The Child and Family Law Center: Advocating for the Legal Rights of Children for over 25 years
What does it take to win a Due Process Hearing?
A due process hearing is one of the mechanisms for resolving disputes regarding special education services between parents and school districts. Other less formal options such as mediation or a resolution session are available and typically occur before the parties go to a due process hearing. We make every effort to resolve disputes prior to going to a due process hearing. However, when it is not possible to resolve the issues a due process hearing may be necessary.
Parents often ask what it takes to win a due process hearing and this question is one that I have given a lot of thought to over the years. My answer is based on my experience litigating due process cases for over twenty-six years. Some of the answers may seem obvious while others may not. The following is a compilation of lessons learned as a parent’s attorney in these proceedings.
- The facts support the parent’s claim that their child was denied their rights under the Individuals with Disabilities Education Act (“IDEA”). There are many scenarios that meet this definition. Typically, the student has not received appropriate services, failed to make meaningful progress, or was not identified in a timely manner as a student with a disability. *
- The denial of these rights must rise to a denial of a free, appropriate, public education. Data supporting these arguments is a necessary element in a successful due process hearing.
- A well-organized parent who keeps good records is an asset in a hearing. Preparation from an attorney and collaboration with the family are essential.
- Documentation of the parental concerns to the school and evidence of the district’s failure to respond appropriately are often key elements in a hearing.
- The law supports the legal position that you are taking in the hearing. This is a complicated area of law that requires a knowledge of case law and prior decisions that provide guidance on the legal standards.
- Expert witnesses often determine whether a parent will prevail in a hearing. Parent’s opinions are unlikely without some independent source, to persuade a hearing officer of their position. Choose experts carefully.
- The parent’s willingness to work with the school and to participate in the process even though there may an “agreement to disagree” on what is needed is a factor in hearing officer’s decisions.
- The ability to clearly articulate the relief you want from the hearing officer. Parents in conjunction with their legal counsel should be prepared to state very clearly what they want the school to do.
- At all times parents and legal counsel should behave in a professional manner.
Selected Resources:
http://wwwisbe.net/documents/parents-guide-special-ed-Aug.20pdf
If you are considering a due process action or simply want to discuss your child’s special education rights, please call our office at (312)-640-0500 and ask to speak to Micki Moran or email her at mmoran@grundlaw.com
Yesterday, I traveled to Rockford, Illinois, to give a presentation on Special Education Law to a group of parents of children with autism. The parents had arrived early on a Saturday morning, anxious to hear how to navigate the labyrinth of the special education system. I agreed to trek nearly two hours away on this early morning to give people information that hopefully would help them advocate for their children.