What is due in due process?

 What is due in due process?

Fifty years ago, when the Education for All Handicapped Children was signed into law, one of the provisions assured families due process in securing a free and appropriate education for their child (FAPE).   The Individual Education Plan (IEP) is a contract between the family and the school system to ensure that FAPE is provided.  If the school district doesn’t provide the education as detailed in the plan, families have the right of due process to make their case known.

Due process means that the family gets to present its argument before an independent arbiter and, if they can make their case, get the education they want for their children.

That right has been significantly watered down over the last few years.   The vast majority of due process cases are brought by families wanting a non-public placement for their child.  In days of old, the school district had the burden to prove that their program provided FAPE.  In those days families won 97% of the cases.  But that was a bar too low for school districts, so they pushed to get the law changed.  Now the burden of proof  has been shifted to the party proposing the change in placement which is almost exclusively the parents.  The arbiters of these cases are trained by the Maryland State Department of Education so they generally see the case from the school’s point of view, as in foxes watching the hen house.    In the 23-24 school year, 20 cases made it to the state level for due process.   Only 2 of those cases were won by the parents.

Children with disabilities are often placed in general education classes with plain kids.  To help these children access the curriculum, one-to-one aides are provided.  These people are poorly paid and don’t receive benefits.  Nor are they trained on how to teach kids with disabilities. Not surprisingly the positions are hard to fill.  Right now, in one of the counties in Maryland, there are 434 children who are supposed to be receiving the benefits of a 1:1 aide.  But only 354 of those kids have an aide.   The remaining 80 do not.  That means two things: First of all, without the aide these 80 kids are going to have a very tough time accessing the curriculum which is already beyond their reach.  Secondly, the 1:1 aide is in the child’s IEP which means it’s a contractual agreement between the school and the family.  These families have a right to due process because their child’s contract for service is being violated.   The district says it’s trying to hire.   The Maryland State Department of Education says, after an audit “it may require corrective action”, but no audit is currently scheduled.   The U.S. Office of Education says, not our problem to investigate complaints.   Even if those complaints stem from the violation of a federal statue???  That's odd?  So unless the families of these children do something, the students will go on just sitting in classes with content they cannot access.

Looks like due process may be one more right that is becoming aspirational.