When All Else Fails…Due Process Hearings
Due Process (noun): Citizen’s right to justice; the entitlement of a citizen to proper legal procedures and natural justice. (Encarta Dictionary)
Sometimes parents and schools completely disagree on how to best serve the needs of a student receiving special education services, and even the best attempts at resolution on the local level or mediation just won’t work. A Due Process Hearing is another means available to both parents and schools for resolving the issue. It is a much more formal means of addressing the issue. A Hearing Officer hears the evidence from both sides and acts as both judge and jury.
What Do I Need To Know About Due Process Hearings?
- A request for Due Process must occur within one year of the date you knew or should have known about the problem for which you are requesting the hearing. This timeline does not apply if you didn’t file your request due to the school saying it had resolved the problem or if the school kept information from you that it was required to provide.
- Specific information is required for your request, including what you believe will resolve the problem.
- Due process hearings are independent of the Texas Education Agency. The TEA may not influence the Hearing Officer’s decision in any way.
- The Hearing Officer’s decision is a legal one and can only be challenged through an appeal in state or federal district court.
- You are not required to hire an attorney for a due process hearing, but if you don’t, you will be expected to represent yourself. You will need to be very familiar with the laws and rules that apply to your case.
- You should know that the school district will be represented by an attorney.
- If the Hearing Officer rules in your favor it is possible to get your attorney’s fees covered.
- There are clear timelines for the Due Process Hearing to resolve the conflict including a 30 day resolution period before a 45 day timeline to issue the Final Decision. Due Process is not a quick fix to your conflict.
- Due Process Hearings are confidential. They are open only to those directly involved in the case, or by invitation of the parent.
- The party requesting a Due Process Hearing will be responsible for the “burden of proof.” In other words, if you (the parent) request a Due Process Hearing, you will have to show evidence that proves that it’s more likely than not that you are right and that you should get what you are requesting. When the school district requests Due Process, they are responsible for the burden of proof.
- TEA legal staff can not offer you legal advice or counsel in a Due Process matter. They can provide general information about Due Process Hearings.
- The legally binding written Settlement Agreement is a new requirement of IDEA 2004. The Settlement Agreement makes the decision of the due process hearing enforceable by a federal court of law. It is intended to make sure that the decisions made in due process are honored by both parties.
Who is the Hearing Officer?
Hearing Officers act as the judge and jury of the hearing; this is run much like a court trial. The Hearing Officer does not take the side of either party, and does not work for the TEA. His/her job is to run the hearing, hear both sides of the argument, review the evidence and write a Final Decision and Order. All Special Education Due Process Hearing Officers are licensed Texas attorneys.
But Wait! One Last Chance at Resolution!
A new step in the conflict resolution process was added in The Individuals with Disabilities Education Act of 2004. Once notified that a due process hearing has been filed with TEA, the school district has 15 days to hold a resolution meeting with the parents. The Resolution Session gives both parties a final opportunity to work out their differences without litigation and the obvious legal fee expenses. Detailed information regarding resolution sessions can be found here: http://www.directionservice.org/cadre/resmtgdoc.cfm
What you should know:
- This session must include someone with decision-making power in the school district and members of the ARD/IEP team who are knowledgeable about the issues involved in the due process complaint.
- The school district’s lawyer may not attend unless the parent brings a lawyer.
- The purpose of the meeting is to discuss the parent’s reasons for filing due process and to settle the issues outside of a hearing. If the issues are not resolved within 30 days of the hearing request notice, the case will move forward to a due process hearing.
- Parents and school district may choose to waive the Resolution Session, but must do so in writing. They may also choose to hold mediation instead of the resolution session.
- Failure or refusal to attend the resolution session may result in your case being dismissed.
- If the conflict is settled in the Resolution Session, a Settlement Agreement is written and sent to the Hearing Officer, who will then dismiss the case.
- The Settlement Agreement is a legally binding document.
I’m Headed to Due Process – What Should I Know?
The Due Process Hearing will be run like a court of law. It will typically include an opening statement from each party, the presentation of evidence on both sides, testimony of witnesses, exhibits (documentation that supports the argument), objections, and a closing statement. The hearing will be recorded by a court reporter.
Just as in a court trial, evidence and witnesses must be disclosed on both sides prior to the hearing. Your attendance and participation in the hearing is critical; without it, the hearing officer is likely to rule against you and you may lose your case.
A due process hearing can last anywhere from several minutes to several days. It is usually held at the school district unless you request that it be held elsewhere. There is no guarantee that your request will be granted. Typical dress for a due process hearing is business attire.
The Hearing Officer will make the Final Decision on the case and notify both parties. The decision will be made within the 45 day timeline required for due process cases to be settled. The Final Decision is legally binding, but you do have the right to appeal the decision in state or federal district court.
During a due process hearing and any appeals, your child must stay in the current educational placement unless you and the school agree to change it. If your child is placed in a disciplinary setting, he/she must stay there until a final decision is reached or the term of the disciplinary action ends.
There are many useful resources available from TEA - Due Process Hearing Program (hearing decisions, hearing officers, frequently asked questions, request form, survey, etc.)
The Due Process and Resolution Session Process is also outlined in the Procedural Safeguards document that parents receive at ARD meetings.
You can by call the TEA Special Education Information Center toll-free at 1-855-SPEDTEX (1-855-773-3839) for answers to questions related to parent rights (procedural safeguards) and special education rules and regulations.
TEA offers a very helpful list of FAQs about Due Process Hearings and specific details you may need to know: Due Process Hearing Frequently Asked Questions
The Dept. of Ed. has also compiled a Q & A document regarding Procedural Safeguards and Due Process Procedures for Parents and Children with Disabilities
NICHY also has two documents – The Resolution Process in Detail and The Due Process Hearing in Detail
Questions regarding special education hearing officers and hearing decisions should be directed to TEA’s Office of Legal Services at 512-463-9720. Other helpful forms of information are provided on-line by TEA’s Office of Legal Services:
- Hearing Decisions, January 2004 to present
- List of Hearing Officers, Job Qualifications and Requirements
- Request for Due Process Hearing Form
Join the Special_Ed Hearings Listserv
Information on Complaints and Mediation are also on the Texas Project First website.
to receive e-mail notification of due process hearings postings, go to the TEA ListServ Web page and follow the directions for signing up. Or you may wish to join the Special_Ed Updates Listserv to receive notification of ALL changes to the Special Education Web page (including due process hearings postings).