Understanding Due Process in Education

When disagreements arise between parents and schools regarding a child's special education services, understanding the concept of due process becomes crucial. Due process, as it relates to education, is a formal legal mechanism available to resolve disputes, particularly those concerning students with disabilities. It is a structured process guaranteed by the Individuals with Disabilities Education Act (IDEA), ensuring that both parents and school districts have a fair opportunity to present their case and seek resolution.

What is Due Process?

Due process is a formal, legal way to resolve a dispute between a parent and a school regarding the identification, evaluation, educational placement, or the provision of Free Appropriate Public Education (FAPE) to a student with a disability. It serves as a last resort when other methods of dispute resolution, such as informal meetings or mediation, have failed. It’s important to note that due process is specifically designed for special education disputes and cannot be used for general grievances unrelated to a child’s disability or special education needs.

Who Can Initiate Due Process?

The right to request a due process hearing belongs to both the parent(s) and the school district. Additionally, a student who has reached the age of 18, considered an adult in most jurisdictions, can also initiate the process on their own behalf. To ensure timely action, the request for due process must be made within two years of when the party initiating the process knew or should have known about the issue that prompted the request.

Filing a Request for Due Process

Before initiating a due process request, it is advisable to seek guidance from organizations specializing in disability rights. In Kansas, for example, Families Together and the Disability Rights Center offer free assistance regarding parental rights in special education. The Kansas State Department of Education provides a specific Due Process form that must be completed and submitted according to the provided instructions. Upon receiving the request, the school district is obligated to provide information about available free or low-cost legal services and a copy of the Parents’ Rights.

The due process complaint that initiates the process must be written, signed, and include specific information:

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The child’s name
The child’s address
The name of the child’s school
A detailed description of the dispute, including relevant facts
A proposed solution to the dispute

The complaint must be sent to both the school and the state department of education.

Financial Implications of Due Process

Requesting a due process hearing is free of charge. However, it’s important to recognize that the entire process can be lengthy and complex. While the school does not cover the parent's attorney fees, the parent may be responsible for the school's legal fees if they lose the hearing, especially if the case is deemed frivolous or intended to harass or delay. Therefore, parents have the option to represent themselves and their child without an attorney.

The "Stay Put" Provision

Once a due process request is filed, the "stay put" provision of IDEA comes into effect. This means that the child remains in their current educational placement while the due process proceedings are ongoing. Any changes to the child's placement require agreement between the parents and the school. The school cannot unilaterally alter the child’s setting without parental approval.

The Due Process Hearing: A Detailed Look

The due process hearing itself is a formal legal proceeding presided over by an impartial hearing officer, often an administrative law judge (ALJ). This officer cannot be an employee of the State Educational Agency (SEA) or the local educational agency (LEA). The hearing officer acts as the judge and jury, managing the hearing, reviewing evidence, and rendering a final decision and order.

Resolution Session

Within 15 days of receiving the due process complaint, the school district must convene a resolution session with the parents. This meeting is intended to provide an opportunity to resolve the dispute before proceeding to a full due process hearing. A representative from the school with the authority to make decisions regarding the child's special education services must be present. The school's attorney cannot attend unless the parent is also represented by counsel.

Hearing Procedures

If the resolution session does not resolve the complaint to the parent's satisfaction within 30 days, a due process hearing is scheduled. At the hearing, both the parents and the school district present evidence and arguments related to the issues raised in the initial complaint. New issues cannot be introduced at this stage.

IDEA grants specific rights to both parties during the due process hearing:

The right to be accompanied and advised by legal counsel or other experts.
The right to present evidence and witnesses.
The right to confront and cross-examine witnesses presented by the opposing party.
The right to obtain a written or electronic record of the hearing, along with written findings of fact and the hearing officer’s decision, at no cost.
The right to have the child present at the hearing.
The right to have the hearing open to the public.

At least five business days before the hearing, both parties must disclose all evaluations and evidence they intend to present.

The Hearing Officer's Role and Responsibilities

The hearing officer plays a crucial role in ensuring a fair and impartial hearing. IDEA specifies minimum qualifications for hearing officers, emphasizing their independence and expertise. The hearing officer must possess the knowledge and ability to conduct hearings in accordance with standard legal practices.

The hearing officer’s responsibilities include:

Weighing the merits of each party’s arguments, evidence, and witnesses.
Applying IDEA and relevant state laws and regulations.
Considering legal interpretations of IDEA by federal and state courts.
Determining whether the child received a Free Appropriate Public Education (FAPE).

The hearing officer’s decision must be based on substantive grounds, focusing on the child’s right to an appropriate education. While procedural violations can be considered, they must have resulted in a deprivation of educational benefit to the child.

Agreements and Outcomes

If an agreement is reached between the parents and the school, it is formalized in a written agreement, which is legally binding and signed by both parties. If no agreement is reached, the hearing officer issues a written decision. The school system is required to implement the hearing decision as soon as possible. After removing any personally identifiable information, the findings and decisions from the due process hearing must be made available to the public.

Appealing a Due Process Decision

The process for appealing a due process decision depends on whether the state employs a one-tier or two-tier system.

One-Tier System: In a one-tier system, the State Education Agency (SEA) conducts the initial due process hearing. If either party disagrees with the decision, their only recourse is to file a civil action in state or federal court.
Two-Tier System: In a two-tier system, the initial hearing is conducted by the local educational agency (LEA), and an appeal to the SEA is available. The SEA must conduct an impartial review of the hearing findings and decision.

In either system, a civil action must be brought within 90 days of the hearing officer's decision (in a one-tier system) or the state review official's decision (in a two-tier system), unless the state has established a different timeframe. The court’s decision is based on the preponderance of the evidence, and the court can grant appropriate relief.

Attorney Fees

If the parents prevail in the due process hearing and were represented by an attorney, they may be able to recover reasonable attorney fees from the school district. Conversely, if the school district prevails, it may seek attorney fees from the parents if the parents’ case was deemed frivolous or intended to harass or delay.

The Burden of Proof

The burden of proof in a due process hearing, meaning which party is responsible for proving their case, varies by state. Some states place the burden on the parent, while others place it on the school district.

Resolving Disputes Through Mediation

An effective alternative to due process is special education mediation. Mediation can be requested from the school district at any time, even before filing a due process complaint.

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