Significant Changes Come to the North Carolina Special Education Appeals System

Imagine you have a child who is deaf, but her school refuses to provide her with an in-class sign language interpreter. This happened to Amy Rowley in 1982 and situations like hers remain all too common.

Parents of students with disabilities have the right to challenge schools’ inaction and seek changes in services. This right is provided by the Individuals with Disabilities Education Act (IDEA), which gives parents the power to contest the accommodations and services—or lack thereof—provided by schools to their children with disabilities.

IDEA delegates to states the task of creating quasi-judicial bodies to administer impartial due process hearings where parents may appeal the special education arrangements given (or not given) to their children. The vast majority of states use a one-tier system where parents can directly appeal the quasi-judicial body’s decision to state or federal court. By contrast, parents in states with two-tier systems must navigate an additional quasi-judicial body before an appeal can be brought to court. Until November 2021, North Carolina was one of very few hold-out states that still used a two-tier system.

The Structure Set Forth by IDEA

Before Congress passed IDEA, students with disabilities were systematically denied access to their education. These students were often excluded from classrooms alongside their peers—or from school altogether. In an effort to correct this, IDEA mandates states provide a free appropriate public education (FAPE) in the least restrictive environment (LRE) to students with disabilities.

If a parent is dissatisfied with how a school serves their student with a disability, the parent may file a complaint. These complaints typically allege that a school has failed to provide the child with FAPE via the identification, evaluation, or educational placement of the child. IDEA requires local educational agencies (LEA) to have a mediation process in place. If parents are not satisfied with the mediation’s outcome, an impartial due process hearing may occur 30 days after the complaint was filed.

IDEA delegates to states the authority to choose how LEAs conduct these quasi-judicial impartial due process hearings, though they often feel very much like a trial. Unless otherwise agreed to by both parties, while families wait for their complaint to be heard, their child remains in their educational placement—even if it is the genesis of the complaint.

IDEA intended for the quasi-judicial system it created to allow for complaints to be heard more quickly than they would be in civil court. However, in practice, getting to the due process hearing can—and usually does—take time. Anecdotally, in New York City, despite federal law requiring that cases be resolved within 75 days of the complaint filing, during the 2018-2019 school year, resolution averaged triple that amount of time.

Once a hearing does occur, in the majority of states, if either party would like to appeal the decision of the impartial due process hearing officer, they may do so directly to court in a civil action. At the request of either party, the court may hear additional evidence to come to a decision based on the preponderance of the evidence.

However, a minority of states take advantage of statutory language that allows for a second round of impartial review by the state before a party may appeal to court. In these two-tier systems, the impartial due process hearing officer’s decision must go through the state educational agency (SEA) for an impartial review. Only after this second review may either party appeal the decision to court.

One-Tier v. Two-Tier 

A two-tier system is meant to provide quick corrections to errors made at the first level, reduce courts’ caseloads, and relieve parents of the financial burden often associated with litigation. However, in practice, two-tier systems often prolong any final resolution and do not reduce costs for families as many parents ultimately pursue their complaint until it winds up in court.

One reason parents hope to have their day in court is because of the rampant appearance of bias by hearing officers towards schools. These decision makers are perceived as not wanting to bite the hand that feeds them as LEAs and SEAs compensate hearing and review officers. The second-tier is viewed by some as “political” and a “rubber stamp” for the first-tier’s hearing officer. There is a belief that the only “truly neutral forum” for a special education claim is court.

A recent nationwide survey of special education attorneys showed that a second-tier of review does not significantly reduce the number of special education cases filed in court. Of survey respondents that had experience in both one-tier and two-tier systems, there was an overwhelming preference for one-tier systems. One attorney observed that, “[t]he two tier process simply adds another layer for district attorneys to bill or for parents to be burdened.”

Anecdotally, New York’s two-tier system has been the subject of immense criticism, in part because of its notorious case backlog. In December 2021, a law passed requiring that an impartial due process hearing officer be appointed immediately if one had not already been appointed within 196 days. As New York has tried to address the issues it faces within its due process system, it has been recommended that the state consider structural reforms, including a move to a one-tier system.

The recommendation to move to a one-tier system reflects a national trend. In 1991, 26 states used two-tier systems. By 2010, that number was reduced to nine. The majority of states have now elected to use a one-tier system. Though several states have transitioned from a two-tier system to a one-tier system, no state has made the opposite transition.

North Carolina’s Two-Tier Days

Until late-2021, North Carolina had a two-tier appeals system. In North Carolina, the impartial due process hearings are conducted by an Administrative Law Judge (ALJ) within the Office of Administrative Hearings (OAH). Prior to the elimination of the second tier, if the parent or school wished to appeal the ALJ’s decision, either party could file an appeal for review by an “impartial” state review officer with the North Carolina Department of Public Instruction (NCDPI)—the North Carolina SEA. If a school district appealed a decision by an ALJ that was favorable to a child with a disability, the decision was placed on hold during the second tier of review.

These second-tier review officers “were not required to be attorneys as judges in the first tier are[.]” Many believed no one “without legal expertise should be able to overrule an [ALJ].” Indeed, North Carolina was unique in that the ALJ oversaw the first-tier, not the second, meaning the most trial-like process occurred first.

Senate Bill 593

From 2011 to 2015, the Holland family fought Johnston County schools over services provided to their son, Ben, who has Autism. The Hollands believed Ben required additional therapies to reach his maximum potential and pursued a complaint alleging that the school failed to provide Ben with FAPE. The family lost their case at the impartial due process hearing (which took nearly a year to complete) and NCDPI affirmed the decision at the second-tier (which took about a month). The family viewed the second tier as “an inherently unfair one” because it required them to plead their son’s case to an adjudicator they saw as “selected by the other side[.]”

Ultimately, after bringing their complaint to court, a federal magistrate ordered the family and Johnston County schools into mediation, which resulted in a settlement that awarded the Hollands $200,000 and reversed key elements of the decisions made in the first two tiers of the process. While the school did eventually provide Ben with adequate services, the time it took the Hollands to navigate the various quasi-judicial and judicial systems cost not only hundreds of thousands of dollars in legal fees and outside therapies for Ben, but also precious time for Ben’s progress.

North Carolina State Senator Brent Jackson of Johnston County heard about the Hollands’ struggles. His office discovered that of the 16 cases that went up for second tier review since 2006, all but one were found in favor of the school system. In April 2021, Senator Jackson introduced a bill that simply eliminated North Carolina’s second tier. The bill amends state law so that the ALJ’s decision is final, unless “an aggrieved party brings a civil action.” The North Carolina School Board Association opposed the bill and called instead to limit the time ALJs had to hold hearings to five days.

The bill passed by a somewhat bipartisan vote in the Senate, but never moved in the House, so was eventually embedded by Senator Jackson within the 628-page, must-pass state budget bill. In November 2021, without much public discussion on the proposed change, North Carolina became a one-tier appeals system overnight as a result of the legislative savvy displayed by one powerful and determined state legislator.

Conclusion

During its two-tier days, the most commonly reported problem with the North Carolina special education appeals system was the length of the hearing process. This, of course, was the experience of the Holland family whose case before an ALJ took nearly a year. Following this long process, the Holland family found themselves in an appeal with a decision maker they viewed as biased.

Many parents have enthusiastically supported the shift to a one-tier system, which has brought North Carolina’s special education appeals system into conformity with the vast majority of states. The national trend to one-tier systems of review is supported by large bodies of research that show one-tier systems are better equipped to deliver swift justice in the form of services to children with disabilities and their families. What is more, removing the barrier to court will go a long way in reducing the bias—or, at least, the appearance of bias—and will increase overall faith in the system.

Now, if you are a parent of a child with a disability in North Carolina and you wish to contest the services they receive in school, you can reach a courtroom in one appeal—not two.

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Are you a parent of a child with a disability who is not receiving the services they need? The North Carolina Department of Public Instruction has free, online resources for parents of students with disabilities, including a guide on parental rights. Legal Aid of North Carolina Right to Education Project and Duke Law School’s Children’s Law Clinic have many free, online resources and provide free legal representation to those who are income eligible.

Sara Margolis

Sara Margolis is a member of the University of North Carolina School of Law’s class of 2023 and served as Editor in Chief of Volume 3 of the North Carolina Civil Rights Law Review.