Really tough disputes about special education services for your child may wind up in due process. This is a formal process for resolving a special education dispute under the Individuals with Disabilities Education Act (IDEA). Due process starts with a written complaint from the parent and leads up to a hearing, which is like a courtroom trial. The hearing is where you present your child’s case and then get a decision.
Here’s what to expect at a due process hearing.
A due process hearing is like a courtroom trial.
If you’ve watched any legal drama on television, you have a basic idea of what a due process hearing looks like. It’s a formal legal setting where you and the school present your sides of the dispute. Both sides can call witnesses, give evidence and make legal arguments.
“Due process is one of the most complex areas of special education law.”
A trained, impartial hearing officer acts as a judge. The officer listens to both sides and decides the case. Because this is a complex legal process, you may want to have a lawyer represent you. (Many states also allow education advocates to represent parents at hearings.)
The hearing will probably be in a school conference room and last one or two days. The hearing is private, but you have the right—if you want—to open it to the public. Unlike a trial, there won’t be a jury or a court reporter. Instead, the hearing officer will use a tape recorder or other device to record what is said.
Each side presents its case at the hearing.
The exact details of a due process hearing can differ from school district to school district. But the stages are generally the same:
- Pre-hearing disclosure: IDEA requires that at least five days before the hearing, you and the school exchange a list of witnesses. You’ll also exchange copies of any written exhibits. This means evidence such as evaluations, letters and test results. Even informal notes that a witness brings might be considered a written exhibit. Note: If you don’t list a witness or disclose evidence before the hearing, the hearing officer might not allow it to be presented during the hearing.
- Introduction by the hearing officer: The officer starts by introducing everyone and giving an overview of the hearing. The officer may also explain the rules about the kinds of questions you can ask or the types of evidence you can use. Afterward, the officer will go through the list of witnesses and written exhibits and confirm each one. (Time: 15 minutes to one hour)
- Your opening statement: Your lawyer will give a brief opening statement. She’ll talk about your child’s situation, what the evidence will show and why the hearing officer should decide in your favor. (If you don’t have a lawyer or advocate, you’ll make the statement.) (Time: 5‒15 minutes)
- School’s opening statement: The school district’s lawyer will give an opening statement, explaining the school’s side of the dispute. (Time: 5‒15 minutes)
- You present your case: Your lawyer will call your first witness and ask questions. She may show the witness a piece of evidence, such as a report, and ask the witness to talk about it. Just as in a courtroom trial, the school’s lawyer will get a chance to question or cross-examine the witness. When both sides are finished with the witness, your lawyer will call the next witness and the process repeats. Through witnesses and evidence, your lawyer will establish facts supporting your case. (Time: Several hours or more)
- The school district presents its case: After your lawyer has presented your witnesses and evidence, it’s the school district’s turn. The school’s lawyer will call witnesses. Your lawyer will have a chance to cross-examine them. (Time: Several hours or more)
- Your closing statement: Your lawyer will give a summary of your arguments about why you should win the case. This is like the opening statement, but now she’ll be able to talk about what witnesses said and what the evidence shows. (Time: 5‒15 minutes)
- School’s closing statement: The school’s lawyer will also have the chance to give a closing statement. (Time: 5‒15 minutes)
- Adjournment: Following the closing statements, the hearing officer ends or adjourns the hearing. The officer may also ask you and the school to submit legal documents after the hearing that summarize your evidence and arguments. (Time: 5‒15 minutes)
- Post-hearing decision: Within a month or so of the end of the hearing, you’ll receive a written decision from the hearing officer. (The exact time period depends on when other events in due process happened.) The decision will include “findings of fact.” These are the officer’s decisions on any “facts” that you and the school disagreed about.
You or the school may appeal the decision.
The decision may be in your favor, in the school’s favor or a split decision. You or the school may appeal within 90 days of when the decision is issued. The process is different depending on your state. You’ll need a lawyer to file the appeal.
A decision in your favor must be followed.
If you get a decision in your favor and the school doesn’t appeal, the decision stands. The school must follow the decision as soon as possible. Typically, the officer writes what the school must do in the decision. This may range from providing services you requested to evaluating your child again. It may also require that you be reimbursed for expenses.
Due process is one of the most complex areas of special education law. Knowing what to expect at a hearing is important for understanding how to resolve a dispute about your child’s education. Because the laws are so complex and the results of the hearing are so important, you may want to have a lawyer or education advocate help you. To learn more, read tips on how to present your case in a due process hearing.