Thursday, January 19, 2012

Due Process in Special Education Hearings

When parents of children with disabilities ask why a due process is not simply called a trial, they are asking an important question that goes directly to their rights under the U.S. Constitution. The Fifth Amendment guarantees due process, stating that ""No person shall . . . be deprived of life, liberty, or property, without due process of law." This federal right is applied to state governments by the 14th Amendment, which provides that no state shall “deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Due process of law is a fundamental, constitutional guarantee. It means that when the government acts to take away life, liberty, or property, all legal proceedings will be fair and the people affected will be given notice of those proceedings and an opportunity to be heard. When the U.S. Supreme Court decided Goss v. Lopez (419 U.S. 565) in 1975, it held that state compulsory school attendance laws create a property right in education, and on that basis, public schools may not deprive a school aged child of the right to an education without ensuring that a fair process is available.

Under the Individuals with Disabilities Education Act (IDEA), parents and schools may request a “due process hearing” to resolve a dispute. Due process complaints are not filed in a state or federal district court, but rather through the state’s system for enforcing educational rights under the IDEA. In Iowa, a due process complaint is filed with the Iowa Department of Education, and heard by an administrative law judge in a formal proceeding that is much like a trial. At the hearing, both the parents and the school district present arguments and evidence.

When parents file a due process complaint, they are, in effect, suing the school district to enforce their child’s legal right to a free, appropriate, public education. Among the specific kinds matters they may ask the judge to address are:

The current IEP is not meeting the child’s needs
The IEP is not being implemented as written
The school’s refusal to evaluate the child
The school’s refusal or proposal to initiate or change the child’s identification
The school’s proposal or refusal in regard to the child’s educational placement
Disagreements with IEP Team decisions

5 comments:

  1. I have filed a case in us district court as at the October ESE meeting held without me the guidance counselor marked N/A where my signature should have been and closed the case and it was downhill from there, despite my yearlong verbal and written documented request for records and exceptional education for my child, nothing was produced until I filed my intent to file a lawsuit in May and by then the damage was done. Due to the their discrimination and the subsequent media publicity, I lost my temporary housing, job and was forced to move out of state and return to my mother's home. My child was an incoming 6th grader, stay put provision having just been tested and diagnosed with Auditory Processing Disorder. Previous to this he has asthma and food analphylaxis and hearing loss. I represent myself and we are in discovery phase.

    I am sure the court will soon grant the school district's motion to dismiss but I filed leave to amend my response with legal citations.

    Ideas, thoughts, suggestions? I cannot find representation.

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    1. Generally, speaking, under special education law, when a parent moves their child out of a school district to a different school district or school in a different state, the parent loses the right to file a special education complaint against the child's former school district. I don't know what state you're living in, but for advice for your specific situation, you should be adivsed by an attorney licensed in that state. You might want to contact the Department of Education in that state and ask for the names of attorneys who represent parents in special education matters.

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    4. The large number of hours involved in representing a client in a due process hearing, and consequent fees, are among the reasons I prefer to resolve disputes through mediation when at all possible. With respect to retainers, the realities of self-employment and practicing law include additional taxes, and substantial overhead costs essential for practice. Speaking on my own behalf, those expenses, combined with the value of my knowledge and expertise in special education law and disabilities, and my reasonable need to financially rely on my clients' promises to pay the fees set out in the fee agreements I give them, support the amount of the retainer fees stated in those agreements.

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