Overview
During the course of our audit, we heard from multiple stakeholders who expressed concerns about the use of non-disclosure, non-disparagement, or similarly restrictive clauses in special education settlement agreements. These clauses, often included in agreements between caregivers and school districts, prohibit caregivers from discussing the terms of their settlements with other caregivers, in special education advisory councils, or in any other way that could make the terms of these agreements publicly known. A Boston Globe article published on November 12, 202414 highlighted the widespread and inconsistent use of these agreements by showing significant variation in settlement values (e.g., tuition reimbursements) across school districts. This raises questions of equity and consistency in how school districts resolve special education disputes.
In response to these concerns, and as part of our audit, we asked the Department of Elementary and Secondary Education (DESE) to clarify its role in overseeing these agreements. We found that DESE does not collect or monitor data on settlement agreements or on the use of non-disclosure, non-disparagement, or similarly restrictive clauses. As a result, DESE has no visibility into the frequency or content of such agreements, nor the systemic issues they may cover up. This lack of oversight significantly impacts DESE’s ability to assess compliance with federal and state special education laws, monitor equitable treatment across school districts, or identify reoccurring issues that might warrant further investigation.
The use of non-disclosure, non-disparagement, or similarly restrictive clauses also limits caregivers’ abilities to share information and support one another. Caregivers who are unable to speak openly about their experiences are isolated from peer networks and advocacy groups, making it more difficult to navigate the special education system or recognize when systemic issues occur. This isolation can leave caregivers with no choice but to rely on attorneys or paid advocates to understand their rights and options, a process that can be expensive and inaccessible for many. These dynamics can create an inequitable environment in which access to fair outcomes may depend more on a caregiver’s financial resources than on the merits of their child’s educational needs.
Without appropriate oversight or data collection, DESE assumes a higher-than-acceptable risk that non-disclosure, non-disparagement, or similarly restrictive clauses could be used to resolve individual disputes while allowing systemic failures to persist. The lack of transparency inherently caused by non-disclosure, non-disparagement, or similarly restrictive clauses limits accountability to the public and undermines the principles of equity and access that are fundamental to public education.
To improve transparency and accountability in the handling of special education disputes, we strongly recommend that DESE develop, document, and implement oversight mechanisms and data collection regarding settlement agreements. This will allow DESE to monitor the use of non-disclosure, non-disparagement, or similarly restrictive clauses and identify any emerging patterns or systemic issues that may require further investigation. Specifically, we recommend the following:
- DESE should require that school districts report key information about special education settlement agreements, including the use of non-disclosure, non-disparagement, or similarly restrictive clauses.
- DESE should use collected data to identify trends related to the use of non-disclosure, non-disparagement, or similarly restrictive clauses; the frequency of settlements; and any disparities across school districts. This will help DESE assess whether there are systemic issues or inequities that need to be addressed.
- As part of its annual public reporting on special education dispute resolution, DESE should publish aggregated data on settlements, including the use of non-disclosure, non-disparagement, or similarly restrictive clauses. This transparency would provide the public with critical insight into the nature of special education dispute resolution and promote greater school district accountability.
Auditee’s Response
DESE’s educational vision includes that students with disabilities receive carefully designed instruction that accelerates their growth towards learning goals. DESE appreciates the recommendations made in the Auditor’s Report as to Matter 1 and will issue a reminder to school districts at the start of this school year about Champa v. Weston Public Schools, 473 Mass. 86 (2015). In Massachusetts, settlement agreements between a school district and the parents of a student who is eligible for special education services under the [Individuals with Disabilities Education Act (IDEA)] are public records once stripped of all personally identifiable information. See Champa v. Weston Public Schools, 473 Mass. 86 (2015). While these agreements are considered “education records” under [the Family Educational Rights and Privacy Act] and federal and Massachusetts special educational law protect the confidentiality of the education records of students with disabilities who receive special education services, records relating to students are not confidential once all personally identifiable information is removed. Id.6
As part of its general supervision duties under IDEA Part B, DESE collects data from the Bureau of Special Education Appeals regarding the percentage of mediations that result in written agreements, as required by the U.S. Department of Education.
It is important to note that there is no federal or state law or regulation that specifically requires DESE to oversee the “use” of special education settlement agreements by school districts, including any use of non-disclosure, non-disparagement, or similarly restrictive clauses in such agreements. In addition, there is no federal or state law or regulation that requires DESE to collect data regarding any use by school districts of the types of clauses referenced in the Auditor’s Report. In making its recommendations, the Auditor’s Report does not cite any legal obligation DESE has failed to perform. DESE is not a party to the special education settlement agreements referenced in the Auditor’s Report and has not, and will not, enter into any special education settlement agreements that contain the types of clauses referenced in the Auditor’s Report.
[Footnote:]
6. As the Massachusetts Supreme Judicial Court explained, “[a]lthough the agreement may have served as a private settlement of a dispute between the school district and one of the families living in the school district, the fact that the school district and the family contractually agreed to keep the settlement private cannot, by itself, trump the public records law and the school district’s obligation to comply with the law’s requirements.” Id. at 98.
Auditor’s Reply
In its response, DESE stated that it will remind districts that settlement agreements, once stripped of personally identifiable information, are public records. However, this step alone does not establish a mechanism for statewide monitoring of the use of these settlement agreements, nor does it ensure that patterns involving restrictive clauses are visible to caregivers, advocates, or policymakers. As noted above, without a coordinated effort to collect and analyze data related to these settlement agreements, concerning trends may go undetected. This issue highlights the need for a more structured and proactive approach to track and evaluate the use of special education settlement agreements, including the use of non-disclosure, non-disparagement, or similarly restrictive clauses across school districts.
We are aware that DESE is not legally required to oversee or collect data on these settlement agreements but raised this issue as an “Other Matter” since DESE does have oversight responsibility as the Commonwealth’s sole agency charged with ensuring that school districts comply with the Individuals with Disabilities Education Act and Massachusetts special education laws. Increasing transparency and accountability through stronger oversight of the use of settlement agreements including the use of non‑disclosure, non-disparagement, or similarly restrictive clauses is essential. Such oversight is critical to maintaining public trust, promoting equitable access to special education services, and ensuring that school districts are held accountable regarding fair and consistent practices. Therefore, DESE should take stronger, more proactive measures to ensure effective oversight of special education settlement agreements. This approach would enable DESE to identify trends, provide targeted guidance, and intervene when necessary.
We strongly encourage DESE to implement our recommendations regarding this matter. As part of our post-audit review process, we will follow up on this matter in approximately six months.
| Date published: | August 26, 2025 |
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