Due Process - Special Education
Procedure for Due Process and Special Education Complaints
In a perfect world, parents and teachers are able to resolve issues surrounding a child’s education through conversations and open dialogue. However, in some cases, issues concerning special education may leave parents with no option other than taking a more official route — this is where due process in special education cases comes in.
Is your child eligible for special education?
The Individuals with Disabilities Act (IDEA) was passed by Congress in order to secure free, individualized education for children with disabilities. In the event that parents are having trouble securing such care, IDEA outlines a process to resolve disputes that may arise. Due process in special education cases can often be a lengthy process as it requires a number of steps to reach a resolution. Below, we will give an overview of due process in special education cases so you know what to expect if you find yourself needing to file a complaint.
The procedure for due process and special education complaints is broken down into five steps.
In some cases, not all steps may be taken if a resolution can be reached early on during the process. A due process hearing is the final stage of special education complaints and will only be reached if no agreement is made. If there is no satisfactory resolution after the hearing, then parents can move forward with the appeal process.
The Process
- Resolution: Following the filing of a complaint, parents and the school will partake in a resolution session. Here, both parties will attempt to find a resolution to prevent the process from escalating. This session must take place within 15 days of the original complaint and is mandatory — if parents do not attend, the complaint may be thrown out entirely. The only exceptions to this mandate are if the parents and school both agree to forgo the session or if both parties agree to a mediation instead. An important note about the resolution is that the session is not confidential – evidence presented may be used against your child in a trial setting.
- Mediation: Mediation is another route of negotiation similar to resolution, except it is confidential and involves a third-party mediator to help reach a legal agreement. In order to have a mediation, both parties must agree to attend. If an agreement is reached, both parties must sign a legal written agreement outlining the resolution of the complaint. The state assigns a qualified, third-party professional to the mediation at random to ensure impartiality.
- Trial: If no agreement is reached in the mediation or resolution, both parties will then move on to a due process hearing. A due process hearing looks very much like a typical trial in a courtroom. You can bring a lawyer, present evidence, confront and designate witnesses and the trial may be open to the public. Both parties must share what evidence they will be sharing with one another at least five business days before the hearing. At the end, a hearing officer will make a decision.
- Appeal: In the case that the hearing officer rules against you, parents may appeal the decision. Depending on which state you live in, the appeal is either filed through the state-level SEA or must be pursued through civil action in court.
The amount of time needed for due process in special education proceedings can vary according to the severity of the complaint and the school’s willingness or unwillingness to cooperate.
What can I expect at my student’s due process hearing for a special education complaint?
Due process hearings for special education cases can be intimidating to many parents. While a due process hearing for a special education case may look like a stereotypical courtroom trial, there are a few key differences. Most notably, a qualified hearing officer will be determining the outcome of your case instead of a judge. Parents are welcome and encouraged to enlist the help of a lawyer to navigate the hearing, though many states permit the use of education advocates to act as representation. Five days before the hearing begins, both parties are required to exchange a list of witnesses and copies of any evidence you may wish to include in your argument. Information that you fail to disclose before proceedings may be deemed inadmissible.
If you have any questions pertaining to this information, please don’t hesitate to contact us!
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Our mission is to help families like yours navigate the educational system and obtain the services and support your child needs to thrive. Our team of expert attorneys can advocate for your child’s rights and help you resolve any conflicts with your school district.
Special Education
We focus solely on educational law in Southern California, offering legal assistance to families and children of all abilities. We’re here to help parents understand Individualized Education Programs (IEPs) and ensure that every child gets the education they deserve.
Special Education Eligibility
In 1975, Congress passed the Individuals with Disabilities Education Act (IDEA) to ensure that all children with disabilities have access to a free, specialized education tailored to their individual needs. To qualify, a child must be "adversely affected" by one of the 13 disabilities listed under IDEA. If a child is suspected of having a disability, their school or parents may request an evaluation.
Individualized Education Program
Knowing whether your student needs an individual education plan (IEP) or 504 Plan is a critical step in your special education student’s academic endeavors and may provide your student with a better framework for success in the classroom.
Federal Appeals
In a situation where you lose all or some of your legal issues in the California Office of Administrative Hearings (OAH), you are able to appeal the OAH decision in federal court. The appeal is filed within the United States District Court, which varies depending on which district you are aligned with.
504 Accommodations
A federal law that intercepts discrimination against children with special needs in the learning environment, whether on public, private, or charter school grounds. Under this arrangement, any education space that has access to federal funding MUST make the appropriate accommodations to secure the notion that all students with disabilities are provided a free public education.
Due Process
Parents and teachers can resolve issues surrounding a child’s education in a perfect world. However, in some cases, issues concerning special education may leave parents with no option other than to take a more official route — this is where due process comes in.