A proposal by the New Jersey Department of Education (NJDOE) and the Office of Administrative Law (OAL) to shorten the significant delays in special education hearings impermissibly restricts students’ rights, according to New Jersey’s leading advocates for students with disabilities. The “Proposed Special Education Due Process Hearing Guidelines” (Proposed Guidelines) also fall short of addressing the NJDOE’s longstanding failure to comply with the 45-day time limit for conducting these hearings required by federal and state law.
In 2019, the NJDOE was notified by the U.S. Department of Education of its non-compliance with federal law requiring timely hearings on special education disputes. The NJDOE is currently the subject of ongoing corrective action. The Proposed Guidelines, issued on January 17, are intended to make due process hearings more effective and efficient and shorten completion of the hearings to the legally mandated 45-day timeframe.
The New Jersey Special Education Practitioners, Education Law Center, Disability Rights New Jersey and Rutgers Education and Health Law Clinic submitted comments in February raising concerns that the Proposed Guidelines infringe on the rights of students with disabilities by:
- allowing “other reasons,” such as the unavailability of hearing dates, to extend the federally mandated 45-day time limit;
- shifting the burden of proof onto parents, in violation of state statute and a ruling of the New Jersey Supreme Court;
- imposing blanket limitations on the number of hearing days and the length of witness testimony, in violation of federal law; and
- creating a heightened standard for requesting adjournments that fails to ensure that hearings will be “reasonably convenient to parents,” as required by law.
The groups also criticized other provisions in the Proposed Guidelines, including: allowing 10 of the 45 days to elapse between the initial settlement conference and a prehearing conference; avoiding clarity and fairness in the handling of expert reports; and failing to address solutions for reducing hearing time, such as streamlining cases with limited issues, placing time limitations on motion practice, requiring the scheduling of hearings during summer months, and holding hearings on consecutive days.
The Proposed Guidelines do not address the underlying structural issues resulting in New Jersey’s high number of due process cases and the OAL’s inability to complete hearings in 45 days. These issues include the need for an enhanced program at the NJDOE to identify systemic problems and corrective action through monitoring, training, and technical assistance to districts. In addition, the OAL lacks the capacity to handle the volume of hearings. State investments are urgently needed for the OAL to hire and retain sufficient numbers of qualified judges; to provide legal, clerical and technological support to those judges; and to develop the agency’s case management and reporting infrastructure.
Both the NJDOE and the OAL have also been sued over their non-compliance with the 45-day rule. A federal lawsuit, C.P. v. New Jersey Department of Education, was filed in May 2019 by John Rue & Associates and five other law firms on behalf of a class of parents and children seeking to bring the special education hearing process into compliance. Disability advocacy organizations and others, including ELC, are participating in the case as “amici,” or friends of the court.
“New Jersey’s system of resolving special education disputes between students with disabilities and school districts is clearly broken,” said ELC Senior Attorney Elizabeth Athos. “We strongly encourage all interested stakeholders to address the flaws in the proposed guidelines and to propose better solutions. And we urge the NJDOE and the OAL to solicit feedback from the many parents of children with disabilities who navigate due process on their own, without legal representation.”
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