How implementing an Alternative Dispute Resolutions process in your School can save relationships, money and improve the education of special needs students

How implementing an Alternative Dispute Resolutions process in your School can save relationships, money and improve the education of special needs students

by: Darin Knicely

For too many school administrators, the Special Education program in their school, is a thorn that they just cannot seem to shake.  In my administrative roles, I have worked feverously to change the perception of professional's views on the ability of students with special needs to increase the opportunities available.  When I entered administration, I was naïve to the fact to which my impact as a special education leader was influenced by central office administrators, state policies, and our district's litigation stance. While I will not be able to capture the full spectrum of special education litigation issues, I will make the case that you need to have an Alternative Dispute Resolution (ADR) process at your school. Let me explain to you what I mean by ADR and why you should institute this practice in your school.

Alternative Dispute Resolutions (ADRs) are not unique to special education, but rarely used.  It is a process that various entities use to avoid hefty legal bills for issues that could be resolved without legal action. And don’t we all want that?  While I wish I could say that school law is for the lawyers, that just is not the case nor is it realistic.  As a teacher and administrator, I was consistently involved in due process complaints, settlement agreements, and legal proceedings.  This was partially because my career work focused on troubled schools which usually housed troubled special education departments with lack-luster processes and delivery.  The reality will be, as a leader, you will at some point be faced with legal action taken by a family who believes their student should be serviced differently.  On the simplest level, ADR is a policy that gives parents and advocates an avenue to bring concerns forward to be addressed at the school level, resulting in a more efficient and effective manner than the legal process.  Every parent that you can engage in the ADR process saves your organization money that can then continue to be allocated to student success.  And, in my experience, you will find that trust and relationships with your special needs parents will increase.

Getting back to money, would you be surprised to know that Federal funding for Special Education is an $11.5 billion investment? That is an increase from $7.5 billion in 2002. That increase and the funding allocation takes into account the several factors that create barriers in the education of students with disabilities. Every dollar that is appropriated from the Federal budget was designed to level the playing field for students with disabilities.  However, when the process of identifying and servicing goes awry it forces the special education instructional program to be placed at a financial and litigious disadvantage. For example, Minnesota's Department of Education reported that Special Education litigation tallied $466,532 in FY2014.  However, the report cited reflects only 19 of the 328 schools districts in Minnesota, raising further questions of the true cost of defending the special education process.  Taking into account the small sample size,  the dollar figure only calculates expenses for legal representation.  The settlement agreements that follow a litigation process listing compensatory services is not tracked because those expenses fall back into the overall special education budget.  The trouble with not tracking or accounting for compensatory services is that they are being pulled from the general special education budget. Most agreements asking for compensatory service usually seek restitution above what would be an expected cost to educate the student in question thus taxing a budget further than reasonably funded.  Now, let’s put this into terms that affects your building: 19 Minnesota school divisions spent the equivalent of 10 teacher salaries in defending a process that is well documented and should be outlaid with clear steps in procedure.  How can I make the assertion that those dollars wouldn't come out of federal special education funding? Because Federal Special Education dollars are earmarked for specific strategies that ensure the opportunity for education to students with disabilities, not the associated legal fees.  The most common account drawn  for litigation is the per pupil allocation school districts receive.  The expense to the general school budget places general education and at-risk students at a greater disadvantage due to inefficiencies in the special education process.

I hope at this point you have made the connection that each misstep made in the special education process costs you financially and costs your students opportunities. In my experience there are three typical trends found for litigating:

1) The school/district has not complied with IDEA in identification of a student with a disability and their level of need

2) The school and parent/guardian are in disagreement of what constitutes appropriate services or identification

3) The school failed to implement the IEP

However, Procedural safeguards give the parent/guardian of a student with a disability the right to seek a due process complaint if they believe any of these items have taken place. A due process complaint begins a process that may differ slightly per state, but generally follow the path found in this graphic.

Each has a specific process for resolution and if an ADR process was in place, you could save kids, relationships and use funding in a prudent manner.

This process is sound and every parent/guardian has the right to this process.  The financial concerns rise as each step through this process costs legal fees in the form of legal representation.  What I am suggesting here is to have a policy that is a step prior to a due process complaint.

This is where you may say, "Wait! I am an accessible school leader, families know they can reach out to me anytime for support." I am an accessible leader too but that did not stop parents who felt unheard by a staff member in some of my experiences from jumping over me to a legal advocate, particularly in places where an ADR process was non-existent.  Instituting an ADR process at the school level is an effort to say WE, not just me, are here to make a great learning environment for your child and we do not need a legal team to direct that passion.

With every initiative, success is achieved in the planning, communication, implementation, and monitoring, not the intention.

So, let’s get to ADR, what EXACTLY it is and the best practices associated with implementation.

First, PLAN:

Adopt and communicate a policy: Here is a school district's communication posted on the district website.

To understand the different paths of ADR visit this slide show

How do I communicate the policy? Frequently and in as many mediums as possible.  Staff presentations, Student/Parent handbook, Special Education procedure manual and the school website.

What needs to be understood by your staff:

Who takes the request for ADR? Everyone! Every staff member needs to understand that parents can bring issues and we want them to, especially early in their concern.

What documentation is needed? A log of ADRs, your responses and agreed (signed) resolutions are critical to success.

Follow through in implementation:

Who serves on the review of the ADR? You need your parent champion in special education to be involved.  Someone who understands how to listen more than they talk and can process the steps needed to be taken to resolve the concern.  If your special education department is in dire dysfunction you may want to create a stand-alone position that functions as the reviewer.  The cost savings will be far greater than the cost of the position.

Will ADR solve all of my special education department problems? No, sorry to be honest, but no.  Effective special education departments have clear policies and procedures that are implemented with fidelity.  Even greater is the sound implementation of a response to intervention framework that constantly collects, analyzes and acts on data to serve struggling students.  Add in strong instruction and a high expectation environment will put you in a great position to not need ADR on a frequent basis.

In summary, common sense is not always common practice.  Start with your purpose, you want to educate your students and parents want you to educate their children.  Common ground exists for this collaboration to be successful.  Understand that the parent/guardian has the right to trump you and take legal action. Your job is to show families that they do not need to and do not want to involve outside folks because no one cares more about their child's education than you and your staff.  Now that you are equipped with a process that can save children, relationships and appropriately….let’s get it done!