Inside: Learn what Special Education Due Process is, how to initiate the process and many important points to consider before filing for Due Process in Education.
Sometimes I encounter a passionate-yet-uninformed parent who exclaims, “I’m just going to sue the school!”
Well, it doesn’t really work that way and you can’t win a case on passion alone. And, Special Education Due Process is NOTHING like Judge Judy.
Should I file for special education due process? Special Education Due Process is one of a parent’s rights in Procedural Safeguards. It is very serious, and in my opinion, should only be done as a last resort.
1. Due Process Special Education
This means that you have exhausted all other means of the IEP process including multiple meetings and mediation.
IEP due process is a crucial aspect of special education that helps to ensure that all students receive the appropriate support and services they need to succeed academically and socially.
As someone who has worked as a special education advocate for over a decade, I have seen firsthand the importance of IEP due process in ensuring that students with disabilities receive a free and appropriate public education (FAPE).
IEP due process is a legal process that parents and students can use to resolve disputes with their school district about the provision of special education services. This process is designed to protect the rights of students with disabilities and ensure that they receive the education and support they need to succeed.
As someone who has been involved in IEP due process hearings, I can attest to the complexity and importance of this process. Sometimes when helping a client find a pro bono (no charge) attorney, that attorney will ask me to do some of the research and file preparation for them.
It is crucial for parents and students to understand their rights and the steps involved in the IEP due process to ensure that they receive the best possible outcome.
2. What is Due Process?
The term due process applies to many aspects of our lives. What kind of due process you’re talking about depends on the people you are with.
The definition of due process is:
fair treatment through the normal judicial system, especially as a citizen’s entitlement.
Oxford Dictionary
And, our judicial system can apply to just about anything.
However, if you’re an IEP nerd like me, who is frequently in the company of other IEP advocates, when we say “due process” it is assumed that we are talking about Special Education Due Process.
3. What is Special Education Due Process?
IEP due process is a legal procedure that allows parents and guardians to challenge decisions made by schools regarding their child’s Individualized Education Program (IEP).
An IEP is a plan that outlines the educational goals and accommodations for a student with a disability. If a parent or guardian disagrees with the school’s decisions regarding their child’s IEP, they can request a due process hearing.
This hearing is conducted by an impartial hearing officer who listens to both sides and makes a decision based on the evidence presented. That last part is crucial.
Once you are in due process, it is all about the evidence and the case presented. It is no longer about the child. Sad, but true.
4. When is IEP Due Process Necessary?
IEP due process is necessary when parents or guardians believe that the school has not provided their child with the appropriate education or accommodations as outlined in their IEP. This can include issues such as:
- The school not providing the necessary accommodations or services
- The school not following the IEP as written
- The school not providing the appropriate placement for the student
- The school not addressing behavioral or disciplinary issues appropriately
I always recommend that you try everything to resolve your issue before Due Process. (and my online training program can really help with this!)
5. IEP Due Process: Lawyer up or pro se?
For an IEP due process, you can either hire an attorney or you can do this “pro se” which means you represent yourself. I have known some women who have gone to DP pro se, and have won/prevailed.
Those women, some of them were/are paralegals. Also, not every region of the country has adequately qualified special education attorneys. In some areas, they are more prevalent than in others. Attorneys are also expensive.
However, just because you can save money by doing your Special Education Due Process Hearing by yourself, doesn’t mean you should. I strongly encourage you to read that link above which gives you some tips if you are considering going it alone.
Those Due Process Hearing tips are straight from a Hearing Officer. Still, the rate of parents winning (or prevailing, as it is called) when they go pro se is in the single digits, as far as a percentage of parents who prevail in due process.
Just because someone is an attorney does NOT mean they can do a good job at Due Process. And I’ve heard this from other attorneys! I am acquainted with this one special education attorney in our area.
His child has some learning disabilities and was having issues and disagreements with his school district. At the time he was a very good insurance attorney. So he called a few friends and said, “Hey, I’m having trouble with my son at school. Are there any laws or anything to protect these kids?”
He then re-educated himself and became a special education attorney. Despite his qualifications and passion, he knew that he could not help his son. You need someone qualified and experienced or you are just throwing money away.
Attorneys are expensive. Ask about their rates going into the process. What is their average cost for a Due Process case? What is their success rate? Who must pay for experts, and what will that cost?
In some cases, they can recover their fees from the school district if you prevail, and if you have a strong case they may be willing to take that risk.
6. IEP Due Process: Burden of Proof
You have to know the lay of the land in your area or state. In my state, the burden of proof is on the filing party. That is, if it is the parents who file for Due Process, the burden of proof is on them. It’s different in different Federal districts, based on case law.
Some states have statutes in the works. But if you want to file and the burden of proof is on you, you are on an uphill course from the get-go. As an aside, in my state, I believe that this has created a culture of “no” in our state.
Districts just say no, over and over and over. Because if parents file for DP, the burden of proof is on them. So they can keep saying no until you file.
7. The IEP Due Process Hearing
As a parent or guardian of a child with a disability, you may find yourself in a situation where you disagree with the school district’s proposed individualized education program (IEP) for your child.
If this happens, you have the right to request an IEP due process hearing.
8. What Happens During an IEP Due Process Hearing?
During an IEP due process hearing, both you and the school district will have the opportunity to present evidence and arguments to an impartial hearing officer.
The hearing officer will review the evidence and make a decision on whether the school district’s proposed IEP is appropriate for your child’s needs.
There is also something called a resolution meeting, held before the due process hearing. The resolution meeting is a last attempt to resolve the situation prior to moving on to a full hearing.
9. Who Participates in an IEP Due Process Hearing?
The following individuals typically participate in an IEP due process hearing:
- You, as the parent or guardian of the child
- Your child, if appropriate
- A representative from the school district
- An impartial hearing officer
- I’ve never heard of a school district going to due process without an attorney.
You may also choose to have an attorney or advocate present with you during the hearing.
You might also notice that teachers and therapists are absent from that list. While I have watched hearings where teachers were present and went before the hearing officer, more often than not, they submit written testimony and whatever documentation is requested of them.
10. What Are the Possible Outcomes of an IEP Due Process Hearing?
After reviewing the evidence and hearing arguments from both sides, the hearing officer will make a decision on whether the school district’s proposed IEP is appropriate for your child. The following are some possible outcomes of an IEP due process hearing:
- The hearing officer may find that the school district’s proposed IEP is appropriate and deny your request for changes.
- The hearing officer may find that the school district’s proposed IEP is not appropriate and order changes to be made.
- The hearing officer may find that the school district’s proposed IEP is not appropriate and order the school district to provide additional services or placement in a different educational setting.
It’s important to remember that an IEP due process hearing can be a lengthy and stressful process.
And stressful doesn’t even begin to define it. Once you have filed for due process, I would expect every interaction you have with the school to change.
Teachers will no longer email you. They likely will only talk to you minimally. All of your child’s teachers and staff have likely had an instructional session with the school district’s attorney on what they can and cannot say and do.
This is done to limit their liability, and reduce the risk of a school employee doing something that would jeopardize them winning their case.
11. IEP Due Process: No Longer Child-Focused
Again, once due process is underway, it’s about who wins, not about the child.
At IEP meetings, no matter how argumentative they may become, you are probably still discussing your child. You just disagree on what is appropriate for your child.
Once you are in due process, the focus is no longer on your child. The focus is really on who has the better case or the better paper trail. Sad, but true. As a parent and as an advocate, I am always going through the IEP process as if I expect to find myself in Due Process.
This is why I am constantly brow-beating all of you to get it in writing!
This is why I remind all of you to not let your passions and your emotions get the best of you. Don’t say things you’ll regret, stay professional, and take the high road.
Any and all of your antics, rants, nasty emails, or anything like that “can and will be used against you.” Believe me, they’ll bring it up in Due Process to portray you as a crazy, impossible-to-deal-with-parent.
I’m not suggesting that you be fake and not advocate for your child. Just remain child-focused and stay professional.
12. IEP Due Process: Fair and Impartial?
Ha, I wish! As a professional advocate, we get a “feel” for the hearing officers. We know which ones are known to be more parent-friendly and which ones are more school district friendly.
A good attorney knows this as well. But just like SCOTUS justices get appointed because of their views on things, many Hearing Officers are known for their decisions.
I have known of Special Education Due Process hearings that took place in school district buildings, or “on their turf” as it were. They can be held in community buildings or other public places. They often are NOT in a courtroom. Again, this is not Judge Judy. This is very different.
13. IEP Due Process: Resolution Meeting and Settlement Agreements
Before actually proceeding to Special Education due process, you will be called to go through a resolution meeting. This is basically, a last-ditch effort to get the family and the district to come to some type of agreement before dragging everyone through DP.
You likely may be offered a Settlement Agreement. If you are doing DP pro se and you are offered a settlement agreement, please please please pay an attorney to at least read the Settlement Agreement for you.
I have never seen a settlement agreement without a gag order, which means that the parents are not allowed to talk about it at all. Some parents get private school tuition in settlement agreements, then forget to negotiate transportation.
A family may be offered nice settlement agreements, only to have the attorney take their 20 or 30%, and then the parent is left without enough money to pay for the desired private school. These are just a few reasons that it is essential to have a decent attorney (get terms upfront) read over your settlement agreement.
Throughout the whole ordeal, get yourself a good support team, keep your eyes wide open, and question everything. Including your own attorney’s fees!
You may be asked to Sign Away FAPE as part of a Settlement Agreement.
14. Parent Guide to Due Process
Here is a parent guide for you to read if you are considering due process, and I highly suggest you try to find other families who have been through it so that you know what to expect.
- Your state should have a website or office or division that is devoted to this. Ours (Pennsylvania) is called Office of Dispute Resolution.
- Read all your different options.
- Read the decisions of other cases.
- Visit more than one attorney.
Keep your passion, but don’t let it get the best of you. I know when I was fighting to get my son a specific placement, I kept asking for choice C. District kept offering A. Then they offered B. I still wanted C, but visited an attorney who told me, “You don’t have enough here to win a hearing to get C. Take B.”
I did, and as it turned out, it’s a fantastic placement, I love his team and for us, it worked out wonderfully. Choice C may have been a better placement, I’ll never know.
But the point is, I didn’t have the paper trail to prevail and win placement C. It’s about who has the best case, and that wasn’t me.
15. Preparing for an IEP Due Process Hearing
In my professional opinion, you should not represent yourself (also known as pro se) in a due process hearing.
What Should You Do Before the IEP Due Process Hearing?
Before the IEP due process hearing, I should make sure that I have all the necessary documents and information. I should review my child’s IEP, evaluation reports, and any other relevant documents. I should also review the school district’s policies and procedures related to special education. It is important to understand my child’s rights and the process of the hearing.
I should also prepare a list of questions and concerns to discuss with my attorney or advocate. I should be familiar with the hearing procedures and what to expect during the hearing. I should also be prepared to negotiate with the school district and to provide evidence to support my case.
What Evidence Should You Gather?
I should gather all the evidence that supports my child’s case. This may include medical records, evaluations, progress reports, and any other relevant documents. I should also gather witness statements from teachers, therapists, and other professionals who have worked with my child.
I should organize the evidence in a clear and concise manner, so that it is easy to present during the hearing. I should also be prepared to explain how the evidence supports my child’s case.
What Should You Expect During the IEP Due Process Hearing?
During the IEP due process hearing, I should expect to present my case to an impartial hearing officer. The hearing officer will listen to both sides and make a decision based on the evidence presented.
I should be prepared to answer questions from the hearing officer and the school district’s attorney. I should also be prepared to negotiate with the school district and to make compromises if necessary.
Overall, preparing for an IEP due process hearing can be stressful, but it is important to be organized and prepared. By gathering evidence and understanding the hearing procedures, I can increase the chances of a positive outcome for my child.
16. Appealing an IEP Due Process Hearing Decision
If I disagree with the decision made during an IEP due process hearing, I have the right to appeal the decision. Appealing a decision means asking a higher authority to review the decision made by the hearing officer.
What Are Your Options for Appealing an IEP Due Process Hearing Decision?
There are two options for appealing an IEP due process hearing decision:
- Mediation: Mediation is a voluntary process that involves a neutral third party who helps both parties reach an agreement. Mediation is often used as the first step in resolving disputes before filing an appeal.
- Filing an Appeal: If mediation is unsuccessful, I can file an appeal with a higher authority, such as a state educational agency or a federal court.
What Are the Grounds for Appealing an IEP Due Process Hearing Decision?
I can appeal an IEP due process hearing decision if I believe that:
- The hearing officer made a legal error
- The hearing officer’s decision was not based on the evidence presented
- The hearing officer’s decision was arbitrary and capricious
What Happens During an Appeal?
During an appeal, a higher authority will review the decision made during the IEP due process hearing. The higher authority may:
- Affirm the decision made during the hearing
- Reverse the decision made during the hearing
- Remand the case back to the hearing officer for further review
It’s important to note that appealing a decision can be a lengthy and expensive process. It’s important to weigh the potential benefits and drawbacks before deciding to appeal.
In conclusion, if I disagree with the decision made during an IEP due process hearing, I have the right to appeal the decision. I can either try mediation or file an appeal with a higher authority. I can appeal a decision if I believe there was a legal error, the decision was not based on evidence, or the decision was arbitrary and capricious.
During an appeal, a higher authority will review the decision made during the IEP due process hearing and may affirm, reverse, or remand the case.
17. Special Education Due Process: Final Thoughts
I’m not a wet blanket. Nor am I trying to talk everyone out of Due Process. I’m not. Special Education Due Process has an important place in the system.
However, I have watched many families do this. It is NOT a decision to be entered into lightly.
It is emotional, exhausting, and expensive. You and your spouse/partner will have to take time off work. You may not win. And, even if you do win, the district may appeal (as is their right) and then you have to do it all over again.
Jenny, who is a COPAA member and advocate and an admin for our chat group, says this, which I think is accurate:
“I have never been past mediation but our very seasoned attorney repeatedly told me that no matter how hard he tried to prepare me for it I would still say to him ‘I didn’t realize it would be that stressful‘ when all was said and done.”
Good luck with your decision!