I am currently working on two due process hearing decisions. Those of you familiar with special education law understand that I absolutely cannot comment on the facts of the cases.
I do want to talk about the process of decision writing, however. This is one of the most important things that I work with hearing officers on while training them. It is a lot more difficult than it looks. There is generally a voluminous record: multi-volume transcripts and a ton of exhibits. From this jungle of paper we must cull findings of fact. Not everything in evidence, just facts of decisional significance. Then we must apply the facts to the law. The law sounds pretty simple, but in fact the IDEA is a huge statute, with amendments that appear to have been cut-and-pasted in almost random fashion, possibly by monkeys. For example, Section 615 is labeled "Procedural Safeguards," yet there are other procedural safeguards set forth in many other places in the Act, and at least a few (e.g., state complaints, the five-business day disclosure rule) that may be found only in the federal regs. Speaking of the federal regs, they must also be considered, including the 215 odd pages of fine print, tri-column analysis of comments by OSEP. Then of course, state regulations must be studied. It is a difficult and exhausting process.
So if I'm a little grumpy the next few weeks- excuse me.
I should note, however, that I love writing decisions. If the hearing officer does a good job, the decision should result in fair and just application of the law for the parents, the school district and the student. Hearing officer decisions are subject to appeal to court, as they should be, but the hearing officer generally has the first opportunity to fairly apply the law. Judicial review is an important safeguard, and courts are not hesitant to overturn poor hearing officer decisions. For the most part, however, courts are deferential to the decision if the hearing officer has been fair, reasonably thorough and careful in the application of the law. I recently learned that a federal district court has upheld a huge decision I had written a couple of years ago. That may seem like a long time, but unfortunately, it isn't. Even the Supreme Court has commented in the Burlington decision about the very long time it takes to resolve a special ed dispute. This is not what they intended in the mid seventies, but it is where we are now. Once again, we take the law as we find it!