Should you go to Due Process without a lawyer?
We’d do anything for our kids. Anything.
And since some of us have been dealt a less than a favorable hand, that can mean doing battle with your school district over what type of education your child receives. And sometimes that battle leaves us no other choices than going to Due Process. For the families I work with, I always do everything but Due Process. Or, I should say, try every possible solution besides Due Process.
“Oh, because Due Process is stressful?” clients will ask me.
“No. Mediation is stressful. IEP meetings can be stressful. Due Process is brutal.” That’s the truth. And from a family standpoint, it really takes a toll on the family and should be avoided at all costs. It’s a system that is stacked against parents.
But, a few things that can turn the odds in your favor is helpful tips. Recently I had the opportunity to interview a Hearing Officer from the state of New Hampshire. And I got to ask him questions about parents in Due Process. Our system allows for families to go to Due Process pro se. That is, you act as your own attorney or represent yourself. And since hiring an attorney can cost $5k, $10k or more, and with Independent Evaluators (expert witnesses) a few thousand more on top of that, you can see why the pro se option is attractive.
Please note, I am not a lawyer nor do I play one on the internet. This is not intended as legal advice, but just as helpful anecdotal information to help you in your decision.
I was very glad to have the opportunity to ask him, “So what are some areas do you see parents making mistakes when going pro se? Or areas that they could improve?” Below are some of his thoughts. His main thoughts are in bold and I have elaborated on some of them.
Before you represent yourself in Due Process
First, we talked about the “climate” and how parents must network with others to understand the climate in special education. For example, in his state, they are not as litigious as we are down here. So a parent may go pro se because of a lack of special education attorneys. But, down here? Totally different. PA and NJ make up almost half of all Due Process cases in the nation. That totally changes the climate in that we have many more Special Ed attorneys, both for parents and for school districts. It also means that districts and their attorneys are much more savvy at this, and they’ve had more practice. It also means that districts are not as afraid to file for Due Process–it’s not this giant, expensive, unknown thing. It’s pretty routine. Ok, still expensive, but again, school boards here are used to approving the expenses of Due Process. Here are a few points that he said he has observed, watching parents do a pro se Due Process.
- Check to see if your state allows advocates to assist you. Some states allow this. And, if you find a good advocate (who can be a bit more affordable than an attorney) who has done this many times, that will help you.
- Parents are not as adept as attorneys as questioning the witnesses. This might seem obvious, because duh, parents are not attorneys. But questioning and cross-examining witnesses is a very important part of the process. And one area where you will be out-gunned if you do not get yourself some practice and advice on how to do it properly. No, it’s not like an episode of Judge Judy, but there is examination and cross-examination of witnesses, and you need to be ready for that.
- Not testifying with evidence. If you cannot afford an attorney, you should try your best to afford an IEE that demonstrates your points. You have to show why what you are asking for is appropriate for your child. It might make a lot of sense in our heads as parents…but it is not so obvious to Hearing Officers. You need to have evidence (often in the form of an IEE report) and you need to have the evaluator come in and testify for you too.
- Not having counter evidence. The school district will come to Due Process with evidence as to why they are right and what you are asking for is wrong (I’m simplifying here). It is not enough to just have evidence that what you are asking for is right. You have to have evidence that shows that what they are asking for is inappropriate, or wrong, or detrimental to your child. Remember, in the eyes of the law, the district does not have to provide what is “best” only what is appropriate.
- Not realizing that the school is not going to be helpful. This is naivete on the part of the part of the parents, but it happens. The school’s objective or the school’s attorney’s objective at this point is to WIN. They want to win this hearing. The school is not going to help the parent and is going to be a reluctant witness, no matter who you subpoena. Teachers, therapists, aides….they need to keep their jobs, no matter how much they like your child or believe you are being wronged. These folks also will be coached at length, by the school district attorneys. They will be prepped and practiced on what to say.
- Establishing a lack of FAPE, but not knowing the next step. Even if a parent demonstrates that FAPE was not provided, they often don’t know what to ask for to remedy a situation. This is where networking with other families and advocates is helpful because you have to know what is out there. If you do not provide an option for the Hearing Officer to see as the most appropriate option for your child’s FAPE, they may think that the school district provided the most appropriate option available to them. What do you want to happen next?
Those are his main points, so please consider them and fix them before you go to Due Process on your own.
One parent’s account of going to Due Process without an attorney
I have a friend who also is a Special Ed Advocate and someone who I really admire. She has done this, and prevailed, and here is her advice:
Going pro se to DP was something I had thought about for a very long time, and it was a decision that was made after working with several attorneys. LOTS of time spent researching, preparing and of course, having second thoughts! A lot has changed in the 12 years since I went pro se to Due Process, particularly the PA DP system itself, (the elimination of the appeals panels or third tier review). Also, shifting the burden of proof onto the parents has made it particularly difficult for parents considering pro se.
Districts have unlimited resources when it comes to litigating these cases, and parents can only go so far until they find themselves in a position where they absolutely must hire counsel (state/federal levels) especially if they are doing this for the first time. Typically, Districts don’t fold up their tent and move on when a parent prevails at the due process level (whether the parents have counsel or are pro se). School districts almost always appeal unfavorable hearing officer decisions to state or federal levels.
So, chances are, if you are lucky enough to have a district willing to go to mediation or a pre-hearing resolution session, you should by all means try to resolve the disputes at those levels first (keeping in mind the two-year statute of limitations for “filing a DP complaint”).
In my opinion, parents pursuing DP pro se have a better chance to be successful in situations where the issue(s) in dispute are relatively straightforward or limited, i.e., wanting the District to provide something specific for a child (ESY eligibility/programming, related services, limited compensatory education, or disputing the reduction or elimination of a related service). Disagreeing with a proposed change of placement (particularly in cases where a District fails to consider all relevant factors pertaining to LRE) is another example.
In my opinion, Tuition reimbursement cases are the HARDEST, MOST DIFFICULT cases to argue in DP (even for many seasoned attorneys). I would never recommend a parent go to DP, pro se, to argue the inappropriateness of their child’s entire educational program or to obtain private placement/tuition reimbursement. Bearing the burden of proof in these types of cases is extremely challenging and overwhelming for parents who actually ARE represented by counsel, and the records/exhibits alone are voluminous.
If you do decide to go pro se, review and study the due process hearing decisions posted online, in your respective state to stay abreast of key DP hearing issues and to get an idea of the merits of the cases in which hearing officers ruled favorably for parents. It is very helpful to read these cases if you are considering going pro se for several reasons which include 1) how a particular hearing officer rules, 2) the issues at stake; 3) the remedy being sought by the parents; 4) the parent arguments; 5) the District’s argument; 6) supportive case law cited; 7) the remedy or award to parents if they prevailed.
Become familiar with special education case law and relevant state/federal regulations supporting your claims. There is a query option on ODR’s website where you can review all “pro se” cases, which gives a glimpse of the process and outcomes for these types of cases. Lastly, there are many resources on the web that provide step-by-step guides, tutorials and “mock” due process hearings that are very helpful for parents considering the pro se option.
If you have the time to really devote to pursuing due process on your own, it can be all-consuming because you are learning and litigating at the same time and there are strict timelines that must be followed by the parties throughout the entire process. In certain circumstances, (such as disciplinary/expulsion proceedings, involvement of criminal justice system), the process moves much quickly and there is relatively no time for preparation.
Parents need to skip go, and proceed straight to a criminal attorney or a special education attorney who can refer to appropriate counsel with knowledge of the IDEA and Section 504. It’s been a very long time since I was put in the unenviable position of having to go to due process pro se, and looking back, the only regret I have is how much time preparing for it took me away from my family, and how long it took to finally reach an amicable resolution.
So there you go, I hope it helps. If you have done this, please leave us a comment with your advice.
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