Critique of Ohio Due Process Decisions in Special Education Cases

To:  Monica Drvota

From:  Ruth Colker[1]

Re: Ohio IHO and SLRO Opinions in Special Education Cases

Date: July 25, 2012

The purpose of this memorandum is to summarize some problems I have observed in the due process decisions rendered by Ohio Independent Hearing Officers (“IHO”) and State Law Review Officers (“SLRO”) in special education cases.   By bringing these matters to the attention of the Ohio Department of Education, I hope to assist in the increased professionalization of the office and help make the due process decisions more accessible[2] and useful to the public.

The problems include:

  • presentation of cases in the on-line database in ways that limit the ability of parents and practitioners to be aware of final outcomes,
  • writing of opinions in ways that makes it hard to understand the result and reasoning, and
  • substantive outcomes that are sometimes inconsistent with the rules that apply to these cases; this problem is particularly troublesome when parents and child are not represented by outside counsel.


I. Problems

A. Due Process Database

The State of Ohio has a database that contains Due Process decisions.[3]   This database is inconsistent and unsystematic with respect to the scope of what it includes and whether it includes court cases.

The database begins with an IHO 1996 decision from the Bexley School District, marked as SE-XXXX-1996.   That case ultimately was appealed to the Sixth Circuit.  See Knable v. Bexley City School District, 238 F.3d 755 (6th Cir. 2001).  Like all cases that were appealed, there is no reference or link to the appeal in the database.  The failure to include links or references to appeals can cause the results in the database to mislead both parents and others as to the precedential value of the IHO decision.  I recommend a link for any IHO decision that is appealed to a SLRO or federal court.

After the 1996 IHO decision in the Bexley case, the next case in the database is dated 2002.  Until 2009, there is inconsistent inclusion of court cases in the database and unreliable links for those that are present.   There is a 2003 Elida School District decision (with no active link) and a 2003 Kings Local School District case.  Later in the database, there is another reference to the Elida School District decision with an active link.  There are no more court decisions until 2006 when there are two links to cases involving the Parma School District. Neither link appears to work, however.  In 2007, there is another link to the Parma School District (the Winkelman Supreme Court decision).  The next reference to a court decision is a 2007 Sixth Circuit case against the Sylvania School District.  The database includes several other cases against the Sylvania School District; there is no easy way to figure out which are the predecessors to this Sixth Circuit decision (nor whether any of them are a subsequent remand).  There are two district court cases involving cases against the Woodmore Local School District.  That case was appealed to the Sixth Circuit.  See P.R. v. Woodmore Local School District, 2007 WL 4163857 (6th Cir. 2007) yet the Sixth Circuit appeal does not appear to be in the database.  The most recent court decision listed on the database is from 2009, against Switzerland of Ohio.  That court decision required further proceedings but there is no link to those subsequent developments.  I believe there are about 30 district court or appellate cases not included in the Department’s database that were decided between 2002 and 2012 – the apparent scope of the Department’s database.

The Department’s database has deleted identifying information about students even when the decisions are federal cases.  I assume that the Department has done so for FERPA reasons.  When a case is appealed to federal court, however, the published federal court record typically includes the full information.  I recommend that the Department include the same text as the federal court.  Cases with extensive white outs are difficult to read and understand.

B. Writing of Opinions

Each IHO and SLRO uses a different style of opinion writing and it is often hard to follow the opinion and determine the outcome.  I will critique the most recent decision in the database — SE-2645-2011– to give a general sense of the problems that I typically find in the writing of the opinions.  I am using this opinion as an example because it is typical, not because it is atypical.

This 55-page IHO opinion does not state at the outset whether the hearing officer is ruling for or against the parent.  There are numerous white outs of material other than the student’s name.  It appears that the hearing officer felt the need to delete the names of any teachers but not replace them with generic labels such as “Speech Language Pathologist.”  Years and dates are haphazardly listed or deleted.  Details like the number of weeks of therapy are deleted.

The discussion of the “law” is also difficult to follow.  Beginning on page 32, the hearing officer seems to cut and paste from various sources to summarize the relevant legal requirements.   When the IHO discusses the Rowley decision (pages 32-33), there are odd keystrokes as if the IHO was using incompatible software when cutting and pasting the decision.  The odd keystrokes make it difficult to follow the discussion.

The legal discussion also does not always use complete, grammatically correct sentences.  At the bottom of page 33, the opinion starts with an incomplete sentence, reading “In Deal at pgs. 862-863.”  There is then a sentence stating that the Sixth Circuit agrees with the Third Circuit but the quote that then follows (to support this sentence) never provides a cite to any Third Circuit decision.  While describing the law, the opinion also establishes its conclusion.  On page 34, the IHO states that the child’s IEPs were adequate at the same time as she recites the statutory requirements for an IEP. It is confusing for rule application to be interspersed with the statement of the rule (especially since a later section of the opinion applies the law to the facts).

Further, the presentation of the statutory law and case law is confusing. Because the IDEA has been repeatedly amended, it is helpful to start with the current statutory language and then any case law that interprets the existing statutory language.  For example, on page 35, the IHO discusses the rules about when hearing officers should issue remedies for procedural violations. Those rules have changed a lot over the years.  Nonetheless, the hearing officer first discusses cases from the 1990’s and then moves on to a listing of the codified rules from 2004 although some of those cases may no longer be valid in light of the 1997 and 2004 amendments to the IDEA.

The discussion of the relevant legal issues is also somewhat haphazard in organization.  It is typical for courts that consider special education cases to begin with the legal issue of who has the burden of proof because all the testimony has to be considered through that lens.  This hearing officer does not get to the issue of burden of proof until page 37.  As the hearing officer notes, the United States Supreme Court has resolved this issue.  Therefore, there is no reason to have extensive discussion of Sixth Circuit case law that preceded the Supreme Court’s decision on this issue in 2005.

After the statement of the law, the organization of the opinion is difficult to follow.  There is a discussion of three separate issues (with discussions of both law and facts) and then there is a heading:  Argument-Discussion-Conclusions.   Although this section had a header that included the word “conclusion,” it does not fully state the decision of the hearing officer.  Instead, that is stated in the final section marked “Decision.”

I recommend that the state of Ohio adopt a template for IHO and SLRO decisions so that the reader can easily follow them.  An organization that has proven successful in other jurisdictions consists of a brief summary of the outcome, a statement of the issues, a statement of the facts, a statement of the relevant law, an application of the law to the facts, and a conclusion for each issue raised by the parties.  I have noticed that district courts sometimes criticize hearing officers for not deciding all the issues before them when they reverse or remand SLRO decisions.  Clearer organization guidelines could help solve that problem.   In addition, a clearer delineation of the resolution of each issue would also assist discussions about attorney fees between the parties, following issuance of the IHO or SLRO opinion.  Other states and some federal agencies use such templates and find that they improve the quality of opinions and help reduce errors.

C. Substantive Outcomes

I do not know what procedures are in place to discuss decisions that are reversed in order to learn from errors that have been made.   Two SLRO decisions (that I know of) have been reversed in the last couple of years by district courts: B.H. v. West Clermont Board of Education, 788 F. Supp.2d 682 (S.D. OH 2011) and Jackson v. Northwest Local School District, 2010 WL 3452333 (S.D. OH 2010).

In B.H. v. West Clermont Board of Education, a case about a child whose behavior management program was unduly punitive as well as too complicated for someone with her cognitive capacity to understand, the district court stated:  “SLRO opinion is without any evidentiary or legal support and contains virtually no references to the record.”[4]  The key error made by the SLRO was a failure to consider both academic and functional advances in deciding whether a child was receiving a FAPE in a case where the school district was found to have used restraints unnecessarily in a punitive fashion while the student’s behavior regressed markedly.  I have read about 500 hearing officer decisions in various states in the last year while writing my book, Disabled Education, and that is the most critical statement I have ever seen from a federal judge in reference to a hearing officer opinion.  This case was unusual in that the SLRO reversed the IHO and the district court judge essentially reinstated the IHO decision.  There appear to be five or so other cases in which the SLRO reversed the IHO (two of which also involved this SLRO).  As far as I know, the other cases were not appealed.  I have not reviewed the other cases to try to determine if they were correctly decided by the SLRO.

The other case that was reversed — Jackson v. Northwest Local School District — is also an unusual case in that the parent managed to prevail in this pro se case.   One of the issues in the case was whether the district should have had to conduct a manifestation review before suspending the child from school.  The statutory language on this issue is quite clear.   A manifestation hearing is necessary if the school can be “deemed to have knowledge of the child’s disability.” See 20 U.S.C. § 1415(k)(5)(A)&(B).  In this case, before the incident that triggered the suspension occurred, the school district had already told the parent that the child should see an outside mental health agency and, after the incident, could not return to school until receiving clearance from a psychologist.   The school district clearly suspected the child was disabled before suspending the child; the SLRO missed the application of this statutory provision.  Somehow, the pro se parent found this language and brought it to the attention of the district court on appeal.  An SLRO should not be making this kind of plain legal error and it suggests that some review or training should be made available to all hearing officers on the rules surrounding a right to manifestation determinations.

In these two cases, the errors are clear and were reversed on appeal.   I found two other recent cases that have not yet been reversed on appeal but which are troubling.   In SE 2223-2009, a case against the Sylvania School District, the IHO found that procedural errors had occurred while the school district failed to identify the student as disabled for several years but the errors were not sufficient to cause substantive harm and thereby entitle the child to relief.  This fact pattern is a classic example of a district relying on a “response to intervention” program as a basis for delaying a very evidently needed evaluation.  It was clearly contrary to the January 21, 2011 OSEP guidance stating that the response to intervention process should not be used as a way to delay appropriate intervention.[5]  Further, the “mentor” that was provided to the child in this case cannot possibly be considered equivalent to the kind of intensive intervention delivered by an appropriately trained teacher that one would expect to find under a proper IEP.  This case was not appealed, I understand, because the child moved to another school district.  At this point, an evidently misleading precedent, directly contrary to published OSEP guidance, has been left standing.  It concerns me that the Sylvania School District, and anyone else reading this opinion, believes that the school district treated this child in a way that is legally acceptable.

Similarly, I am concerned about the IHO and SLRO decisions reached in Gibson v. Forest Hills Local School District, 2012 WL 1197896 (S.D. OH 2012).  This case is currently on appeal and I expect the district court will reverse the SLRO decision because the case does not appear to be consistent with any legal rule that I understand exists under the IDEA.  The hearing officers appeared to conclude the child was provided FAPE but nonetheless ordered changes in the IEP for the future because, in fact, the child was not provided FAPE.  Although appellate decisions cannot be predicted with certainty, I suspect the district court opinion will correct that legal position that cannot be supported in the law.  If so, I hope this case is discussed at a future training session so that the hearing officers will learn from these errors.

In reading over a hundred OHI and SLRO opinions, I have concluded that hearing officers would benefit from a training session that went back to many of the basic elements of the statute as well as some of the landmark decisions.  These issues and cases include:

  • rules for invoking a school district’s “child find” obligation especially in light of the movement towards RTI,
  • rules for determining when and whether a manifestation review is required,
  • rules for determining whether a school districts’ evaluations are “appropriate” so that an Independent Educational Evaluation is not required, with particular attention to developments in the field of educational psychology,
  • rules for determining whether procedural violations result in harm so that relief is appropriate,
  • Supreme Court’s decision in Schaffer v. Weast, and
  • Supreme Court’s decision in Rowley and the continued vitality of that decision after the 2004 IDEA Amendments.

II. Solutions

In light of the problems I identified above, I recommend that:

  • the Ohio Department of Education investigate how to increase the usefulness, completeness and accuracy of its database by providing links to appealed decisions and, if possible, make the cases word searchable,
  • provide a model or template for opinions to provide more consistency among opinions,
  • provide proofreading and editing assistance for authors of opinions,
  • increase the training on important rules of law and landmark cases that are cited repeatedly in IDEA decisions , and
  • focus training on decisions by IHOs or SLROs that have been affirmed or reversed on appeal.

III. Conclusion

The Individuals with Disabilities Education Act is an enormously complicated, changing statute.  When I co-authored a set of teaching materials on this statute, which are used in clinics throughout the country, I found it necessary to work with eight co-authors who specialized in various subtopics under the statute.[6]  Ohio hearing officers often write no more than one decision per year so it is understandably difficult for them to stay current on this statute and how to write a high quality opinion with the level of assistance they currently receive.

Parents of children with disabilities rarely come into a due process hearing on an equal footing with school districts and their lawyers.  Thus, when the Supreme Court decided in 2005 to place the burden of proof on parents in IDEA cases (when they were the moving party), it simultaneously directed hearing officers to run hearings in such a way as to safeguard the important constitutional and statutory right of children to receive a free and adequate public education.  The SupremeCourt said:

IDEA hearings are deliberately informal and intended to give ALJs the flexibility that they need to ensure that each side can fairly present its evidence.  IDEA, in fact, requires state authorities to organize hearings in a way that guarantees parents and children [IDEA’s] procedural protections …. They are not left to challenge the government without a realistic opportunity to access the necessary evidence, or without an expert with the firepower to match the opposition.[7]

I fear that parents in Ohio are not always able to access their full set of “procedural protections” or have sufficient “firepower to match the opposition” due to inadequate training of hearing officers.

Congress has repeatedly raised the standards for the education that school districts are supposed to provide all children, including children with disabilities.  The IDEA Findings indicate school districts should “hav[e] high expectations for such children and ensur[e] their access to the general education curriculum in the regular classroom, to the maximum extent possible”[8]  The Department of Education regulations provide that children can be classified as disabled and therefore entitled to a FAPE “even though they are advancing from grade to grade”[9]  Because many parents proceed pro se in these cases, it is crucial that hearing officers are making sure that the rights of children are protected in Ohio.  Decisions, such as some of the ones I discussed above, bring into question whether school districts are being required to meet those high standards in Ohio.

I would be happy to speak to Ohio hearing officers at a training session if I can be of any further assistance in the future.  I hope these comments are helpful and constructive.


[1] Distinguished University Professor and Heck-Faust Memorial Chair in Constitutional Law, Moritz College of Law, The Ohio State University.

[2] I also hope that the online database, like all material available to the public on a state-run website, is accessible to those with visual and other impairments although I do not specifically discuss those kinds of accessibility problems in this memo.

[3] See

[4] B.H. v. West Clermont Board of Education, 788 F. Supp.2d 682, 697 (S.D. OH 2011).

[5] See

[6] See Ruth Colker & Julie K. Waterstone, Special Education Advocacy (2011).

[7] Schaffer v. Weast, 546 U.S. 49, 61 (2005)(citations omitted).

[8] 20 U.S.C. § 1400(c)(5)(A).

[9] 34 C.F.R. § 300.111(c)(2).