What is Due Process? Why Do We Need it?
By Renee Harding
Under IDEA (2004), due process is a formal set of procedures for resolving conflicts between the school (or district) and parents (or the equivalent, as recognized by IDEA) regarding the child’s rights to special education related to “identification, evaluation, or educational placement”. In other words, due process ensures that children with disabilities and their parents are guaranteed rights to conflict resolution regarding the provision of a free appropriate public education (FAPE) (20 U.S.C. §§ 1414-1415). Due process is one of the most powerful ways to resolve a dispute with a school about a child’s education. Because the process is complicated, a parent may want to speak to an education advocate or lawyer if considering it. By understanding your legal rights, you can decide whether this is an option you want to pursue. It is important to note that due process protects both parties in conflicts that may arise.
For a parent, due process includes the right to participate in all meetings, to examine all educational records, and to obtain an independent educational evaluation (IEE) of the child. Written notice is required when the school proposes to change or refuses to change the identification, evaluation, or placement of the child. The school, Local Education Agency, or State Education Agency must seek to obtain informed parental consent for initial evaluation (20 U.S.C. § 1414), when possible. In cases where the parent refuses to consent to evaluation, the agency seeking evaluation may file due process against the parent, unless the parent refuses consent for special education services.
Each stage of due process has specific time limits. The parent must file a due process complaint within two years of learning about the school’s action. The school must hold a resolution session with the parent within 15 calendar days of receiving the due process complaint. A 30-day period for reaching a resolution agreement follows. If no resolution agreement is made within that 30 days, the state department of education has 45 days to make sure there is a due process hearing and decision. The parent has 90 days from the due process decision to file a lawsuit in state or federal court. (Exceptions apply state-to-state.)
The parent needs to send the complaint to the school and to the state department of education. If an issue is not stated in the complaint, it cannot be raised at the hearing. Evidence and witnesses may be presented at the due process hearing. The party filing due process has the right to hire a lawyer and other experts, to present evidence and have witnesses attend and testify, to confront and cross-examine the school’s witnesses, to a free written verbatim recording of the hearing, to free written findings of fact and decision from the hearing officer, have the child present, and to have the hearing open to the public. The defending party has the same rights.
According to IDEA, the hearing officer that decides the case must be “impartial.” The officer can’t be an employee of the school or have a conflict of interest favoring either side. The officer must also have the knowledge and ability to conduct a hearing.
At least five business days before the hearing, the school and parent must disclose all evaluations and evidence that will be presented at the hearing. These disclosures ensure that both sides have a fair chance to respond to the other. If the parent or the school fail to disclose something five days before, the hearing officer can stop that evidence from being used at the hearing. After both sides present evidence and witnesses, the hearing officer makes a decision.
If the parent wins the due process hearing with the help of a lawyer, the school may have to pay for “reasonable” attorney fees, according to IDEA. In some states, the hearing officer can award fees. In other states a lawsuit must be filed in a court to get attorney fees from the school.
If the school wins, it can seek to have the parent pay for its lawyers. A court will make the parent pay lawyer fees for frivolous or cases intended to harass or delay. The parent can challenge a hearing decision after a loss. This process is the same for schools.
If the hearing officer decides against the parent, the parent has the right to challenge the decision. In some states, the parent can start a lawsuit in state or federal court. In other states, the parent must first appeal to the state department of education before filing a lawsuit.
The school may file due process against the parent during the initial evaluation when the parent does not provide consent. If, during evaluation, the evaluator determines that the child may need additional testing, the school may request permission for additional testing. If the parent disagrees and refuses to consent, mediation should be the first step. Due process should be the last step. It is expensive, time consuming, emotionally draining for parents and the children involved, and most importantly, while the due process proceeds, the child is delayed from receiving services, assuming the child qualifies.