Secret agreements in special education

An investigative reporter for the NPR member station in Indianapolis explains how to cover Hollywood-style nondisclosure agreements that special education parents are sometimes required to sign to get services for their children.

By Lee Gaines, WFYI Indianapolis investigative reporter

I was shocked the first time I heard a parent say they were forbidden from talking about their special education settlement because of a non-disclosure agreement.

An NDA? In public education?

It happened shortly after I was hired by WFYI Indianapolis Public Radio in April 2021.

This parent is a special education advocate. In other words, someone who isn’t afraid to testify in front of lawmakers and school board members. But she was too scared to share the details of a settlement agreement with her child’s relatively affluent and well-regarded school district. Because she’s under an NDA, she fears the school would take her to court if they suspected she shared any details about her settlement.

One of two investigative reporters on the WFYI education team, I knew I needed to report on this. If I didn’t know about the use of NDAs in special education conflicts, chances are the general public didn’t either.

If I didn’t know about the use of NDAs in special education conflicts, chances are the general public didn’t either.

Emerging evidence suggests students with disabilities are disproportionately affected by the COVID-19 pandemic.

Plus, it’s a subset of the education beat that is, in my opinion, under-covered.

What I didn’t expect was that non-disclosure agreements – the kind you hear about in Hollywood scandals – would turn out of be a big part of how districts limit parents’ ability to speak openly about their fight for appropriate special education services. In conversations with families of students with disabilities, conflicts over special education services came up again and again.

When parents and schools disagree over what special education services a school should provide (or even determining who is eligible for special education at all) they can request something called a due process hearing.

A due process hearing is kind of like a lawsuit; the family and the school present their respective cases in front of an independent hearing officer. They provide evidence and witness testimony. These proceedings can take days or even weeks and they’re also incredibly expensive for families and schools.

In Indiana, few requests for due process culminate in a hearing. Most of these requests are settled behind closed doors. One big reason is money. Another is transparency.

While due process decisions are posted on the Indiana Department of Education’s website (with names and other identifying information redacted), settlement agreements are not maintained or tracked by the state’s DOE. The public has no idea what special education services and/or financial reimbursement the school ultimately agreed to provide the family.

The public has no idea what special education services and/or financial reimbursement the school ultimately agreed to provide the family.

Additionally, I discovered that many of these settlement agreements contain NDAs.

Because of these clauses, parents with special education settlement agreements are scared to talk to me. They fear retaliatory legal action from their school districts.

I spoke with multiple special education attorneys, advocates, and experts who said schools frequently request NDAs or confidentiality agreements as a condition of a special education settlement.

It’s an approach that protects districts that fear being inundated with due process requests from parents who want costly – if appropriate – special education services for their children.

But it also prevents parents from talking to other parents of children with disabilities about their experience. And it leaves families in fear that a school district may take legal action against them for a perceived violation of the clause.

It’s an approach that protects districts that fear being inundated with due process requests from parents who want costly – if appropriate – special education services for their children.

From a reporter’s perspective, I was perplexed and frustrated that the contents of these settlement agreements were hidden from view.

Even if these are public records, there is no statewide or national database that tracks settlements agreements. They have to be requested from individual school districts.

My editor, Eric Weddle, and I wanted to report on the NDA issue. We thought it was crazy. But we weren’t sure how to tell the story.

Earlier this year we got our news peg. An advocacy organization, the Arc of Indiana, and the legal group, Indiana Disability Rights, worked with a state lawmaker to craft legislation that would bar schools from requiring NDAs as a condition of a settlement agreement.

The legislation was key. We couldn’t tell this story without including the voice of a parent who was under an NDA.

I contacted multiple attorneys to ask if they could put me in touch with a parent who had agreed to an NDA and was willing to talk about their experience. Most declined to connect me with any of their clients. But I found one parent attorney who was excited about the story. He thought NDAs were a major problem, and he connected me with a client who was upset that in order to get the services she felt her daughter needed, she had to keep it a secret forever.

I spoke with the parent, Karla, by phone and then we met in person. Karla’s daughter had been diagnosed with an auditory processing disorder, among other conditions. She had an individualized education program (IEP), but Karla said she’d failed to make significant progress. In fifth grade, she still couldn’t read.

Karla paid thousands of dollars to have her daughter evaluated by a neuropsychologist. The neuropsychologist performed a special type of IQ test for people with auditory processing disorders. Karla’s daughter scored a 91 – nearly 50 points higher than what the school found in its own IQ testing.

She took the report from her neuropsychologist to the school. She asked for services like a one-to-one paraprofessional and a specific type of reading instruction. She said the school refused. So Karla hired a lawyer and they requested a due process hearing. Karla settled with the district before her case reached the hearing stage. And the settlement included an NDA. That means Karla can’t disclose what services the school district agreed to provide her daughter. She fears devastating financial repercussions if the school took her family to court over a violation of her NDA.

We agreed to identify Karla by her first name only. And we never named her daughter. Karla feared what her school district might do if they knew she had spoken to a reporter.

We agreed to identify Karla by her first name only. And we never named her daughter. Karla feared what her school district might do if they knew she had spoken to a reporter.

We also needed the school district’s point of view.

I found a special education administrator who was willing to talk candidly about why schools request NDAs.

Essentially, she told me, they fear that if parents tell other parents what they got in their settlement agreement, the number of due process requests will increase. The federal Individuals with Disabilities Education Act (IDEA) mandates that schools provide students with disabilities with a free appropriate public education. The special education administrator I spoke with said parents don’t just want “appropriate” special education services; they want the best services for their children.

Sometimes, she said, it’s easier to give families more than what they’re entitled to under the law via a settlement agreement than it is to go to a hearing.
In exchange, schools will often require parents not to talk about the services they received under their settlement. Like many special education administrators I’ve spoken with, she said the bigger problem is that IDEA has never been fully funded by Congress. Until that happens, she said it’s impossible for schools to provide the best possible special education services to every student.

In exchange, schools will often require parents not to talk about the services they received under their settlement.

So far, we’ve published one big investigation and a follow-up story about the fate of the legislation. The bill that included the ban on NDAs and would have created a statewide database of settlements died in March after a unanimous Senate vote against it. Even the senate sponsor was heckled to change his vote from a yes to a no.

You can find our investigation here.
And the follow-up here.

This legislation came up against tremendous opposition from both special education administrators and school superintendents. They opposed both the NDA ban and language that would have shifted the burden of proof in certain due process cases from parents to schools. And so, for the time being at least, Hollywood-style NDAs will still be allowed in Indiana.

Thus far, I’ve seen very little reporting that tackles this issue. But since we’ve published, I’ve heard from parents across the country who are thrilled to see their experiences reflected in the media. Every legal expert I spoke to told me that NDAs aren’t just an Indiana thing, they’re common in special education settlements across the country.

I’m hoping that there will be much more coverage in the near future.

Since we’ve published, I’ve heard from parents across the country who are thrilled to see their experiences reflected in the media. I’m hoping that there will be much more coverage in the near future.

Trust, consent, & persistence: Keys to covering special education NDAs

Throughout the reporting process, my utmost concern was for Karla and protecting her family from any retaliation or blowback that could result from my reporting. Karla was extraordinarily brave for talking to me.

Consent was key here. Everything that went into the story regarding her family’s personal experience was first vetted with Karla.

Trust is a delicate thing and it can be easily broken. But Karla also made my job easy because she wanted to tell this story.

Another thing I learned from talking to both legal experts and the public access counselor for Indiana: settlement agreements are likely public records. I mean, after all, public schools are taxpayer funded entities

I suggest submitting public records requests from the districts you cover to see what you can find.

In late December 2021, I sent requests to four school districts and one special education cooperative.

I initially asked for five years’ worth of settlement agreements. I received a few responses suggesting that time period was too broad.

So I narrowed my request to one year: the 2020-21 school year. Several school districts told me they had no responsive records for that year, while another district said they had four settlement agreements that they needed to vet for information that should be redacted.

So far, two school districts have provided me with several heavily redacted settlement agreements from the last school year. All include NDA clauses.
Indiana doesn’t have the best public records laws, in my opinion, so it’s a matter of continually following up.

And, finally, special education is complicated. Don’t get discouraged if the information you dig up is confusing or chock full of legal jargon. Ask advocates and legal experts to help you untangle it. And if navigating special education law and conflicts is confusing to you — imagine how challenging it is for parents and guardians who are not reporters.

I try to remember the kids that are at the heart of these disputes. They’re legally entitled to a free, appropriate public education, and it’s our job as journalists to shine a light on the problems that plague a system intended to educate many of the most vulnerable students.

Lee Gaines is an investigative education reporter for WFYI, the NPR member station in Indianapolis. Her work has been heard on multiple national broadcasts, including All Things Considered, Morning Edition and Here & Now. She is the recipient of numerous journalism awards, including a regional Edward R. Murrow award and the 2020 award for best nationally edited feature from the Public Media Journalists Association. You can read her recent work here, and follow her on Twitter.