Education Due Process Hearings
(Revision of Sept. 25, 2000)
Prior to the enactment of the precursor to the IDEA in 1975, children with disabilities had no right to an education and their parents had no specific rights to insist on input about their child's education. Twenty-five yers later, "due process" has come to mean an amazing myriad of procedural safeguards which parents must successfully navigate to assist their children. This article will examine the basics of special education due process. It is not designed to be legal advice specific to any child's particular situation. Parents are encouraged to learn about their rights through publications, websites, and parent groups and to consult attorneys about their individual child.
What is Due Process?
The term "due process" comes from a long body of constitutional law in our country. The United States constitution requires that individuals may not lose certain "rights" without an ability to protest through a system of litigation. The "right" which children with disabilities have which is entitled to the protection of due process is the right to an education.
The right to an education for students with disabilities came to the forefront through two court cases that addressed the question of what constitutional rights applied. These cases were Pennsylvania Association for Retarded Children (PARC) v. Commonwealth of Pennsylvania and Mills v. Board of Education of the District of Columbia. These two cases recognized constitutional principles that have since been embodied in the Individuals with Disabilities Education Act. In PARC, mentally retarded children sued the state, claiming that they were denied the right to a public education. The suit was based upon three claims: (1) a violation of due process because there was no notice or hearing provided before retarded children were excluded from public education or their educational assignments were changed; (2) a violation of equal protection due to the lack of a rational basis for assuming that mentally retarded children were uneducable and untrainable; and (3) a violation of due process because it was arbitrary and capricious to deny mentally retarded children a right to the education guaranteed by state law.
The parties in PARC reached an agreement that basically provided that no child who was disabled could be assigned initially (or re-assigned) to either a regular or special educational status, or excluded from a public education without a prior recorded hearing before a special hearing officer. The PARC agreement defined the essence of the hearing process that we recognize still today: parents have the right to representation by counsel, to examine their child's records, to compel the attendance of school officials who may have relevant evidence to offer, to cross-examine witnesses testifying on behalf of school officials and to introduce evidence of their own.
The significance of Mills must and its relationship to the present system which prohibits outright exclusion of children with disabilities, despite behavioral problems, cannot be overstated. In Mills, parents of seven children of school age objected to their exclusion, suspension, expulsion, and reassignment without due process. Keep in mind the children in this case:
The Mills decree provided that no child was to be excluded unless the child was provided an adequate alternative educational service suited to the child's needs, and that each child was entitled to a free appropriate public education "regardless of the degree of the child's mental, physical or emotional disability or impairment." Further, under Mills, no child was to be excluded on the basis of "insufficient resources." Finally, Mills directly addressed disciplinary issues:
Mills serves as a foundation, even today, for the basic concept that disciplinary reasons cannot be used as an excuse to deny a child a free appropriate public education.
from the PARC and Mills case, Congress created the basics
of the due process system which we use today.
Defining the Right: The Essence - Procedures and Substance Equal Meaningful Access
Children with disabilities have the right to an education. What is this right? Congress originally sought "to assure that all handicapped children have available to them . . . a free appropriate public education which emphasizes special education and related services designed to meet their unique needs, [and] to assure that the rights of handicapped children and their parents or guardians are protected." 20 U.S.C. Sec. 1400(c). In the first case brought to the U.S. Supreme Court about special education, the Court explained that this right rests on asking two questions:
of Education v. Rowley, 458 U.S. at 206-07, 102 S.Ct. at 3050-51
The Act confers upon disabled students an "enforceable substantive right to public education in participating States . . . and conditions federal financial assistance upon a State's compliance with the substantive and procedural goals of the Act." Honig v. Doe, 108 S.Ct. 592, 597 (1988)."
From the earliest court cases to the most recent, the most concise explanation of the right to education is that a child with disabilities must have access to an education that is "meaningful." Cf., Education is "one of the most cherished and ardently protected of all rights. Indeed, 'education is perhaps the most important function of state and local governments.'" Jackson v. Franklin County School Bd., 806 F.2d 623, 627 (5th Cir.1986) (quoting Brown v. Board of Ed., 347 U.S. 483, 493, 74 S.Ct. 686, 691, 98 L.Ed. 873 (1954) with Cedar Rapids Community School District v. Garret F., (526 U.S. 66,119 S.Ct. 992, 1000 ), where the Court declared that "t]his case is about whether meaningful access to the public schools will be assured. . . . " In short, the right to an education must be more than trivial but is not always required to meet the standard of maximum benefit to the child.
How then can a parent access or insist that his or her child will receive a free appropriate public education?
Procedural Safeguards as the Key.
The IDEA contains a section of procedures that schools must follow when working with parents of children with disabilities. This section of procedures is often called "procedural safeguards." School districts have the responsibility to tell parents about these procedural safeguards.
The basic requirements of procedural safeguards are as follows:
Time lines and requirements for a child's identification, evaluation, IEP development and placement vary slightly from state to state. If you are uncertain of your child's rights, ask the school district special education director or your child's special education teacher for a copy of your procedural safeguards.
What is a Due Process Hearing?
The purpose of a due process hearing is to resolve a dispute between the parents of a child with disabilities and the school district. No one should "win" a due process hearing except the child. Unlike traditional litigation, in most cases due process hearings do not involve suing a school district for damages. Reimbursement for privately paid educational services to provide what the child needs when the school district will not provide such services is possible, however, and is not considered damages.
A due process hearing can be about any issue related to identification, evaluation, program or placement of a disabled child. Common examples for children with dyslexia would be: Should the child be identified as dyslexic? Must the district teach the child using a particular program of instruction such as Orton-Gillingham? Is the district responsible for the cost of private schooling that is specially designed to teach a child with dyslexia or other disabilities to read?
Due process hearings typically do not address whether a child has been discriminated against, if a child is entitled to monetary damages because of a physical injury suffered at school or whether a child has been the victim of a crime at school. This does not mean children do not have legal recourse in such instances but only that a different legal process is used.
What About Discipline and Due Process?
Children with disabilities have special rights in the situation of discipline in the school setting. Typical expulsion and suspension procedures apply but are modified in the manner in which they apply to students with disabilities. In 1997, Congress adopted a system known as "expedited hearings" to address exclusion or suspension of students with disabilities.
These "expedited hearings" are designed to address providing a child a free appropriate public education even when disciplinary matters are at issue. The specifics of expedited hearings vary by state. But, in its simplest form, expedited hearings decide three issues:
In most instances, if your child is facing an expedited hearing situation, it is best to consult with an experienced advocate or attorney. But the heart of the expedited hearing process hearkens back to Mills; the child cannot be left without educational programming while the child's misbehavior is addressed if the misbehavior is related to the child's disability. The child cannot simply be excluded from school without due process.
If a school district attempts to utilize a traditional expulsion approach with a disabled child, the parents should immediately seek information about their rights and their disabled child's rights under the IDEA. In many instances, expulsion cannot proceed in the typical fashion as it would for a non-disabled child.
The Mechanics of Traditional Due Process.
A parent or a school district can initiate a due process hearing by sending a letter. Parents send the letter to the school district. Districts must notify the parent. In the case of the parent, the federal law requires that a parent provide the district the following information:
Each state must have in place procedures about how due process hearings will be commenced, held and resolved in a timely and fair manner. These state procedures are guided by the following federal requirements:
A Word About Hearing Officers.
School districts and state educational agencies must each keep a list of hearing officers who will serve as "judges" for a due process hearing. The hearing officer list must be a public list. In most states, parents can obtain this list from their state education department. The reason that it is critical to have this list is to ensure that hearing officers are selected through some fair process. In addition, hearing officers must be trained in special education law and some states update their list regularly to reflect which hearing officers have attended special training.
Hearing officers are not, in most cases, judges. Some states require hearing officers to be attorneys but there is no federal requirement that hearing officers be attorneys.
Hearing officers are paid to hear the case either by the state agency or the school district. The fact that a hearing officer is paid by the state agency or district does not create a bias in favor of the school district. Hearing officers must, however, be impartial and certain standards apply through case law and state laws on what "impartial" means.
What Happens After Due Process?
After a due process hearing decision is rendered, the district must implement the decision unless a court permits the district not to do so. The IDEA does not set a specific time limit within which a due process hearing decision must be implemented or an appeal of a hearing decision must be filed. When parents prevail through the administrative process and the LEA (or appropriate government agency) does not intend to appeal, the public agency must implement the hearing decision "as soon as possible and, in any event, within a reasonable period of time." If the public agency fails to implement the hearing decision, parents may seek court enforcement of an administrative decision. If the hearing officer's decision is not appealed, it is in force.
In addition to the due process procedures required by the IDEA, LEAs may offer the use of mediation procedures as an alternative for resolving disputes concerning the identification, evaluation and educational placement of students with disabilities and the provision of a FAPE to those students. Mediation can be used to reach an agreement without the expense and stress of a due process hearing. If the LEA and parents reach a mediated agreement, that agreement becomes binding on both parties.
In some states, parents cannot bring an attorney or professional advocate to the mediation session. This does not preclude the parent from meeting with an attorney or advocate to prepare ahead of time for the mediation session and it is wise to do so. When parents choose not to use the mediation process, a district can establish procedures to require parents to meet with a contracted-for disinterested party, for the purpose of encouraging the use (and explaining the benefits) of the mediation process to the parents. But, participation in mediation or any other form of dispute resolution cannot be used to either "deny" or to "delay" a parent's right to a due process hearing. Even if mediation is initially selected, parents can terminate the mediation procedures at any time and proceed to a due process hearing. Any discussions during the mediation process are confidential and may not be used as evidence in a hearing or court. Parents should keep in mind that dispute resolution can be used after a due process hearing as well as before a due process hearing.
Why Use Due Process?
It is this author's opinion that due process is best used by parents frequently rather than infrequently. Requesting a due process hearing or mediation can often solve an immediate problem rather than allowing the tension and stress between the parties to build up over many years only to explode many years down the road. There is not a limit on the number of due process hearings or mediations a parent may request. While parents must be careful to ensure that they are requesting a hearing or mediation over an important issue for their child, parents should not be afraid to use due process.
Sometimes parents think that they must be in great dispute over the child's entire education in order to request due process or mediation. The wise parent brings a significant dispute about any part of the child's program through this process in a prompt fashion so that memories of the dispute are fresh and the possibility of resolution is greater.
Parents often are afraid to bring a request for a hearing or mediation because they feel that this will be seen in a negative light by the district and their child will suffer. If parents act professionally in the manner in which they address disputes, and expect the same of school personnel, the child will often benefit from resolution of a dispute using the due process system.
Remember, due process safeguards are there for a reason - use them!
Suggested Readings and Ideas.
Many times IEP meetings can be overwhelming for parents. Some good books to help you "learn the language" that might be used at an IEP meeting are: "Better IEPs" by Barbara Bateman; "Win-Win IEPs for Children with Autism," by Beth Fouse; and "The Treasure Chest" by Fouse ( a wonderful book about what behavioral techniques really mean); The Dyslexic Scholar by Taylor.
One very important suggestion is to find out whether your state educational agency has a website and to read it. Many times you can learn what the "hot topics" are and avoid problems. Another good idea is to check out your district's website for information about special education.
Finally, and DO NOT UNDERESTIMATE THE IMPORTANCE OF THIS: READ AND RE-READ the Notice of Procedural Safeguards you are given. If you do not understand how it applies to the situation you are facing, ask the district and put that request in writing.
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