Changes for Pennsylvania special education practice

Bold prediction: special education disputes will lead to more litigation. Perhaps it is not so bold, after all. But if Pennsylvania finalizes the proposed changes to Chapter 14 of the Education Regulations and removes the second level of administrative hearing appeal, I believe the legal practice will undergo some significant changes.

Delving into some generalizations, the second level appellate review has been viewed as a low cost second chance. Most cases (but not all) proceed to that level. But, I think, most cases stopped after two runs through administrative review. This is especially so if both levels of administrative review yielded the same essential result. Most courts, we tend to think, would not want to second-guess two levels of administrative review.  In playing for the best-out-of-three, if the hearing officer and the appeal panel came to quite different results, the case is more likely to get to court.  And, finally, in those cases offering very mixed relief after two reviews, the parties seem to realize they are better off taking matters in to their own hands and settling the claims.

While lawyers on both sides may have their gripes about the appeal panels, the process probably, perhaps in a perverse way, resulted in less cases going to court. So what might happen without that second level of review?

·        Probably more court cases.

·        Hearings might look more like traditional discovery with the expectation that the hearing is only the first step, a precursor to court.

·        Related to this, given the short time lines for administrative hearings, court proceedings will look more like traditional litigation than the paper appeal that now usually occurs. The parties will be submitting more evidence and expert testimony in court, particularly as, once in court, the Federal Rules permit discovery opportunities and more time to develop a case. Indeed, in this situation, the lawyers probably have a duty to their clients to use all the available court-level tools.

·        And that case might likely be a more traditional de novo review without deference to the hearing officer. The “presumed expertise” of the hearing officer will be challenged. One of the main problems with the current system is that hearing officers are not always educational experts or at least are not trained in current practices like educators and psychologists. Thus, the losing party will argue that the court should give no deference to the decision. This, of course, fits well with offering additional evidence.

·        Whether the presumed expertise stands or not, given only one level of presumed expert review, administrative findings of fact are likely to be subject to reversal and modification than currently.

·        Additional evidence proceedings in court will become actual trials if the deference standard is not going to apply.

The experience in one-level review states, such as New Jersey, might be instructive to some extent. In that regard, it seems in the Third Circuit that more federal special education cases come from New Jersey than Pennsylvania. But still, it will probably be only somewhat instructive. As noted, in Pennsylvania we will be dealing with a sudden change, from a system that by fault or designed weeded out many cases, to a situation in which both sides will scramble for an advantage. 

In the end, the field will be of special education litigation, not special education hearings.

Glass houses and investigation of employment discrimination

Employee claims employer’s practices and or supervisors are discriminating. Employer investigates the claims and finds, not discrimination, but other facts showing conduct justifying termination. Did the employer retaliate? 

At least in the case below, the U.S. Seventh Circuit Court of Appeals said no. Given that employer investigations are a necessary part of good employment practices, the ruling makes sense. But employers might consider making sure that policies and practices are clear regarding how the employer may use information uncovered in an investigation.

The employees, university police officers, in Nichols v. Southern Illinois University, --- F.3d ---, 2007 WL 4553649 (7th Cir.), claimed retaliation arising from the University’s investigation into their complaints of discrimination.

They claimed, among other things, that they were denied “upgrades” (temporary promotions) based on race. Eventually, the officers wrote complaint letters to the University President leading to a University investigation regarding their complaints. The investigation uncovered facts and circumstances that resulted in formal dismissal charges against two of the officers. After separate hearings, the Merits Board found just cause for the charges against the two officers. 

After noting that the Merit Board, and not the University, actually dismissed the officers, the court observed that the officers were dismissed for reasons that were separate and distinct from the discrimination claims (reason such as gross insubordination, personal use of police cars, making false statements, failure to cooperate with an investigation, and “their baseless allegations against fellow officers.”). Their termination was based on their “objectively baseless allegations” against the other officers. Those officers’ retaliation claims, based on the Merit Board’s action, failed. 

Of course, the court addressed more than just retaliation. The court also considered a third officer’s claim of discrimination when he was placed on paid administrative leave pending a fitness-for-duty investigation arising from how he handles one particular situation. The court first determined that such paid administrative leave is not a materially adverse action. 

The court also rejected the officer’s discrimination claims based on “disproportionate” assignments to one, less desirable, campus rather than another. The court had little trouble dismissing this claim, particularly as the evidence showed the officers often requested assignment to the campus in question and that, in any event, the officers did not suffer a materially adverse employment action (change in compensation, etc.; reduced career prospects; or other negative change in the workplace). 

To me, however, the retaliation issue is the interesting part of the case. I believe it illustrates what is meant by not throwing stones in glass houses.