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The big three questions
By Jim Walsh
 When parents of students with disabilities take the school district to a due process hearing, they usually lose. Some people think this means there is something wrong. Some have advocated a change in the system and, indeed, the Texas Legislature is looking into doing just that. This month we offer a few observations to explain why school districts win more hearings than they lose.
We think it’s pretty simple. We think that the weak cases get sorted out before they go to a hearing. We think that school districts do this by asking themselves “The Three Big Questions.”
Question No. 1: Is it worth fighting over?
We have learned that special education due process hearings are costly in every sense of the word. The system is legalistic and formal, thus virtually requiring that lawyers be involved.
Moreover, the process is stressful, exacting a toll from staff. It is time-consuming, diverting the attention of educators from other students and other issues. It is often harmful to the relationship with the parents. A wise school administrator must weigh all of the costs before telling the lawyer to go forward. There are many disputes that are not worth a major fight.
The cases that end up going to hearing have passed the first test: The school district has determined that there is something at stake that is worth the fight.
Question No. 2: Is the school united?
School administrators who want to take a matter to hearing without the support of the teachers and therapists who work directly with the child are leading a charge with no one following. It won’t work. In a due process hearing, the most important witnesses are the ones with the most day-to-day contact with the student — the teachers and direct service providers. Wise administrators have learned to listen closely to those people before deciding what to do.
The cases that end up going to hearing have passed the second test: The school staff is united. The teachers and direct service providers believe they have provided an appropriate education, and they will say so under oath.
Question No. 3: Has the school satisfied the legal standards?
The school district will rely on its lawyer to answer this question. Obviously, people can disagree as to whether or not the school has satisfied its obligations. That’s why cases get filed in the first place. But the lawyers who represent school districts have no reason to encourage litigation in a losing cause. If there are problems with the case that the lawyer can see, the lawyer will recommend a settlement. Lawyers do not like to go into a hearing believing that they are likely to lose. It is embarrassing to the lawyer, does not serve the client well, and is not even good in a business sense because it does not help foster a strong long-term relationship with that client.
In special education matters, there are many meetings with parents. Mediation is available. And now the law requires a “resolution session” as a last-ditch effort to resolve differences. Most of the disputes get resolved somewhere along the line before they end up before a due process hearing officer. Certainly this is true whenever the school district lawyer has advised the school that there are significant legal problems with the case.
The cases that end up going to hearing have passed the third test: The lawyer has advised the school that its program and services meet the legal standards.
We could cite many other reasons why school districts win more often than not.
But we think that the proper use of The Big Three Questions Test by school administrators is the main reason. School districts that use this test properly weed out the cases that should be weeded out. What’s left, then, are the cases in which a united group of educators has served a student properly and are fighting for a worthy cause.
We should all celebrate when the hearing officer rules in favor of that school.
JIM WALSH is editor in chief of Texas School Business and the managing editor of Texas School Administrators’ Legal Digest. Also a school attorney, he co-founded the firm of Walsh, Anderson, Brown, Gallegos & Green, P.C. He can be reached at jwalsh@wabsa.com or by visiting www.walshanderson.com.
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