What is Due Process?


Under IDEA, the school district in which the child is located has the following legal obligations to the child through parents/guardians:

 

  • The district must obtain the consent of the parents/guardians prior to conducting an initial evaluation, or before exiting a student from special education.

 

  • The district must provide written notice to the parents/guardians before initiating, changing, or refusing to change a student’s identification, evaluation, or placement.

 

  • Upon request by the parents/guardians, the district must provide information about independent educational evaluations (IEEs), including where they can be obtained. If IEEs are prepared and presented to the district, the district must consider this information at subsequent IEPs.

 

  • The district cannot implement an IEP without parental/guardian consent.

 

Under IDEA, parents/guardians have the right to file Due Process Complaints when the district fails to comport with the law by failing to follow the above, by not providing the services and supports as agreed to in the IEP, or by otherwise failing to follow the legal requirements of IDEA as to the particular student.  Parents/guardians can also pursue remedy through Due Process if they do not agree with the rest of the IEP team on services, resources, or placement.

 

Procedural Due Process is a three step process:

 

  1. The first step is a Resolution Meeting.  This is an early opportunity to try to reach an agreement about the matters leading up to the filing of the Due Process Complaint.  This is a meeting with the parents/guardians, a representative of the district, and sometime members of the IEP team.  Parents/guardians present the basis of the complaint and their proposed solution, and the district, through its representative, has the opportunity to respond and try to reach a resolution.  (Sometimes, after the exchange of the parties' position papers, it is agreed that the meeting would not be useful, and the requirement of the meeting can be waived.)
  2. Mediation is between the parents/guardians and the district is an informal attempt at resolution utilizing the services of a neutral mediator.  While voluntary, it is highly recommended, as the mediator can often help the parties achieve resolution.  (Some districts and Special Education Local Plan Areas (SELPAs) offer informal Alternative Dispute Resolution (ADR) pre-Due Process filing.  If the parents/guardians agree to this step (which could include a number of different methods to try to reach agreement), they should get a written agreement with the district to toll all statutory time periods for pursuing a subsequent Due Process hearing.)
  3. The Due Process Hearing is the final step in the process. It is, essentially, a trial in an informal setting.  It is held before an Administrative Law Judge provided by the Office of Administrative Hearings (OAH).  The district will have representatives present and will likely call witnesses.  Parents/guardians should be equally prepared to call witnesses to establish their case, and should be prepared to cross-examine the district’s witnesses.  There are many procedural requirements in a Due Process hearing that must be followed.  After the ALJ has taken in all evidence and listened to arguments, the ALJ will render a written finding. 
 
After the rendering of the decision by the ALJ, if either party disagrees with the result, the decision can be appealed in Federal District Court.

Families are NOT required to have legal representation at any point in this process.  However, they have a right to consult with or bring legal counsel if they wish.  Either way, the decisions that result are legally binding on both parties.  

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