The Individuals with Disabilities Education Act of 1997 (IDEA), 20 U.S.C. 1401 et. seq (IDEA) is overall an extremely well-written statute designed to improve education results by ensuring equality of opportunity, full participation, independent living, and economic self-sufficiency for those with disabilities. In the important area of conflict resolution, however, substantial revision is needed. Children, parents and schools are not adequately collaborating and education is suffering as a result. Mediation should be available to those involved in education, mediators need to be alert to the ethical issues involved in mediation concerning children, facilitation should be available at Individualized Education Program (IEP) meetings, and collaborative law should be encouraged whenever possible by litigants in this field.
Conflict is natural part of life. (See “Decreasing Violence Through CR Education“) More than ever before, Americans are recognizing that collaborative methods can make conflict a positive, rather than negative, force. Mediation has consistently resulted in more litigant satisfaction, higher rates of settlement and greater compliance than court-ordered agreements. The accomplishments of the postal conflict resolution program and other workplace programs have been so phenomenal that now virtually all federal agencies employ mediation and facilitation to improve employee-employer relationships. Peer mediation programs at schools have proven to decrease expulsions and suspensions and increase academic achievement.
Schools are a natural breeding-ground for conflict, which can be either harnessed to lead to innovation, better communication and improvements in the status quo or simply left to fester. Conflicts occur between students, between teachers and students, between parents and administrators, etc. The conflicts can be between two individuals or a group against either one or more children. Conflict is particularly high when children with special needs are involved: greater demands for understanding and tolerance may be placed upon peers and teachers. Behavior stemming from frustration may be viewed as being “disrespectful”, rather than recognized as a symptom of failing to address a learning disability.
I. Mediation Will Increase Whole-School Approaches And Pre-Referral Intervention to Reduce The Need to Label Children as Disabled in Order to Address Their Learning Needs
Mediation should be available to help the parties understand the cause of disputes in the school setting, including disputes that are or could be the result of a child’s disability. Recognizing that no child could “reasonably be expected to succeed in life if he is denied the opportunity of an education,” ( Brown v. Board of Education, 347 U.S. 483 (1954)) Congress enacted the Individuals with Disabilities Education Act of 1997 (IDEA), 20 U.S.C. 1401 et. seq., to direct the process by which decisions are reached that have potentially life-long consequences for a child. Prior to enactment of the predecessor statute to the IDEA, Congress had investigated the status of children with disabilities and found that “the most recent statistics provided by the Bureau of Education for the Handicapped estimated that of the more than 8 million children . . . with handicapping conditions requiring special education and related services, only 3.9 million such children are receiving an appropriate education. 1.75 million handicapped children are receiving no educational services at all, and 2.5 million handicapped children are receiving an inappropriate education.” (United States Code Congressional and Administrative News 1975 at 1432 (U.S.C.C.A.N. 1975), 20 U.S.C. Sect. 1400 (c)). At present, over five million children receive special education services under the IDEA. (Wright & Wright, “Special Education Law” (2000)).
While the concern remains to insure that all children with disabilities who are in need of special education and related services are identified, (20 U.S.C. Sect. 1412(a)(3)), there is growing concern that problems are being intensified “with mislabeling and high drop out rates among minority students,” (20 U.S.C. Sect. 1400 (c)(8)), who are over-represented particularly in stigma-associated categories such as mental retardation and emotional disturbance. The essence of identification of children with disabilities is not labeling, but locating and evaluating children, “regardless of the severity of their disabilities, who are in need of special education and related services.” 20 U.S.C. 1412(a)(3)(A). “Construction – Nothing in this Act (the IDEA) requires that children be classified by their disability . . .” so long as each child who needs the special education and related services receives them. 20 U.S.C. 1412(a)(3)(B). Recognizing the negative impact of labeling, Congress sought development of “whole-school approaches and pre-referral intervention to reduce the need to label children as disabled in order to address their learning needs. . .” 20 U.S.C. 1400(c)(5)(F). Classification by disability is unnecessary even in preparation of the Individualized Education Plan (IEP), which requires consideration of the child’s individual strengths and needs, rather than generalized approaches to a disability or disabilities. 34 C.F.R. Sec. 300.346 & 300.347.
Mediation of various disputes at a school could help define the whole-school approaches and pre-referral interventions most likely to succeed at the school involved. Mediation outcomes are unlimited, with examples such as changing a current school rule or practice, increasing the counseling or health technician staffing, installing a water fountain, providing breakfast, checking on financing mechanism’s for new eyeglasses, developing friendship groups, or starting a soccer team. Mediation can also serve as a way of identifying children in need of special education services, as required under child find. 20 U.S.C. 1412 (a)(3). The benefits of students being permitted to air complaints is great. In order to foster psychological, healthy functioning we need to promote empowerment which gives students the opportunity to learn to control their own lives (Meyers & Nastasi, 1997). Regardless of the child’s identification status, accuracy in understanding a child’s special needs and strengths is important to insuring appropriate services are in place. For example, unless accurate information is brought to light prior to entering middle school or high school, the child who has been mislabeled in elementary school will remain mislabeled and, accordingly, continue to receive inappropriate services and/or be placed in an inappropriate setting. On the other hand, children with unidentified special needs are deprived of the necessary planning during preparation of an individualized education plan (IEP) to address the “child’s anticipated needs” in the new setting, as required under 20 U.S.C. Sect. 1414(d)(4)(A)(iv). The impact of the student’s disability may not be fully felt until the student has failed due to the increased demands of middle school, the change in school and classroom structure, or the reduction of general support services. The long-term consequences of failing to meet the student’s need for special education and related services are grave. Many students are unnecessarily deprived of the skills required for independent living and employment. As many as 70% incarcerated juveniles suffer from disabling conditions, compared to 8.6% of all students in public school identified as disabled under IDEA. (Burrell, S. & Warboys, L. “Special Education and the Juvenile Justice System”, Office of Juvenile Justice and Delinquency Prevention (July 2000)). Congressional hearings found 65% of the disabled detained juveniles had no IEPs and 73% of those with IEPs were found to not have been receiving the services listed. (Asherman, J. AThe Unnecessary Detention of Children in the District of Columbia@ Volume3, n.2 District of Columbia Law Review 311 (Fall 1995)). Researchers have estimated that the cost of one youth leaving high school for a life of crime and drug abuse costs the nation $2 million. (“Juvenile Offenders and Victims: 1999 National Report,”(NCJ 178257) Office of Juvenile Justice and Delinquency Prevention.)
If the first point at which the parent or child is interacts with a school is after the child has been suspended or disciplined, neither the parent nor the school is likely to consider the other part of a joint “team”. The sense of common fate that has been shown to improve cohesiveness (Jacobson, 1973) is at its lowest. Since the only consistent members of an IEP team is usually a parent, her/his involvement in the team must be cultivated. While the school system may wish to avoid the burden of educating the child, the child’s need for education does not diminish with problem behavior. A mediator may be the necessary anchor to keep the school system and the parent and child willing to continue interacting.
II. Current Mediation Provisions under the IDEA Need to be Expanded
The current provisions in the IDEA on mediation, 20 U.S.C. Section 1415(c), do not take advantage of the numerous opportunities to employ effective alternative dispute resolution practices earlier in the process or adequately address the unique ethical issues in making decisions that impact upon a child’s life. Mediation is provided only as an alternative to a due process hearing. It is held between a parent and a school official who may not be the correct party to the dispute or have the necessary information to develop viable alternatives. Due to the forum, it is limited to being of assistance to children who have actively involved parents. The child normally must have already been identified as a child with special needs. Mediators may have been trained only with the techniques used to conduct business dispute mediation, which often entails two parties with equal responsibility and power and no on-going relationship. The parent’s legal responsibility in education is limited to ensuring attendance, while states and their educational agencies have sole responsibility for providing all children with a free and appropriate public education including “special education and related services designed to meet [the] unique needs” of the child with a disability, 20 U.S.C. 1400(d). The threat of a due process hearing if agreement is not reached may be viewed by the school system as minor: in general, parents can only gain through a due process hearing that to which their child was already entitled to receive, the parents can be forced to re-litigate annually, and the expense of litigation can exceed the cost of removing the child from public school. The parents’ need to maintain a positive relationship with the school system is great: the services their child receives may well depend upon it.
For education mediation to be effective, it must be recognized as being similar to parenting (divorce, custody, family) mediation, work-place mediation or other complex mediation. The mediation may require a number of sessions, rather than just one. The mediator has an independent fiduciary duty to the child to ensure the child’s best interest is the focus of the mediation. The mediator’s duty includes leveling the playing field between the parent and school system; correcting misinformation and alerting parties when necessary experts must be consulted. The mediator should also alert the parties that any agreement involving a child is subject to future modification based upon changed circumstances or new information (as with custody agreements).
III. The Availability of Mediators/Facilitators during the IEP Development Process will Result in Improved Employment and Independent Living for Children With Disabilities.
Use of external, neutral mediators/facilitators during the IEP process, rather than only after the process has broken down, should result in greater success for children with disabilities or learning differences. “Facilitation” is a preventative process that entails use of a third party neutral or neutrals to help groups comfortably accomplish their work (Fleischer, J. and Zumeta, Z. “Preventing Conflict through Facilitation“). The facilitators role includes that of “legitimizer” who helps others recognize the right of participants to be team members; “process facilitator” who provides the procedure for the meetings; “resource expander” who links the group to outside experts and resources; “problem explorer” who assists in examining the issues from multiple perspectives, with identification as only one of the option; “agent of reality” who helps build reasonable and implementable solutions; “scapegoat” who takes the blame for an unpopular decision the team nevertheless agrees upon as the best alternative; and “leader” who helps move the process forward and, on occasion, make substantive suggestions. (Moore, C. “The Mediation Process: Practical Strategies for Resolving Conflict” pp. 18-19 (2nd Ed. 2000), quoting from the American Arbitration Association description of a mediator.) Unlike mediation, a facilitated IEP meeting would have the confidentiality provisions generally applicable to IEP meetings. See Maryland State Department of Education, “Identifying Specific Learning Disabilities” (Maryland’s Technical Assistance Guide” (June 2001)(discussion on facilitators). pg. 28.
All decisions under the IDEA are intended to be made by a collaborative team which includes parents. (20 U.S.C. Sect. 1414, IDEA Regulations, App. A (9)). Congress recognized that more than twenty years of research and experience demonstrated that parental and family involvement in decision-making improved the effectiveness of education of children with disabilities. (20 U.S.C. 1400 (c)(5)). Since the team’s decisions impact directly upon the child, Congress also included the child as a member of the team if his or her participation could be secured appropriately. (20 U.S.C. Sect. 1414 (D)(1)(b)). Collaboration by the parent and child is paramount to proper identification, because “(m)ultiple explanations exist for underachievement” (MSDE, “Identifying Specific Learning Disabilities – Maryland’s Technical Assistance Guide,” pg. 13 (June 2001) and they may be the only source of information on factors influencing the child’s school performance. The mere creation of a group consisting of school personnel and the parent and child, termed as a “team”, does not insure the development of a collaborative process. (Deutsch, 1949a & b). Collaboration is undermined by perception of a group as composed of two competing groups, such as “parent” and “school”, rather than as one group with a shared objective (Sherif, 1966; West, 1990). Members may derive their social identity from an in-group consisting of less than all group members. (Tajfel, 1978; Tajfel and Turner, 1996.) Thus, for example, while school personnel deriving their social identity by viewing the school system as the in-group has benefits at the workplace (Abrams et al. 1998), it is counterproductive in meetings with parents and children. Researchers have consistently found that group members favor their own group, or “in-group”, in their perceptions, judgments and behavior. (Mullen et al., 1992) High-status groups have an even greater tendency to show ingroup bias. (Id). An in-group/out-group dichotomy may be further exacerbated by team members understanding of the IDEA. For instance, the “team” orientation is undermined if school officials believe their obligation to be determining whether a student’s school problems are due to environmental, cultural, or economic factors, because they “are not comfortable discussing such a sensitive topic with families.” (MSDE, “Identifying Specific Learning Disabilities – Maryland’s Technical Assistance Guide,” pg. 13 (June 2001)).
Despite the difficulties of cultivating the collaborative process envisioned under the IDEA, the benefits of such a process are great. Researchers have found that the quality of the results obtained through a collaborative process are superior to that achieved through a competitive process. (Johnson e. al. 1981). These findings have been mirrored by the experience of practitioners in the field of alternative dispute resolution (ADR). (Moore, “The Mediation Process: Practical Strategies for Resolving Conflict” (2nd. ed. 1996); Klein, Allison, & Sekus, “Mediation: A Handbook for Maryland Lawyers” (1999); Melamed & Reiman, “Collaboration and Conflict Resolution In Education” Consortium for Appropriate Dispute Resolution in Special Education [Cadre].) .
Characteristics of a collaborative process include: 1) open and honest communication, rather than the lack of communication or misleading communication; 2) increasing sensitivity to similarities and common interests, rather than increasing polarization; 3) climate of trust and increasing willingness to respond to needs and requests, rather than increasing suspicion, hostility and insensitivity; and 4) task oriented with enhancement of mutual power and resources, rather than hierarchical, coercive, or blame oriented. (Deutsch, 1973, pp.29-30; Saposnek, “Mediating Child Custody Disputes”(1983).) Mediators/facilitators have been specifically trained to develop a collaborative process. Such a process also requires members strive to express their opinions, which permits learning and mutual influence. (Van Offenbeek & Koopman, 1996). Researchers have found that groups of people may be influenced to give incorrect answers to clear-cut obvious judgments in the presence of a unanimous majority (Asch, 1956), with the influence being heightened in the presence of a clear-cut goal. (Deutsch & Girard, 1955). In contrast, being exposed to opposing opinions increases innovation and variety of solutions, (Nemeth & Owens, 1996; Vroom & Yago, 1988), as does a more heterogeneous team. (Tjosvold, 1990).. Mediation/facilitation fosters innovation. Effort to foster innovation are apparent throughout the IDEA. Rather than limiting IEP teams to a few methods of addressing needs, the IDEA contains a non-exhaustive list of methods, including provision of services by outside experts, 20 U.S.C. Sect. 1401 (22); assistive technology, 20 U.S.C. Sect. 1401 (1); aids, services and supports in both regular education and other educational settings, 20 U.S.C. Sect. 1401 (29); instruction in the home and other settings, 20 U.S.C. Sect. 1401(25); placement in private schools, 20 U.S.C. Sect. 1412 (a)(10)(B); program modifications, 20 U.S.C. 1414 (d)(1)(A)(iii); positive behavioral interventions, 20 U.S.C. Sect. 1414(d)(3)(B)(i); and training or support of school personnel, 20 U.S.C. Sect. 1414(d)(1)(A)(iii), and parents, 20 U.S.C. Sect. 1401(25). In 1997, Congress clarified that past disability-label based placement should be replaced with a more individualized, innovative approach in order that “special education can become a service for such children rather than a place where they are sent.” 20 U.S.C. 1400(c)(5)(C).
The facilitators’ role would include insuring IEP team members understand their own and other team members’ roles and duties. The IEP team is a multi-disciplinary team in which each member has a specific role and responsibility. The parent’s role is to provide information and Aserve as an expert on their child and his/her strengths, weaknesses and needs . . . A Maryland State Department of Education, “Identifying Specific Learning Disabilities” (Maryland’s Technical Assistance Guide (June 2001). pg. 28-32. Although perhaps unbeknownst to them, school personnel and related service providers, such as audiologists and occupational therapists, have a fiduciary duty to the student, similar to a doctor towards his patient or a guardian ad litem toward his ward. Just as the physician’s fiduciary duty requires he/she adequately examine the problem, accurately delineate his/her area of expertise, and inform patients of the best medical recommendations without regard to financial pressure from an HMO, school personnel and related service providers have an ethical obligation to obtain necessary information, accurately state their opinion in their area of expertise, and recognize areas of other’s expertise. The team also must include a representative of the public agency who has authority to commit agency resources. IDEA Regs., App. A, no. 22. That individual’s duty is to serve as a resource to the team concerning specially designed instruction to meet the unique needs of children with disabilities and the availability of resources of the public agency. 24 C.F.R. Sect. 300.344. Currently, little attention appears to be focused on determining appropriate means of gaining the child’s input as a member of the team. (20 U.S.C. Sect. 1414 (D)(1)(b)). On a national level, Congress enacted the IDEA recognizing that the cost to society in failing to prepare children for Aemployment and independent living@ by providing them with “free appropriate public education that emphasizes special education and related services designed to meet (the child’s) unique needs” is far greater than the cost of such education. 20 U.S.C. 1400 (d). In designing the procedures, Congress determined that the best method to improve children’s educational opportunity was to use a team’s best judgement on how to meet needs one child at a time. Due to judicial decisions, however, clarification is needed of the duty owed by professionals entrusted with the care and education of children. In disputes similar to that between two acceptable parents in custody cases, court have made statements about children being entitled to Aan appropriate education, not the best education. In order to reach an appropriate education, one needs to have all team members applying their best judgments and expertise. Court decisions have been misinterpreted as a directive that each individual member of the team should not use his/her best judgment, but recommend something possibly acceptable and less expensive. Misinterpretation has also lead to the belief that a child must fail before action is taken to meet his/her needs. To have even a possibility of children with disabilities receiving appropriate education, all those involved must apply a standard of what that expert believes to be in the best interest of the child.
IV. Collaborative Law Improves Compliance with the IDEA and Outcomes for Children
Finally, it should be recognized that contrary to current regulations (IDEA Regulation, Appendix A, no. 29) the presence of attorneys at IEP meetings can be very helpful. School personnel and related service providers may be unfamiliar with the law or misinterpret it; they may be uncomfortable with or intimidated by forms; and unaccustomed to a team, rather than hierarchical, approach. Legal issues arise constantly during IEP meetings, from evidentiary rulings (hearsay is admissible) to substantive concerns (accommodations must be provided at extra-curricula activities.) An outsider’s presence may also be beneficial to counteract the more subtle influences of group pressure, professional pressure, and time pressures. Attorneys also provide a handy scapegoat to insulate the student from the dispute between his/her parent and the school. “Children are not static beings; neither their academic progress nor their disabilities wait for the resolution of conflicts.” Susan N. v. Wilson Sch. Dist., 70 F.3d 751, 760 (3d Cir. 1995). In addition, attorneys can insure that the team considers often over-looked non-academic (social-emotional) needs in order to function in the school setting. “In evaluating whether an IEP is reasonably calculated to provide educational benefits, courts have considered four factors: (1) the program is individualized on the basis of the student’s assessment and performance; (2) the program is administered in the least restrictive environment; (3) services are provided in a coordinated and collaborative method by the key ‘stakeholders’ in the child’s education; and (4) positive academic and non-academic benefits are demonstrated by the program.” King v. Board of Educ. of Allegany County, Maryland, 999 F.Supp. 750, 767?68 (D.Md. 1998).”
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