Stephen A. Rosenbaum: Bureaucratic legalism: A proposal for inquisitorial decisionmaking in determining educational benefits and services
2017/2
Disability practitioner and scholar Stephen Rosenbaum proposes a radical change in the United States administrative adversarial adjudicatory process for resolution of special education disputes between educators and students with disabilities, looking for inspiration in part to Canada and the Commonwealth’s use of an inquisitorial approach. Adversarial adjudication has had many critics over the years. Typically, the dispute is over whether students are receiving an appropriate array of instructional interventions and services. The author’s blueprint calls for replacing the due process hearing with another model. Under current law, the hearing is usually conducted by an administrative jurist in which the parties present evidence, expert testimony and argument, if the parents and administrators have been unable to resolve their disagreement at a school-based team meeting, mediation or some other informal conference. In Rosenbaum’s proposal, disagreements would instead be reviewed by a special master whose expertise is in education or disability rather than law. Through a process of problem-solving or “active adjudication,” the master would attempt to quickly resolve the dispute by holding a conference, conducting a hearing or brief investigation, receiving more documents, consulting with experts or corresponding in some other mode with the parties. The master’s determination would be subject to judicial review in limited circumstances. (A version of this paper was delivered at a symposium at the University of California, Exploring Law, Disability and the Challenge of Equality in Canada and the United States (5 December 2014)).