The Place of the Request for Mediation Letter Under the IDEA
Millions of American public school students have learning disabilities. Each of them is guaranteed the right to a free appropriate public education, or FAPE, in the least restrictive environment possible. The right to a FAPE is guaranteed by the Individuals with Disabilities Education Act, 20 USC 1400 et seq., and to a lesser extent not relevant here, the Rehabilitation Act of 1973.
The IEP Process
The primary means by which educational and related functional goals are established and implemented for students with learning disabilities is the Individualized Education Program, or IEP.
According to the United States Supreme Court, “[t]he IDEA requires that every IEP include “a statement of the child’s present levels of academic achievement and functional performance,” describe how the child’s disability affects the child’s involvement and progress in the general education curriculum, and set out measurable annual goals, including academic and functional goals, along with a description of how the child’s progress toward meeting those goals will be gauged.” (Endrew F. ex rel. Joseph F. et al. v. Douglas County School District RE-1 580 U.S. ___ (2017): citations omitted)
The statutory requirements of the IEP were further explained in Schaffer v. Weast, 546 U.S. 49 (2005):
“The central vehicle for this collaboration is the IEP process. State educational authorities must identify and evaluate disabled children, §§1414(a)–(c), develop an IEP for each one, §1414(d)(2), and review every IEP at least once a year, §1414(d)(4). Each IEP must include an assessment of the child’s current educational performance, must articulate measurable educational goals, and must specify the nature of the special services that the school will provide. §1414(d)(1)(A).”
Endrew F. also clarifies that a free, appropriate public education is not simply the provision of some educational benefits to disabled students. More is required:
“To meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” (Endrew F. )
The IDEA envisions the formulation of an IEP under 20 USC section 1414 as a collaborative process:
“Congress placed every bit as much emphasis upon compliance with procedures giving parents and guardians a large measure of participation at every stage of the administrative process, . . . as it did upon the measurement of the resulting IEP against a substantive standard” (Board of Ed. of Hendrick Hudson Central School Dist., Westchester Cty. v. Rowley, (1982) 458 U. S. 176, at 205 – 206).
The central vehicle for this collaboration is the IEP process. While Rowley emphasizes the role of parents, another authority is careful to include the affected student. The IEP must be developed annually by “[a] school official qualified in special education, the child’s teacher, the child’s parents, and, where appropriate, the child.” (Walczak v. Florida Free Union School District. 142 F.3d 119, 122).
Assuming they can express themselves, students with learning disabilities may have valuable insights into their own strengths and weaknesses, into why certain teaching techniques are not working for them, and even into the circumstances that trigger their emotional or behavioral problems. Observing social interactions during the IEP may give valuable information about the student to other participants in the process.
Unsurprisingly, the IEP process generates a great deal of conflict— over whether the child’s disability has been properly diagnosed, the school district has measured his or her present level of academic achievement properly, has chosen an appropriate program or placement, is using the right educational techniques, is too restrictive or not restrictive enough, or is failing to achieve stated advancement, social or behavioral goals.
Parents are naturally very invested in their child’s progress and may pursue both administrative and court actions to ensure the best outcome. They may even unilaterally change a child’s placement to a preferred private school and seek reimbursement. But districts need not accomplish an ideal IEP. Under Endrew F., it need only be reasonably calculated to make appropriate progress.
This too leads to conflict, as prideful and budget-conscious school districts insist that the programs within the district are appropriate for every student, while parents seek the best placement possible, regardless of other factors.
The statutes and regulations embodying the IDEA provide a number of procedural safeguards to students and their parents during the IEP process. Among these is the right to voluntary state-funded mediation with neutrals who have expertise in learning disabilities and special education
Specifically, 20 U.S.C. section 1415(e)(1) reads:
“e) Mediation (1) In general
Any State educational agency or local educational agency that receives assistance under this subchapter shall ensure that procedures are established and implemented to allow parties to disputes involving any matter, including matters arising prior to the filing of a complaint pursuant to subsection (b)(6), to resolve such disputes through a mediation process.”
The implementing Federal regulations generally describe the requirements for an acceptable special education mediation program at 34 CFR 300.506, which provides:
(a) General. Each public agency must ensure that procedures are established and implemented to allow parties to disputes involving any matter under this part, including matters arising prior to the filing of a due process complaint, to resolve disputes through a mediation process.
(b) Requirements. The procedures must meet the following requirements:
(1) The procedures must ensure that the mediation process—
- (i) Is voluntary on the part of the parties;
- (ii) Is not used to deny or delay a parent’s right to a hearing on the parent’s due process complaint, or to deny any other rights afforded under Part B of the Act; and
- (iii) Is conducted by a qualified and impartial mediator who is trained in effective mediation techniques.
(2) A public agency may establish procedures to offer to parents and schools that choose not to use the mediation process, an opportunity to meet, at a time and location convenient to the parents, with a disinterested party:
- (i) Who is under contract with an appropriate alternative dispute resolution entity, or a parent training and information center or community parent resource center in the State established under section 671 or 672 of the Act; and
- (ii) Who would explain the benefits of, and encourage the use of, the mediation process to the parents.
(3) The State must maintain a list of individuals who are qualified mediators and knowledgeable in laws and regulations relating to the provision of special education and related services.
- (i) The SEA [State Educational Agency] must select mediators on a random, rotational, or other impartial bases.
(4) The State must bear the cost of the mediation process, including the costs of meetings described in paragraph (b)(2) of this section.
(5) Each session in the mediation process must be scheduled in a timely manner and must be held in a location that is convenient to the parties to the dispute.
(6) If the parties resolve a dispute through the mediation process, the parties must execute a legally binding agreement that sets forth that resolution and that—
- (i) States that all discussions that occurred during the mediation process will remain confidential and may not be used as evidence in any subsequent due process hearing or civil proceeding; and
- (ii) Is signed by both the parent and a representative of the agency who has the authority to bind such agency.
(7) A written, signed mediation agreement under this paragraph is enforceable in any State court of competent jurisdiction or in a district court of the United States.
(8) Discussions that occur during the mediation process must be confidential and may not be used as evidence in any subsequent due process hearing or civil proceeding of any Federal court or State court of a State receiving assistance under this part.
(c) Impartiality of mediator.
(1) An individual who serves as a mediator under this part—
- (i) May not be an employee of the SEA or the LEA [Local Educational Agency] that is involved in the education or care of the child; and
- (ii) Must not have a personal or professional interest that conflicts with the person’s objectivity.
(2) A person who otherwise qualifies as a mediator is not an employee of an LEA or State agency described under §300.228 solely because he or she is paid by the agency to serve as a mediator.” (Bracketed material added.)
The mediation process was added by Congress in 1997, in an effort to promote collaborative problem solving by school districts and parents. The relevant Congressional committee reports make it clear that mediation reduced litigation and focused the parties on the best interests of the child
The place of the request for mediation letter in IDEA due process
If the parties in conflict over an IEP or other IDEA related issue, either side may request a due process hearing, which is an evidentiary proceeding before an Administrative Law Judge. A due process hearing is required before a complaint may be filed in court.
Mediation is strongly recommended before engaging in a due process hearing, which can cost the parties tens of thousands of dollars.
Congress adopted a statutory policy of limiting unnecessary paperwork:
“teachers, schools, local educational agencies, and States should be relieved of irrelevant and unnecessary paperwork burdens that do not lead to improved educational outcomes.” (20 USC §§ 1400(c)(8)-(9).) Because of this policy, a brief, straightforward letter to the office of dispute resolution, mediation administrator or similar division within the relevant State Department of Education will serve to begin the mediation process.
Each state receiving related federal funds must maintain a roster of qualified mediators, develop a system for assigning impartial neutrals fairly, administer and fund each mediation. The request for mediation letter. should include the special education student’s name, age, district, school, grade, and teacher or teachers involved in the dispute to be mediated.
Additionally, it must include the name, address and telephone number of each party to the dispute, as well as a brief description of the relevant facts and issues in dispute. Copies of the request for mediation letter should be sent to the student’s principal and involved teacher(s) and any District officials involved in the conflict.
The request for mediation letter is not a legal brief, a detailed explanation of the student’s disabilities, or an opportunity to criticize an IEP. Those things will come later, if necessary. The informal letter is simply a notice to the parties and the state educational agency’s dispute resolution office that mediation is needed for a given disagreement under the IDEA.
The tone of the letter should not be adversarial. An overly aggressive letter or a powerful piece of advocacy will not sway a mediator. It may even convince another party that attempts at mediation are a waste of time.
Even if you don’t believe another party will consent to mediation, or you have doubts about the process yourself, send a non-adversarial request for a mediation letter if you find yourself in a special education conflict.
Let the mediator do his or her job. If the process is successful, the savings in time, money, distractions from other priorities, and stress will be well worth it and will allow the focus to return to the free, appropriate public education of the affected student.