Stalled changes

Before a due process hearing goes before a judge, school systems and parents are supposed to work together to reach a resolution out of court. The majority of special education issues are settled that way, through mediation and other means, keeping the number of due process hearings low.

Lori Scott, chair of the Howard County Special Education Citizens Advisory Committee, says her organization counsels families on how to secure better services for their children while avoiding a due process hearing. Taking that step, she says, is a last resort no parent relishes — but one they will pursue if they feel it’s their child’s only chance.

Montgomery County’s Associate Superintendent of Special Education Kevin Lowndes said the district “bends over backwards” to resolve issues with parents before moving into due process.

“The cases that get to that level are ones we’ve done everything in our power to make a successful resolution,” he said, “but for whatever reason the parent wants something we feel we just can’t give them.”

Friedman says she spent four years in classrooms and conference rooms, trying to get the Montgomery County public school system to better educate her daughter. The girl, who Friedman requested not be named, has severe dyslexia. As she approached third grade, she couldn’t read well enough to order off an unfamiliar menu. At Dunkin’ Donuts, she would ask her mom for the white one with sprinkles, unable to decipher the treat’s proper name.

She continued to fall behind her peers. In third grade, she read at the level of a new first grader, documents show. She called herself dumb. She developed anxiety and deep shame about her inability to read.

Friedman pulled her daughter out of the Montgomery County elementary school and transferred her to a private school in Washington that specializes in teaching kids with learning differences. Her daughter began thriving, once getting into her mother’s car after school and announcing that she’d had the best day of her life: She read a chapter book for the first time. She told Friedman she never wanted to go back to her old school, which she dubbed “the death school.”

The family initiated a due process hearing to compel Montgomery County to pay the steep private school tuition, arguing that the girl’s public elementary school failed to meet her needs. While it’s rare, judges can — and have — required public systems to pay private school costs. Districts can also agree to pay for private schools without going to due process; Baltimore, for example, plans to set aside $28 million next year to pay tuition for students who can’t be served in public schools.

Friedman and her husband burned through their vacation and savings during the adversarial 10-day hearing. It left Friedman wishing the school system would fight as hard for dyslexic kids as it does against them.

Last month, the Friedmans got the news: They, like so many other parents in Maryland, had lost.

“You deplete all your resources to fight for your child’s education,” she said. “I knew the world was unjust, but I never knew it could be like this for a child.”

The judge who oversaw the hearing concluded that Montgomery County Public Schools was able to provide Friedman’s daughter a “free and appropriate education” and that she had in fact made academic progress in third grade. The school system, which declined to comment on an individual case, argued it provided necessary academic and emotional supports for the 9-year-old girl.

The judges who decide these cases can’t speak to their rulings, which are confidential, said John Leidig, deputy director of operations for the Office of Administrative Hearings. Each case is decided on its individual facts, and the office declined to comment on the trend of parents losing most of the time.

Administrative law judges are overseen by the state’s independent Office of Administrative Hearings. Each of the roughly 55 judges in the office worked as a lawyer before their appointment.

In testimony earlier this year in Annapolis, the chief administrative law judge assured lawmakers that every judge assigned to a due process hearing is “trained, competent, neutral and fair.”

‘David versus Goliath’

Some researchers believe districts prevail much more often because they have far greater legal and financial resources than a family does.

Another explanation special education experts offer is the districts will attempt to resolve cases that are less likely to be won and go to a hearing only if they are supremely confident in their chances. Others believe judges give deference to the judgment of district officials.

“It’s always been a David and Goliath issue,” said special education attorney Selene Almazan.

Project HEAL produced a report analyzing each of the 105 due process hearings from fiscal year 2014 to the second quarter of fiscal year 2019, most of which were initiated by the parents.

Judges sided with school districts in all but 14 cases. No parents won if they represented themselves.

Advocates caution that for every parent who makes it to a due process hearing, there are countless others without the resources to even consider taking on a fight they’re likely to lose.

Karen Kwasny is debating going to due process to fight for the right for her daughter, who has a variety of learning disabilities, to be properly educated in Carroll County Public Schools. But she’s torn.

“I’m afraid I’ll lose and the money wouldn’t be used for her education,” she said. “It’d be used to fight a system that doesn’t favor families.”

Perry Zirkel, a Lehigh University professor and recognized expert in special education law, warned against looking at the percentage of district or parent wins alone. Due process hearings, he says, are complex and nuanced.

“It all depends on the perspective,” he said.

The same people “looking at the same data, can have different perceptions about what is fair or who should prevail in these cases,” he said. “It’s not like science or mathematics.”

Due process complaints are filed against school districts across the state. The systems in Baltimore, Howard, Carroll, Anne Arundel and Harford counties and Baltimore City have litigated several dozen. Montgomery County fields the most. It’s the largest school district in the state, and among the wealthiest.

For low-income families, due process brings additional, potentially insurmountable, hurdles.

Project HEAL found an average due process hearing spans about four days — meaning a parent will likely have to take off work multiple days in a row. If they want a chance at winning, parents must bring in expert witnesses to testify on their behalf. These experts often come with a hefty price tag, as do lawyers.

The system’s “complex protocols and mandates disproportionately benefit wealthy, well-educated parents, who can deftly and aggressively navigate the due process system with the aid of private counsel and paid education experts,” according to an American Association of School Administrators report on national trends.

Meanwhile, the amount of money districts spend to fight parents in a due process hearing can sometimes exceed the cost of the service families are requesting.

That was the case for Sarah Davis, an Anne Arundel parent who asked the school system to pay for an independent evaluation to determine whether her daughter, then in eighth grade, is dyslexic.

The district spent more than $30,000 in its dispute with Davis, according to documents provided to The Baltimore Sun. The evaluation — for which her family eventually paid — would have cost the district one-tenth of that.

“Anne Arundel County Public Schools exhausts all resources as we attempt to provide appropriate accommodations and/ or services to all students with disabilities,” spokesman Bob Mosier said in a statement. “When there is disagreement about those accommodations or services, we attempt to reach resolution using collaborative means. There are times, however, when those avenues don’t result in an agreement. Our focus in all cases is meeting the needs of the student.”

School systems “shouldn’t be spending thousands of dollars to avoid paying for something that will cost a fraction of that,” said attorney Wayne Steedman, who represented Davis and other Maryland families in these cases.

A Baltimore City delegate introduced a bill in this year’s session that would have imposed new regulations on the judges who preside over special education cases.

There are dozens of these administrative law judges, yet due process hearings are relatively infrequent. That means, according to Project HEAL, a judge will on average go 25 months between rulings on special education cases. Administrative law judges oversee cases stemming from more than 30 state agencies.

Del. Stephanie Smith proposed mandating additional special education training for judges. The training would have discussed how to recognize and avoid implicit bias and understand the perspective of a parent whose child has a disability.

Chief administrative law judge Thomas Dewberry testified in opposition, saying it was unnecessary because judges already receive extensive training on special education, and the law would undermine the office’s independence.

Smith withdrew the legislation. She did not respond to requests for comment for this article.

That pattern has been repeated with due process-related bills.

Another bill introduced in the session would’ve enabled families to recoup expert and attorney fees. It received an unfavorable report in the Senate.

In Maryland, the party that files the due process complaint carries the responsibility of convincing a judge that the special education services that schools provide are inadequate — a standard stemming from a 2005 Supreme Court decision.

The General Assembly has many times in recent years considered shifting the burden of proof to the school system, as states such as New York and New Jersey have done. Legislation would have required school systems to defend the appropriateness of the learning plans they’d crafted for students, even if it was the parents who filed the complaint.

The Maryland Association of Boards of Education, which represents all 24 school systems, opposed the bill, saying it would increase the cost and duration of these disputes.

Supporters argued it would force districts to work more collaboratively with parents.

Legislation that would’ve put the burden of proof on school systems repeatedly failed.