in attendance, such as specific teachers, aids, etc. who are familiar with the child.
The parent can choose to have someone there to support them – a friend, therapist, psychologist, or an educational consultant, or anyone else who may be familiar with the child and can be supportive to the parent. The parent might decide to have their attorney present if they so choose.
While mediation often results in an agreement, this is not always the case. Since it is a voluntary process, either side can pull out at any time and request that the dispute be settled in a due process hearing.
A successful mediation requires the commitment of both to work, in good faith, towards an agreement that both sides can live with rather than a win-lose, one-sided agreement. It requires an openness not found in litigation because the goal is not to win but rather to understand the ‘big picture’ and develop a compromise, fair to both sides, and most importantly, brings lasting educational benefits to the child.
Bamford, J. (2015). A Board Member’s Guide to the Basics of Special Education. Retrieved from New Jersey School Boards Association: https://www.njsba.org/news-publications/school-leader/januaryfebruary-2015-volume-45-4/a-board-members-guide-to-the-basics-of-special-education/
IDEA Part B – Dispute Resolution School Year 2014-15. (n.d.). Retrieved from New Jersey Department of Education: http://www.state.nj.gov/education/specialed/data/2015/Dispute%20Resolution.com
Quality Counts 2017: State Report Cards Map. (2017). Retrieved from Education Week: http://www.edweek.org/ew/qc/2017/2017-state-education-grades-map.html?intc=EW-QC17-LFTNAV
Special Education. (n.d.). Retrieved from New Jersey Department of Education: http://www.nj.gov/education/specialed/overview.shtml.
Mortenson, James R. (n.d.). Why Should We Mediate Special Education Disputes? Retrieved from http://www.ldonline.org/article/6302/
Preparing for special Education Mediation and Resolution Sessions: A Guide for Families and Advocates, (2009) Retrieved from The Advocacy Institute: https://www.advocacyinstitute.org/resources/Preparing.for.SpEd.Mediation.Resolution.Sessions.pdf
Alan Ehrlich is a mediator and facilitator and the founder of Mediate-NJ LLC. He was elected twice to the Bridgewater-Raritan Regional School Board and served two terms as its president. Mr. Ehrlich served as vice-president of the Somerset County School Boards Association for five years and taught (long-term substitute) for two years at the Somerset County Vocational and Technical High School.
For the past decade. Mr. Ehrlich has concentrated on the academic study of listening processes, the multiple cognitive processes involved with understanding spoken communication. He has spoken on listening and understanding at a variety of law schools, universities, and alternative dispute resolution organizations across the country. He is a contributing author (a chapter on Why Some People Can’t Listen) for the new textbook Listening Across Lives (Kendall Hunt, 2017). He is the founder of the Center for Listening Disorders Research, a past president of the International Listening Association and a current Director or the Global Listening Centre, and Chair of its Listening Disorders Section.
Mr. Ehrlich is a member of the New Jersey Association of Professional Mediators and the National Association for Community Mediation.
Alan R Ehrlich