Tara Murphy is a SPAN Resource Parent, a Volunteer Advocacy Ambassador for Autism Speaks, member of the Council of Parent Attorneys and Advocates (COPAA), founder of Parenting Frontier, and the mother of two children diagnosed with developmental disabilities. 

Why do parents of students with disabilities so frequently lose cases when they appear  before  New Jersey Administrative law judges? Why do school districts seem to have the upper hand when students’ rights to a free and appropriate public education is on the line? And what should parents do about this trend?

Just look at the scorecard for families vs. school districts in 2022:  NJ school districts won 82% of their cases and parents won only 18% of their cases:

• 105 cases decided
• District won 86.5 cases, or 82%
• Parents won 18.5, or 18%

Are due process hearings winnable for parents anymore? Here are four reasons why parents of students with disabilities are not getting a fair shake from the State of New Jersey:

Judges Want to Impress the Governor:

The NJ Administrative law judges have been working hard to impress the governor.

After all, decisions favoring the districts are a positive reflection on the state Department of Education and therefore will please the governor.  The governor appoints judges, so an administrative law judge who is waiting in the wings for a promotion to Superior court will have those state-leaning decisions in their portfolio.

Districts Have the Upper Hand with Specialists:

 With errors and omissions insurance and school districts using staff as expert witnesses, we parents are not prevailing often.  No one oversees district behaviorists or other specialists to ensure their evaluations are accurate.

The State Violates TImelines:

Cases are still exceeding the 45 day rule.  In fact, in C.P., et. al. v. N.J. Dept. of Education, the class action lawsuit against the DOE for violating this time limit on resolving due process cases is still unresolved since being filed in 2019!  It proves the point that the legal system has failed to enforce the Individuals with Disabilities Act and continues to fail parents seeking special education remedies.

Cases still languish for about a year at least, putting strain on families.

Parents Can’t Afford the Costs:

Parents will need expert witnesses to support their case before an OAL judge like behaviorists, learning disabilities consultants, speech pathologists and reading specialists, which will cost families between two and six thousand dollars per expert.  Districts usually bring as many experts as they have on their payroll.

Where Does This Leave Families? Should we avoid this aggravation and withdraw our children from school?

 Homeschooling among the special education population has increased since 2020.  Since that time, many certified teachers, behavioral professionals, speech and language professionals have quit the public school system and gone private, giving parents more options for individualized help for their child at home.  For social interaction there are online schools and more regional pods than ever before.  Parents of teens may consider that their child doesn’t need a high school diploma in order to be accepted to some colleges and universities.  Besides, there’s the GED and going the route of other equivalency tests.

What should we do?  Maybe it’s time to skip the lawsuits and save our money for private tutors and therapists.  Why pay attorneys who cost an average of $400/hour if the odds of winning are so slim?

Finally, parents fear that by going to due process they will suffer  retaliation by district personnel, who are rarely held accountable for this.  State complaints are routinely dismissed without investigation.  The state’s handling of special education cases is a factor in parents’ decisions to withdraw their children from this dysfunctional system.  When you also factor in poor academic performance and bullying, the best and most cost-effective option could be to homeschool your child.