Over the past year and a half, school districts have been inundated with high numbers of due process complaints and mediation requests. Looking back, it appears that as the wave of COVID-19 cases finally began to slow, the number of due process complaints and mediation requests increased drastically. As we head into 2023, we want to reflect on recent trends in due process litigation to help prepare for the year ahead.

The pattern of increased litigiousness is likely the culmination of increased frustrations with the effects that remote learning and COVID-19 had on students. Parents are frustrated that they are not seeing the progress they expected to see in their students’ goals. On the other side of things, school districts are seeing inappropriate behaviors in an intensity and severity they have never seen before.

ISBE’s 2021-2022 Report of Due Process Data reveals “educational placement” disputes as the leading issue in due process complaints during the 2021-2022 school year. According to ISBE’s Report, 266 due process complaints were filed during the 2021-2022 school year, significantly more than the 161 due process cases filed during the 2020-2021 school year. Of the 266 due process complaints filed in the 2021-2022 school year, over 60% of those complaints identified placement as an issue. Based on this data, we project that not only will we continue to see increasing rates of due process complaints during the 2022-2023 school year, but that placement will continue to be the leading issue identified in these disputes.

Despite the unprecedented number of due process complaints filed recently, very few proceeded to hearing. In the 2021-2022 school year, only 7 of the 266 due process complaints filed were fully adjudicated. The vast majority were settled before hearing through mediation, resolution sessions, settlement agreements, and other efforts of the parties. It is likely that the majority of due process cases will continue to be resolved prior to full adjudication at hearing.

In spite of this success in parties working together to resolve the issue prior to hearing, the success of initial mediation attempts have been less fruitful than in the past. Previously, initial mediation sessions were more successful and likely to be resolved either during the mediation session or shortly thereafter. However, over the past year, school districts and parents have been less successful in resolving complaints through initial mediation.  As a result, parties are having a harder time settling cases in a timely manner. While these drawn-out cases are a logical result of the increased frustrations of parents and school districts as we settle back into a new, post-COVID-19 normal, unfortunate side effects of these longer cases are uncertainty for the student’s services and placement, increased legal costs, and additional strain to the relationship between the school district and parents.

As 2022 draws to a close, what can we expect in 2023? It is likely that the number of due process complaints will increase, and placement will remain the prominent issue driving complaints. If trends continue, due process cases will remain drawn out as parties struggle to reach a settlement early on.

However, due process is not always a foregone conclusion. School districts can and should work proactively with their staff and with parents to resolve any issues. To lessen the chances of due process complaints being filed in the first place, we recommend taking some of the following steps:

• Ensure that parents can meaningfully participate in IEP decisions. The school district should do what they can to make sure parents can attend meetings and understand the discussions taking place. This includes the provision of qualified interpreters, if necessary, to ensure parents can fully understand and participate in the process. IEP meetings should be collaborative ventures between parents and the school district team.

• Be honest and use data. Ensure that IEP team decisions are data-driven. Be honest about student progress and student needs. To the extent the data shows a lack of progress, do not wait until the annual review to meet, but meet more frequently to discuss the student’s needs and other ways they can be addressed.

• Document disagreements in the Additional Notes. In addition, it is extremely important to thoroughly document the discussion during an IEP meeting in the Additional Notes section in order to preserve evidence of what occurred at the meeting, the position of each party, and how any disagreements were resolved.

For more information on IEP Best Practices, watch our recent webinar “IEP Best Practices and Ways to Avoid Due Process,” available under the Events section of our website.