Due Process Hearings
Due Process Hearings and the Factors Which Affect Them
Lan T. Gomez and Jennifer Matorin
California State University, Northridge
Due Process Hearings 2
Due Process Hearings and the Factors Which Affect Them
Due to the passage of PL 94-142 in 1975, due process hearings have become an integral
component of special education legal procedures. According to the Education for All
Handicapped Children Act of 1975, states are required to provide due process hearings to parents
who oppose the eligibility, placement, or services determined for their child by the
Individualized Education Program (IEP) team. Although litigation involving the educational
system, in general, has declined, special education lawsuits have dramatically risen nationwide
with the passage of PL94-142 (Zirkel, 1997).
Currently, a limited body of literature exists which explores special education and due
process hearings. Of those studies found, a majority focused on the administrative hearing and
appeal process, parent’s rights, and outcomes of specific cases. However, relatively few
empirical studies have examined the possible variables which may attribute to the dramatic
increase in special education litigation. A computer search was performed utilizing the ERIC,
PsychLIT, and PsychInfo databases. Using the descriptors “special education” and
“litigation/due process hearings,” the search uncovered 38 citations. However, only 6 of the 38
studies addressed issues remotely related to factors contributing to due process hearings. For
example, Newcomer and Zirkel (1999) stated the most predominant issue in dispute was
placement in terms of parents seeking more restrictive settings. Accordingly, Havey (1999)
noted the most common issues on which school psychologists testified were appropriateness of
placement and assessment. However, neither study specifically sought out to examine the
possible reasons for the rise in special education lawsuits. Knowing the possible variables
contributing to the increased number of due process hearings would help practicing school
psychologists greatly. School psychologists would have a greater understanding of the possible
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contributing variables, which would, in turn, help psychologists take additional precautions to
minimize the number of due process hearings within their district. Furthermore, knowing which
variables affect the number of due process hearings will help psychologists decide which
prevention techniques to employ.
Newcomer and Zirkel (1999) examined a sample of published special education court
cases which were appealed to either a federal or state court under the Individuals with
Disabilities Education Act (IDEA). The primary purpose of the study was to determine if a
statistically significant relationship existed between the weight that a judge says is applicable to a
previous administrative decision and the frequency with which the court either supported,
modified, or overturned the earlier decision. Secondly, the study examined whether judicial
outcomes differed to a statistically significant extent for selected variables: student classification,
student gender, student placement, primary issue, time period, and court venue. It was found that
the degree of actual change was not significantly different for any of the selected variables. In
answer to the study’s primary purpose, courts rarely changed or overturned the results of earlier
administrative decisions. In addition, district wins exceeded parent wins in due process hearings
and appeals by 60%, although the margin narrowed to 49% district victories by the end of the
litigation process.
Havey (1999) explored the participation of school psychologists in due process hearings.
His study focused on the experiences and perceptions of the school psychologists involved. The
findings of his survey revealed that only a minority (38%) of school psychologists had actually
been called upon to testify at due process hearings. In addition, respondents indicated that they
agreed that their hearings had been conducted in a largely professional and fair manner.
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While the right to a due process hearing is fairly recent, there is not an abundant amount
of research in this area. However, less than 10 years after PL 94-142 was established,
Kammerlohr, Henderson, & Rock (1983) studied several cases in which parents opposed IEP
team decisions. They examined and described all due process hearings in Illinois during 1978,
1979, and the first three months of 1980 (Kammerlohr et al., 1983). A total of 314 hearings were
held and 95 of those decisions were appealed to the state level. In addition, they looked at the
number of hearings for each special education category. Kammerlohr, Henderson, & Rock
(1983) found that the greatest number of hearings were in the following categories: behavior
disorders (21.3%), learning disabled (13.7%), and deaf and multiply handicapped (10.5%).
Of the 95 hearings that were appealed at the state level, 74 of the cases were instigated by
parents. Similar to Newcomer’s and Zirkel’s findings (1999), three-fourths of all appeals
involved the issue of “objection to placement” (Kammerlohr et al., 1983). The hearing officer’s
decision was usually upheld in these cases, however, a third of these cases were reversed and the
schools had to develop an adequate IEP for the child. In addition, this study looked at the cost
and time allocated to a standard due process hearing. The actual costs involved with due process
hearings could not be determined as this was one of the first studies describing due process
hearings. However, the total number of hours per due process hearing was approximately 73
hours, which included the prevention phase, preparation phase, presentation phase, follow-up
phase, and miscellaneous calls and conferences. One problem that this study discovered was the
time lag between the date of the hearing and the date of the hearing officer’s decision. In
general, the average number of days was 10.5 between the hearing and the hearing officer’s
report, however, cases that were appealed involved significant delays, and had an average time
lag of 4 months. Therefore, the time lag for the appealed cases needs to be shortened to assure
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that these delays do not deprive children of an appropriate education for long periods of time
(Kammerlohr et al., 1983).
While the previous study examined general factors of the due process procedure, the
Goldberg & Kuriloff (1991) study looked at the fairness of special education hearings. The
study explored two kinds of justice, defined as objective and subjective fairness, and examined
parent and school officials’ subjective fairness of their hearings. Objective fairness may tell you
whether parents who call more witnesses, offer more exhibits, and present their cases more
effectively win their cases more often than parents who use the procedures less effectively do.
However, this objective fairness does not tell us anything about the experience of participants as
they go through the process. In addition, this study explored whether parents’ perceptions varied
as a function of their socioeconomic status (SES) and if the perceptions of parents and school
officials changed depending on if they won or lost the case.
Goldberg and Kuriloff (1991) found that parents rated the accuracy and fairness of the
decisions much lower than ratings from school officials. The same pattern was found for the
overall satisfaction of the parties with the hearings. Over half of the parents expressed very little
or no satisfaction with the hearings. In addition, when parents and school officials were asked to
rate their feelings about the entire experience of participating in a hearing, parents rated it as
mainly negative, while school officials were split between feeling positive and negative.
Although parents demonstrated less satisfaction with the entire process compared to school
officials, both parties indicate a “substantial lack of satisfaction” (p.552). Furthermore, they also
found that parents’ views were unrelated to their SES, but did correlate with the outcome of the
hearing. Regardless of their SES, parents who won tended to view most aspects of the hearings
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as more fair than those who did not. Overall, people tend to judge the fairness of the hearings
more by the outcome than by the procedural safeguards they are given.
Although the general procedures involved in due process hearings have been examined,
including the steps in due process, parent rights, and results from specific cases, little research
has looked at the contributing factors of due process hearings. Our research explores the
mitigating factors which may affect the dramatic increase in due process hearings. In a recent
Los Angeles Times article (Jan. 1999), it was stated a “higher percentage of students who got
special accommodations on the SAT because of a learning disability were male, white and
wealthy, compared with those who took the test the usual way.” Given the disproportionate
number of students from high socioeconomic backgrounds receiving special education
accommodations, we expect to find districts with higher SES levels to have a larger number of
due process hearings. In addition, a demographic analysis based on 200 randomly selected due
process cases which were appealed to either a federal or state court, found that students with
learning disabilities comprised the single largest disability category (Newcomer & Zirkel, 1999).
Another study found that cases involving children with autism were on the rise (Yell & Drasgow,
2000). Specifically, parents requested school districts to provide, fund, or reimburse them for the
Lovaas treatment program or a comparable program to address the needs of their child.
Accordingly, we expect cases involving learning disabilities and autism to be among the most
frequent special education categories significantly correlated with the increase in due process
hearings. Lastly, previous research found that appropriateness of placement was the most
frequent reason parents disagreed with IEP team decisions (Havey, 1999; Kammerlohr,
Henderson, & Rock, 1983). Consistent with these findings, it is believed that objection to
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placement will continue to be among the most common factor in parent opposition to IEP team
decisions.
Understanding which factors contribute to the rise in due process hearings would help
school psychologists take precautionary measures to minimize the number of due process cases.
For example, psychologists could establish discrete trial methods at their schools to meet the
increased demands of parents requesting the Lovaas treatment or a comparable program.
Method
Participants
A statewide survey was mailed to 120 randomly selected directors of special education
(See Appendix). The special education directors chosen for this study work in public school
districts within the state of California. Geographically, the surveys were sent as follows: 62%
from Los Angeles County; 23% from Orange County; 7% from Kern County; and 8% from
Alameda County.
Measure and Procedure
A cover letter and survey developed specifically for this study (see Appendix) were
mailed to participants. The first section of the questionnaire involved demographic variables:
district size, socioeconomic status, percentage of limited English proficient (LEP) students,
psychologist to student ratio, and relative experience of the school psychologists within the
district. The second part of the questionnaire looked at the participant’s involvement in the due
process procedure, number of fair hearings within the district, and special education categories
involved in due process hearings.
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Results
Based on our current study, a survey was sent to 115 directors of special education from
Northern, Southern, and Central California; 68 responded to the survey. Geographically, the
sample was as follows: 14% from Northern California; 13% from Central California; and 73%
from Southern California.
Our study found districts with higher SES levels to have a larger number of due process
hearings. Our results indicate objection to services is the most frequent reason parents oppose
IEP team decisions, with objection to placement as the second most frequent reason. Our
findings indicate a significant positive correlation exists between psychologist to student ratio
and number of fair hearings appealed within the past year (r = .333, p<.01) as well as within the
past three years (r = .293, p<.01). In addition, our study found a significant positive correlation
between experience of psychologist and number of fair hearings within the past year (r = .202,
p<.05). According to our study, a significant positive correlation exists between socioeconomic
status of district and number of fair hearings in past three years (r = .236, p<.05). Our results
found a significant negative correlation between percentage of LEP students in district and
number of fair hearings within the past three years (r = -.234, p<.05). However, our results
found a significant positive correlation between percentage of LEP students in district and
number of fair hearings appealed within the past year (r = .245, p<.05). There was no significant
relationship between size of district and number of fair hearings.
A Chi-Square was used for three separate analyses; 1) the most frequent reason parents
disagree with IEP team decisions; 2) the most frequent special education category involving fair
hearings within each district; and 3) the respondents’ opinions as to the most frequent special
education category involving fair hearings. A significant difference was found among the
Due Process Hearings 9
reasons parents disagree with IEP team decisions, such that services was found to be the most
frequent reason for parent opposition to IEP team decision.
In addition, a significant difference was found among the fourteen special education
categories. More specifically, autism was found to be the most frequent category involved in
due process hearings, while specific learning disability was found to be the second most frequent
category (n = 53; autism 50.9%; specific learning disability 22.6%). Lastly, a significant
difference was found among the respondents’ opinions as to the most frequent special education
category involving fair hearings. Autism was believed to be the most frequent category, while
emotional disturbance was believed to be the second most frequent category (n = 57; autism
78.9%; ED 12.3%).
Discussion
The findings of this survey revealed that the number of due process hearings were more
predominant in the special education categories regarding children with autism and learning
disabilities. Autism was found to be the most frequent category involved in due process
hearings, while specific learning disability was found to be the second most frequent category.
This is consistent with previous findings (LA Times, Jan 9, 2000; Yell & Drasgow, 2000; and
Newcomer & Zirkel, 2000). It is reasonable to assume that specific learning disability would be
among the most frequent category involving fair hearings given that the majority of students in
special education are identified as specific learning disabled. However, it is surprising that
autism is the most frequent category considering the low incidence of this disability.
Districts with higher SES levels were found to have a larger number of due process
hearings. This is commensurate with the disproportionate number of students from high
socioeconomic (SES) backgrounds receiving special education accommodations. Parents from
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high SES levels tend to be more educated and technologically savvy. For example, parents are
able to access the internet, which affords them the opportunity to communicate with other
parents of children with similar disabilities as their own. In addition, parents are able to research
information pertaining to their child’s particular disability, and gain knowledge of possible
techniques, strategies, and programs available to them.
Additionally, previous studies found objection to placement to be among the most
common factor leading to due process hearings (Newcomer & Zirkel, 1999; Kammerlohr et al.,
1983). However, our results indicate objection to services is the most frequent reason for parent
opposition to IEP team decisions. This may be related to our findings which found autism to be
the most frequent special education category involved in due process hearings. Parents of
children with autism are requesting services found outside those typically offered by the public
school system (i.e., behavior modification therapy using discrete trial method, auditory
integration training, music therapy, and private occupational therapy).
Our results found a significant negative correlation between percentage of LEP students
in district and number of fair hearings within the past three years (r = -.234, p<.05). However,
our results found a significant positive correlation between percentage of LEP students in district
and number of fair hearings appealed within the past year (r = .245, p<.05).
Finally, our results found that districts with higher LEP populations had significantly
lower numbers of fair hearings overall. This may be attributed to limited parent education and
low income--factors which are frequently associated with children identified as Limited English
Proficient. Parents with limited education and low income are often intimidated by the due
process procedures and may be unaware of their parent rights. However, our results also found
that districts with higher LEP populations had significantly higher numbers of fair hearings
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which went on to appeal. The reason for such findings is unclear; therefore, further research is
needed in this area.
Given the growing number of due process hearings and the limited body of research
which currently exists in this area, there is increasing need for further research in due process
hearings. Our study examined due process hearings and the factors which affect them within the
state of California. Future researchers may wish to gather data on due process hearings across
the nation.
Information regarding the factors which affect the number of due process hearings is
invaluable to the field of school psychology. School psychologists can utilize this information
to become more aware of typical factors leading to due process hearings (i.e., special education
categories most frequently involved in due process hearings, reason for parent opposition, and
district characteristics). With this awareness, school psychologists can have a better
understanding as to the possible reasons for parent opposition and apply additional caution
when working in schools.
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References
Dolan, M. (1999). Disabled Pupils Get Their Day in Court. Los Angeles Times, October
13, 1999. Home Edition, Part A.
Havey, J. M. (1999). School psychologists’ involvement in special education due process
hearings. Psychology in the Schools, 36, (2) 117-122.
Kammerlohr, B., Henderson, R. A., & Rock, S. (1983). Special education due process
hearings in Illinois. Exceptional Children, 49, (5) 417-422.
Goldberg, S. S., & Kuriloff, P. J. (1991). Evaluating the fairness of special education
hearings. Exceptional Children, 57, 546-555.
Newcomer, J. R. & Zirkel, P. A. (1999). An analysis of judicial outcomes of special
education cases. The Council for Exceptional Children, 65, (4) 469-480.
Weiss, K. R. (2000). New test-taking skill: Working the system. Los Angeles Times,
January 9, 2000. Valley Edition, Part A.
Yell, M. L. & Drasgow, E. (2000). Litigating a free appropriate public education: The
Lovaas hearings and cases. Journal of Special Education, 33, (4) 205-214.
Due Process Hearings 13
Appendix
Survey
School Hearings and Parent Appeals
All information disclosed will be held completely confidential. Survey results will not include specific
districts or schools; only group results will be stated.
Please read and complete each question. Circle your response on the scale provided. Please circle or
report one response only for each question.
1. District: ______________________________
2. What is the size of your district?
1
very small
2
3
moderate
4
5
very large
3. How many schools does your district serve? ________________________
4. How many school psychologists does your district employ? _____ Part-time _____ Full-time
5. What is the approximate school psychologist to student ratio in your district?
___ 1:500
___ 1:1000
___ 1:1500
___ 1:2000
___ 1:2500
___ 1:3000
___ 1:3500
___ 1:3500+
6. On a scale of 1 to 5, where 1 represents relatively new school psychologists and 5 represents very
experienced school psychologists, what would you rate the average experience of the school
psychologists in your district?
1
very new
(0-5 years)
2
3
moderate
(10-15 years)
4
5
very experienced
(20 or more years)
7. What is the socioeconomic status of your district based on average family income?
1
2
lower
($17,000 or lower)
3
middle
($40,000-$50,000)
4
5
upper
($100,00 or more)
8. Approximately what percentage of students in your district are LEP?
0-10%
11-20%
21-30%
31-40%
41-50%
61-70%
71-80%
81-90%
91-100%
51-60%
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9. To what degree do threats of litigation add to your daily stress?
1
not at all
2
3
moderately
4
5
very much
4
5
very much
10. How much involvement do you have in the hearing process?
1
not very much
2
3
moderate
11. In your best estimate, how often do parents in your district oppose IEP team decisions?
1
not at all
2
3
moderately
4
5
very much
12. In your opinion, what is the most frequent reason parents disagree with IEP team decisions?
___Eligibility
____________
___Placement
___Services
___Other (Please specify):
13. In your best estimate, how many fair hearings has your district been involved with during the past
year? _______________
14. In your best estimate, how many fair hearings has your district been involved with during the past 3
years? _______________
15. In your best estimate, what number of fair hearings in your district went on to appeal within the past
year? _______________
16. In your best estimate, what number of fair hearings in your district went on to appeal within the past 3
years? _______________
17. Rank order from 1 to 14 the frequency of fair hearings in your district which involve students from
the following special education categories (1=most frequent, 14=least frequent).
___ Autistic
___Deaf
___Deaf/Blind
___Emotionally Disturbed
___Established Medical
___ Hard of Hearing
___ Mentally Retarded
___Multihandicapped
___ Orthopedically Impaired
___ Other Health Impaired
___Specific Learning Disability
___Speech/Language
Impairment
___Traumatic Brain Injury
___Visually Impaired
18. In general, which one of the special education categories listed above do you feel would more likely
result in due process hearings? ______________________________________
Comments: