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. This means that you have exhausted all other means of the IEP process including multiple meetings and mediation. 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, it is NOTHING like Judge Judy.
1. Lawyer up or pro se?
For a 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 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 when they go pro se is in the single digits, as far as %.
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, 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 is 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.
2. 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. That’s it. 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.)
3. IEP Due Process: no longer child focused
Once you are in a due process, the focus is no longer on your 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 a due process, 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.
4. 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.
5. 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 up front) 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.
6. IEP 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 Facebook 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.”
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.
Critical points to consider 7 through 11:
- 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 DP 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.
Good luck with your decision!
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