Due process is intended to ensure that children with learning disabilities and other types of disabilities receive a free appropriate public education. These policies and procedures are typically described in a school district’s procedural safeguards statement and local policies. Procedural safeguards are sometimes referred to as parent rights statements. Due process requirements were set forth in the IDEA with the intention that, if followed, they would help to facilitate appropriate decision making and services for children with disabilities.
Hearings for Aggrieved Parents
Special education due process hearing is one of three main administrative remedies available to parents under the Individuals with Disabilities Education Act (IDEA) and Section 504 of the Rehabilitation Act of 1973 to resolve disagreements between parents and schools regarding children with disabilities.
What Happens During a Hearing?
A due process hearing is similar to a hearing in civil court. Either party may be represented by an attorney or may present their cases themselves. The procedures and requirements for a due process hearing may vary depending on your state’s specific administrative laws. Generally, hearings occur because parents believe the child’s individual education program (IEP) is not being implemented appropriately, their child has been denied a Free Appropriate Public Education (FAPE), or they disagree with the school about which teaching methods would be appropriate for the child. In other cases, parents believe the school district has failed to provide the necessary support services, such as speech, physical or occupational therapies, for the child. They may also believe they have tried to work with the district to resolve the problem but have not been successful. Sometimes, the disagreement has become so significant that it requires an impartial hearing officer (IHO) to resolve it.
How Due Process Hearings Unfold
The plaintiff or complainant gives an opening statement that details his or her allegations against the defendant or respondent. The plaintiff also has the burden of proof. Both parties are provided an opportunity to state their cases. Each must prove any allegations are facts with adequate, admissible evidence, and supportive documentation. Common types of evidence include the child’s cumulative records and confidential special education files; referrals for assessment; assessment reports from the school or private evaluators. The child’s IEP goals and objectives, progress reports; discipline reports, such as suspension and expulsion documentation; and attendance and grade reports; may also be evidence. Both parties may prepare briefs to support their positions to submit to the IHO for consideration. Briefs typically include background information on issues involved with the case. For example, a parent of a child with autism may submit a brief detailing the effectiveness of augmentative communication. Each party may subpoena witnesses to testify in person or via affidavit or deposition. Parties are given the opportunity to cross-examine any witnesses who testify during the hearing. The hearing officer listens to the case presented by the parties and issues a formal decision based on case law. IHOs may rely on existing administrative laws, binding precedent and persuasive precedent to form their decisions on the matter.
Other Grievance Procedures
Parents may also pursue other grievance procedures. For example, they can seek an informal resolution to the problem by speaking with the principal or manager of the child’s school, the special education administrator or a Section 504 administrator. Additionally, they can file a complaint with the local board of education through the district superintendent or manager or file an IDEA formal complaint with the state’s department of education. Some parents choose to file a Section 504 complaint with the U.S. Department of Education’s Office of Civil Rights. Lastly, they can request mediation from the state’s department of education. Because due process hearings can be a lengthy and stressful process for all parties involved, pursuing other forms of resolution may be beneficial.
