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Due Process and School Suspension or Expulsion

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  Due Process and School Suspension or Expulsion

The Fifth Amendment to the U.S. Constitution states that no person will be “deprived of life, liberty or property without due process of law .” The 5th Amendment is more famous for containing the right against self-incrimination in criminal proceedings. But it also contains the admonition concerning due process of law. Over the years, courts have determined that this phrase contains within it two precepts. One is that government, federal, state, local, and any agency of government, must operate within the confines of the law and the other is that governments must take actions only within a context of fair procedures. 

The Fourteenth Amendment to the U.S. Constitution is called the “Due Process Clause” and it contains the same words as the Fifth Amendment to the same effect. All levels of government and all agencies of government must operate within the law and make decisions through the use of fair procedures.

The exact definition of procedures that are fair has been the subject of some discussion, but generally governments should make decisions only after giving the affected person notice, an opportunity to be heard, the right to review all of the evidence, the right to cross-examine adverse witnesses, a decision based exclusively on the evidence presented, the opportunity to be represented by counsel, preparation of a record of evidence presented, and a written findings of fact and reasons for its decision. 

The point of requiring that governments provide due process when making decisions is to avoid government actions that are arbitrary and capricious. Procedural due process for students means that decisions affecting students in public educational institutions must include the same elements.

How Does Due Process Apply to Suspension or Expulsion in Schools?

Is due process required prior to an afterschool detention, what rights do i have in a school due process hearing, what happens if i am denied my right to due process, is there ever a time when i can be denied my right to due process, should i contact a lawyer.

Every student has the right to education and public education is an entitlement provided by agencies of local government. Whenever a student is deprived of his right to education through disciplinary actions such as suspension or expulsion, the student is entitled to due process. 

This right to due process includes the right to notice and a fair hearing prior to the administration of long-term suspension or expulsion. Most states have laws regarding school suspension as do local school districts.

Whether full due process is required prior to an after-school detention may vary from state to state and school district to school district. After-school detention involves holding a student after dismissal has occurred for some period of time, usually quite brief. Full due process would probably not be required for after-school detention because it is not so significant as to require a formal hearing with evidence, findings of fact and a ruling. 

Nonetheless, a school would be well advised to inform the student clearly of the violation for which they are being detained. Then the school would certainly want to communicate with the parent about the detention, informing them of the reason and the nature of the detention. 

The school would want to know that the parent does not have any plan for the after-school period on any particular day that would make the detention inappropriate, e.g. a doctor’s appointment. If the parent were to object, the school should certainly discuss the situation with the parent and perhaps agree on an alternative disciplinary move that is acceptable to all parties. And if the student would miss their transportation, e.g. the school bus ride home, then the school would need to provide acceptable alternative transportation.

Understanding the steps of due process in schools in the context of an expulsion or suspension would first require reviewing both the law of the state in which the school is located and then the regulations of the local school district within which the school operates. Both parties would want to conform to state and local rules regarding suspension and expulsion, assuming, of course, that they are fair, and that any rules regarding due process procedures are fair. For example, in Montgomery County Public Schools, a school district in Maryland, the district’s rule limits out-of-school suspension to 10 days only.

If a long-term suspension is contemplated for a student, then usually the student is suspended temporarily until a due process hearing can be conducted. Local rules may determine for how long the student can be suspended before a formal hearing must be held. Usually it is a period of from 5 to 10 days but it could be as long as 30 days 

A basic level of due process should be provided before the temporary suspension, e.g. a meeting including the student, their parents and school administrators, in which the circumstances leading to the suspension and the need for ongoing suspension pending a full hearing are discussed. Of course, the student and their parents must be given an opportunity to be heard at this meeting

The first step in any full hearing has to include notice to the student and their parents of the time, date and place of a hearing. Notice would also include a statement of the rule or rules that were violated and exactly how the rule was violated by the student. All long-term suspensions and expulsions must be reviewed in a formal hearing. The elements of due process at the hearing should include the following: 

• A written notice of what specific rules were violated and how they were violated;
• Notice that the suspension/expulsion will be decided by an impartial, three-person panel;
• Notice to the effect that the student will have the opportunity to present evidence and witnesses on their own behalf;
• Notice that the student will be able to bring legal counsel or a non-attorney advocate;
• Notice that the he hearing will be closed to the public to protect the student’s privacy ;
• Notice that a written decision will be provided and when it will be provided.

Both sides to the dispute might want to be open to discussing alternatives to suspension or expulsion, e.g. reparation, community service, student participation in anger management counseling and the like.

The school would need to devise a plan that allowed the student to keep up with school work. This might be attendance at an alternative location or provision of assignments to the student by their regular teachers during the period of suspension. In any event, the school would want to take steps to ensure that the student is not deprived of their education during the suspension, especially if it is longer than a few days.

If a school official or the board of education denies a student their right to due process in connection with a suspension or expulsion, the student can use this as a defense to a suspension or expulsion decision. A denial of due process procedures is grounds for the reversal of a suspension or expulsion decision of the board of education and for the student’s immediate reinstatement to school.

An expelled or suspended student or their lawyer would review local school district rules and regulations regarding how to appeal a suspension/expulsion decision. A court will look to make sure the student exhausted administrative remedies before turning to the courts for relief. If local authorities cannot rectify the problem with respect to a failure to provide due process, then a student can seek relief in state court .

In an emergency situation, a student could be denied due process, but only temporarily. If the school believes that a student poses an immediate threat to themselves or others, the school staff can suspend the student immediately for up to ten days without giving the student a hearing. Of course, the school would want to communicate with parents about the problem and involve them in decision-making at the earliest possible opportunity.

Full due process procedures must be provided as soon as possible. Only in emergency situations can full due process be skipped following the application of discipline.

If you have questions regarding your due process rights, or if you believe you have been denied your right to due process in school, you may want to contact a government lawyer experienced in education and schools . 

An experienced lawyer will be able to explain your rights to you and represent you in any appeals or administrative hearings that might be necessary. You are most likely to get the best possible outcome if you have an experienced lawyer representing your interests.

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Susan Nerlinger

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Original Author

Susan is a member of the State Bar of California. She received her J.D. degree in 1983 from the University of California, Hastings College of Law and practiced plaintiff’s personal injury law for 8 years in California. She also taught civil procedure in the Paralegal program at Santa Clara University. She then taught English as a foreign language for eight years in the Czech Republic. Most recently, she taught English as a second language for Montgomery County Public Schools in suburban Washington, D.C. Now she devotes her time to writing on legal and environmental topics. You can follow her on her LinkedIn page. Read More

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Due Process in Special Education Under the IDEA Law

Due process is a requirement under the Individuals with Disabilities Education Act (IDEA) that sets forth a regulatory basis for a formal set of policies and procedures to be implemented by schools and districts for children in special education programs.

Due process is intended to ensure that children with learning disabilities and other types of disabilities receive a free appropriate public education. These policies and procedures are typically described in a school district's procedural safeguards statement and local policies. Procedural safeguards are sometimes referred to as parent rights statements.

Due process requirements were set forth in the IDEA with the intention that, if followed, they would help to facilitate appropriate decision making and services for children with disabilities.

Hearings for Aggrieved Parents

Special education due process hearing is one of three main administrative remedies available to parents under the Individuals with Disabilities Education Act (IDEA) and Section 504 of the Rehabilitation Act of 1973 to resolve disagreements between parents and schools regarding children with disabilities.

Due process hearings are administrative hearings that are conducted, in many ways, like a court trial. Hearings may be held on behalf of individual students or groups of students, as in a class-action.

What Happens During a Hearing?

A due process hearing is similar to a hearing in civil court. Either party may be represented by an attorney or may present their cases themselves. The procedures and requirements for a due process hearing may vary depending on your state's specific administrative laws.

Generally, hearings occur because parents believe the child's individual education program (IEP) is not being implemented appropriately, their child has been denied a Free Appropriate Public Education (FAPE), or they disagree with the school about which teaching methods would be appropriate for the child.

In other cases, parents believe the school district has failed to provide the necessary support services, such as  speech,  physical or  occupational therapies , for the child. They may also believe they have tried to work with the district to resolve the problem but have not been successful. Sometimes, the disagreement has become so significant that it requires an impartial hearing officer (IHO) to resolve it.  

How Due Process Hearings Unfold

The plaintiff or complainant gives an opening statement that details his or her allegations against the defendant or respondent. The plaintiff also has the burden of proof.

Both parties are provided an opportunity to state their cases. Each must prove any allegations are facts with adequate, admissible evidence, and supportive documentation.

Common types of evidence include the child's cumulative records and confidential special education files; referrals for assessment;  assessment reports from the school or private evaluators. The child's  IEP  goals and objectives, progress reports; discipline reports, such as suspension and expulsion documentation; and attendance and grade reports; may also be evidence.

Both parties may prepare briefs to support their positions to submit to the IHO for consideration. Briefs typically include background information on issues involved with the case. For example, a parent of a child with autism may submit a brief detailing the effectiveness of  augmentative communication.

Each party may subpoena witnesses to testify in person or via affidavit or deposition. Parties are given the opportunity to cross-examine any witnesses who testify during the hearing.

The hearing officer listens to the case presented by the parties and issues a formal decision based on case law. IHOs may rely on existing administrative laws, binding precedent and persuasive precedent to form their decisions on the matter.

Both parties have the option of appealing the ruling if they can present reasonable evidence that the hearing officer has made an error or that additional evidence has surfaced that may affect the outcome of the case.

Other Grievance Procedures

Parents may also pursue other grievance procedures. For example, they can seek an informal resolution to the problem by speaking with the principal or manager of the child's school, the special education administrator or a Section 504 administrator.

Additionally, they can file a complaint with the local board of education through the district superintendent or manager or file an IDEA formal complaint with the state's department of education. Some parents choose to file a Section 504 complaint with the U.S. Department of Education's Office of Civil Rights.

Lastly, they can request mediation from the state's department of education. Because due process hearings can be a lengthy and stressful process for all parties involved, pursuing other forms of resolution may be beneficial.

Lipkin PH, Okamoto J; Council on Children with Disabilities; Council on School Health. The Individuals With Disabilities Education Act (IDEA) for children with special educational needs .  Pediatrics . 2015;136(6):e1650‐e1662. doi:10.1542/peds.2015-3409

U.S. Department of Education. Individuals With Disabilities Act. Section 1415 (f) .

U.S. Department of Education. Parent and educator resource guide to Section 504 in public elementary and secondary schools .

U.S. Department of Education. Office for Civil Rights. How the Office for Civil Rights handles complaints .

U.S. Department of Education. Individuals with Disabilities Education Act. Section 300.506 Mediation .

By Ann Logsdon Ann Logsdon is a school psychologist specializing in helping parents and teachers support students with a range of educational and developmental disabilities. 

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  Understanding IEP Due Process

IEP due process is protected under the Individuals with Disabilities Education Act, (IDEA)  and provides parents with the right to resolve disputes with your school district.  There are two ways to resolve disputes, mediation and a due process hearing .

WHAT is MEDIATION?

During mediation, you and a representative of the school district meet with a neutral third party who then tries to help you reach an agreement.  The mediator has no authority to make a decision. Their job is to help you and the school district come up with a mutually agreed upon decision with regards to your dispute . You are not required to mediate but it can be a very good way to resolve a dispute. Each state has a list of mediators who are assigned cases on a random basis and there is usually no cost.

WHAT is an IEP DUE PROCESS HEARING?

If you cannot reach a decision through mediation, or if you prefer not to mediate you can request a due process hearing . Here, you and the school district present written evidence about the disputed issue and witnesses testify before a hearing officer. If you do not agree with the outcome of the hearing, you can appeal the decision all the way to state or federal court.

Usually, disputed issues revolve around parts of the IEP that that could not be agreed upon. If the school district has violated a legal rule, such as failing to hold an IEP meeting, conduct an evaluation, meet a time limit or implement the IEP, this is addressed through the complaint process, not due process.  I EP due process disputes are usually centered around disagreements over the following:

• A child's evaluation
• A child's eligibility (one party thinks a child qualifies for services, while another does not).
• A child's placement (each side disagrees on the child's programs and placement).
• The methodology used to assess a child (many parents want outside evaluations to determine eligibility, but the school must conduct the evaluation).
• Related services like aides and specialists (disagreements with aides, services, specialists and what is deemed necessary by the IEP team).
• Changes to a child's IEP program
• Suspension or expulsion of a child

IDEA requires you to formally file for IEP due process within two years after you know of the dispute. If you do not file within two years, you lose your rights.  During the hearing process, your child is entitled to remain in their current placement until you reach an agreement with the school, settle the matter through mediation or get a court decision.

• Using a lawyer or special education advocate during due process is within your rights as a parent and may increase your chances of success. However, legal costs can be considerable and an attorney may spend 10-20 hours preparing for the hearing.   
• The school district does not have to pay your legal fees but during mediation, you can ask the school district, as part of your proposed settlement, to pay for any fees you have accumulated.
• If you go to hearing and you win your case, you will be entitled to reimbursement of your attorney’s fees. If you lose the hearing you are responsible for your own attorney fees but you will not have to pay the school district’s attorney fees. If a parent brings an attorney to a resolution meeting, the school district may also bring an attorney.
• There are many non-attorney advocates who are quite skilled in due process and their fees are usually lower then a lawyer. But, you are not entitled to reimbursement of an advocate’s fees if you prevail in a hearing. 

You must formally request IEP due process in order for a mediation or a fair hearing to be scheduled. You must provide specific written information about the dispute to initiate the process. There can be no hearing or mediation until you complete this first step.

You must provide written notice to the school district AND send a copy to the state department of education branch responsible for special education . Your written request must include:

1. Your name and address 2. Your child’s name and address 3. The name of your child’s school 4. A description of the disputed issue 5. Your desired resolution 6. Whether you want mediation or go directly to the hearing process.

Filing a request for a hearing should be considered a last resort since collaborating with your school district is always the best option. 

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Introduction.

The Constitution states only one command twice. The Fifth Amendment says to the federal government that no one shall be "deprived of life, liberty or property without due process of law." The Fourteenth Amendment , ratified in 1868, uses the same eleven words, called the Due Process Clause, to describe a legal obligation of all states. These words have as their central promise an assurance that all levels of American government must operate within the law ("legality") and provide fair procedures. Most of this article concerns that promise. We should briefly note, however, three other uses that these words have had in American constitutional law.

Incorporation

The Fifth Amendment's reference to “due process” is only one of many promises of protection the Bill of Rights gives citizens against the federal government. Originally these promises had no application at all against the states; the Bill of Rights was interpreted to only apply against the federal government, given the debates surrounding its enactment and the language used elsewhere in the Constitution to limit State power. (see Barron v City of Baltimore (1833)). However, this changed after the enactment of the Fourteenth Amendment and a string of Supreme Court cases that began applying the same limitations on the states as the Bill of Rights. Initially, the Supreme Court only piecemeal added Bill of Rights protections against the States, such as in Chicago, Burlington & Quincy Railroad Company v. City of Chicago (1897) when the court incorporated the Fifth Amendment's Takings Clause into the Fourteenth Amendment. The Court saw these protections as a  function of the Due Process Clause of the Fourteenth Amendment only, not because the Fourteenth Amendment made the Bill of Rights apply against the states. Later, in the middle of the Twentieth Century, a series of Supreme Court decisions found that the Due Process Clause "incorporated" most of the important elements of the Bill of Rights and made them applicable to the states. If a Bill of Rights guarantee is "incorporated" in the "due process" requirement of the Fourteenth Amendment, state and federal obligations are exactly the same. For more information on the incorporation doctrine, please see this Wex Article on the Incorporation Doctrine . 

Substantive due process

The words “due process” suggest a concern with procedure rather than substance, and that is how many—such as Justice Clarence Thomas, who wrote "the Fourteenth Amendment’s Due Process Clause is not a secret repository of substantive guarantees against unfairness" —understand the Due Process Clause. However, others believe that the Due Process Clause does include protections of substantive due process—such as Justice Stephen J. Field, who, in a dissenting opinion to the Slaughterhouse Cases wrote that "the Due Process Clause protected individuals from state legislation that infringed upon their ‘privileges and immunities’ under the federal Constitution” (see this Library of Congress Article:  https://www.loc.gov/exhibits/magna-carta-muse-and-mentor/due-process-of-law.html ) 

Substantive due process has been interpreted to include things such as the right to work in an ordinary kind of job, marry, and to raise one's children as a parent. In Lochner v New York (1905), the Supreme Court found unconstitutional a New York law regulating the working hours of bakers, ruling that the public benefit of the law was not enough to justify the substantive due process right of the bakers to work under their own terms. Substantive due process is still invoked in cases today, but not without criticism (See this Stanford Law Review article to see substantive due process as applied to contemporary issues).

The promise of legality and fair procedure

Historically, the clause reflects the Magna Carta of Great Britain, King John's thirteenth century promise to his noblemen that he would act only in accordance with law (“legality”) and that all would receive the ordinary processes (procedures) of law. It also echoes Great Britain's Seventeenth Century struggles for political and legal regularity, and the American colonies' strong insistence during the pre-Revolutionary period on observance of regular legal order. The requirement that the government function in accordance with law is, in itself, ample basis for understanding the stress given these words. A commitment to legality is at the heart of all advanced legal systems, and the Due Process Clause is often thought to embody that commitment.

The clause also promises that before depriving a citizen of life, liberty or property, the government must follow fair procedures. Thus, it is not always enough for the government just to act in accordance with whatever law there may happen to be. Citizens may also be entitled to have the government observe or offer fair procedures, whether or not those procedures have been provided for in the law on the basis of which it is acting. Action denying the process that is “due” would be unconstitutional. Suppose, for example, state law gives students a right to a public education, but doesn't say anything about discipline. Before the state could take that right away from a student, by expelling her for misbehavior, it would have to provide fair procedures, i.e. “due process.”

How can we know whether process is due (what counts as a “deprivation” of “life, liberty or property”), when it is due, and what procedures have to be followed (what process is “due” in those cases)? If "due process" refers chiefly to procedural subjects, it says very little about these questions. Courts unwilling to accept legislative judgments have to find answers somewhere else. The Supreme Court's struggles over how to find these answers echo its interpretational controversies over the years, and reflect the changes in the general nature of the relationship between citizens and government.

In the Nineteenth Century government was relatively simple, and its actions relatively limited. Most of the time it sought to deprive its citizens of life, liberty or property it did so through criminal law, for which the Bill of Rights explicitly stated quite a few procedures that had to be followed (like the right to a jury trial) — rights that were well understood by lawyers and courts operating in the long traditions of English common law. Occasionally it might act in other ways, for example in assessing taxes. In Bi-Metallic Investment Co. v. State Board of Equalization (1915), the Supreme Court held that only politics (the citizen's “power, immediate or remote, over those who make the rule”) controlled the state's action setting the level of taxes; but if the dispute was about a taxpayer's individual liability, not a general question, the taxpayer had a right to some kind of a hearing (“the right to support his allegations by arguments however brief and, if need be, by proof however informal”). This left the state a lot of room to say what procedures it would provide, but did not permit it to deny them altogether. 

Distinguishing due process 

Bi-Metallic established one important distinction: the Constitution does not require “due process” for establishing laws; the provision applies when the state acts against individuals “in each case upon individual grounds” — when some characteristic unique to the citizen is involved. Of course there may be a lot of citizens affected; the issue is whether assessing the effect depends “in each case upon individual grounds.” Thus, the due process clause doesn't govern how a state sets the rules for student discipline in its high schools; but it does govern how that state applies those rules to individual students who are thought to have violated them — even if in some cases (say, cheating on a state-wide examination) a large number of students were allegedly involved.

Even when an individual is unmistakably acted against on individual grounds, there can be a question whether the state has “deprive[d]” her of “life, liberty or property.” The first thing to notice here is that there must be state action. Accordingly, the Due Process Clause would not apply to a private school taking discipline against one of its students (although that school will probably want to follow similar principles for other reasons).

Whether state action against an individual was a deprivation of life, liberty or property was initially resolved by a distinction between “rights” and “privileges.” Process was due if rights were involved, but the state could act as it pleased in relation to privileges. But as modern society developed, it became harder to tell the two apart (ex: whether driver's licenses, government jobs, and welfare enrollment  are "rights" or a "privilege." An initial reaction to the increasing dependence of citizens on their government was to look at the seriousness of the impact of government action on an individual, without asking about the nature of the relationship affected. Process was due before the government could take an action that affected a citizen in a grave way.

In the early 1970s, however, many scholars accepted that “life, liberty or property” was directly affected by state action, and wanted these concepts to be broadly interpreted. Two Supreme Court cases involved teachers at state colleges whose contracts of employment had not been renewed as they expected, because of some political positions they had taken. Were they entitled to a hearing before they could be treated in this way? Previously, a state job was a “privilege” and the answer to this question was an emphatic “No!” Now, the Court decided that whether either of the two teachers had "property" would depend in each instance on whether persons in their position, under state law, held some form of tenure. One teacher had just been on a short term contract; because he served "at will" — without any state law claim or expectation to continuation — he had no “entitlement” once his contract expired. The other teacher worked under a longer-term arrangement that school officials seemed to have encouraged him to regard as a continuing one. This could create an “entitlement,” the Court said; the expectation need not be based on a statute, and an established custom of treating instructors who had taught for X years as having tenure could be shown. While, thus, some law-based relationship or expectation of continuation had to be shown before a federal court would say that process was "due," constitutional “property” was no longer just what the common law called “property”; it now included any legal relationship with the state that state law regarded as in some sense an “entitlement” of the citizen. Licenses, government jobs protected by civil service, or places on the welfare rolls were all defined by state laws as relations the citizen was entitled to keep until there was some reason to take them away, and therefore process was due before they could be taken away. This restated the formal “right/privilege” idea, but did so in a way that recognized the new dependency of citizens on relations with government, the “new property” as one scholar influentially called it.

When process is due

In its early decisions, the Supreme Court seemed to indicate that when only property rights were at stake (and particularly if there was some demonstrable urgency for public action) necessary hearings could be postponed to follow provisional, even irreversible, government action. This presumption changed in 1970 with the decision in Goldberg v. Kelly , a case arising out of a state-administered welfare program. The Court found that before a state terminates a welfare recipient's benefits, the state must provide a full hearing before a hearing officer, finding that the Due Process Clause required such a hearing.

What procedures are due

Just as cases have interpreted when to apply due process, others have determined the sorts of procedures which are constitutionally due. This is a question that has to be answered for criminal trials (where the Bill of Rights provides many explicit answers), for civil trials (where the long history of English practice provides some landmarks), and for administrative proceedings, which did not appear on the legal landscape until a century or so after the Due Process Clause was first adopted. Because there are the fewest landmarks, the administrative cases present the hardest issues, and these are the ones we will discuss.

The Goldberg Court answered this question by holding that the state must provide a hearing before an impartial judicial officer, the right to an attorney's help, the right to present evidence and argument orally, the chance to examine all materials that would be relied on or to confront and cross-examine adverse witnesses, or a decision limited to the record thus made and explained in an opinion. The Court's basis for this elaborate holding seems to have some roots in the incorporation doctrine.

Many argued that the Goldberg standards were too broad, and in subsequent years, the Supreme Court adopted a more discriminating approach. Process was “due” to the student suspended for ten days, as to the doctor deprived of his license to practice medicine or the person accused of being a security risk; yet the difference in seriousness of the outcomes, of the charges, and of the institutions involved made it clear there could be no list of procedures that were always “due.” What the Constitution required would inevitably be dependent on the situation. What process is “due” is a question to which there cannot be a single answer.

A successor case to Goldberg, Mathews v. Eldridge , tried instead to define a method by which due process questions could be successfully presented by lawyers and answered by courts. The approach it defined has remained the Court's preferred method for resolving questions over what process is due. Mathews attempted to define how judges should ask about constitutionally required procedures. The Court said three factors had to be analyzed:

• First, the private interest that will be affected by the official action;
• Second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards;
• Finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

Using these factors, the Court first found the private interest here less significant than in Goldberg. A person who is arguably disabled but provisionally denied disability benefits, it said, is more likely to be able to find other "potential sources of temporary income" than a person who is arguably impoverished but provisionally denied welfare assistance. Respecting the second, it found the risk of error in using written procedures for the initial judgment to be low, and unlikely to be significantly reduced by adding oral or confrontational procedures of the Goldberg variety. It reasoned that disputes over eligibility for disability insurance typically concern one's medical condition, which could be decided, at least provisionally, on the basis of documentary submissions; it was impressed that Eldridge had full access to the agency's files, and the opportunity to submit in writing any further material he wished. Finally, the Court now attached more importance than the Goldberg Court had to the government's claims for efficiency. In particular, the Court assumed (as the Goldberg Court had not) that "resources available for any particular program of social welfare are not unlimited." Thus additional administrative costs for suspension hearings and payments while those hearings were awaiting resolution to persons ultimately found undeserving of benefits would subtract from the amounts available to pay benefits for those undoubtedly eligible to participate in the program. The Court also gave some weight to the "good-faith judgments" of the plan administrators what appropriate consideration of the claims of applicants would entail.

Matthews thus reorients the inquiry in a number of important respects. First, it emphasizes the variability of procedural requirements. Rather than create a standard list of procedures that constitute the procedure that is "due," the opinion emphasizes that each setting or program invites its own assessment. The only general statement that can be made is that persons holding interests protected by the due process clause are entitled to "some kind of hearing." Just what the elements of that hearing might be, however, depends on the concrete circumstances of the particular program at issue. Second, that assessment is to be made concretely and holistically. It is not a matter of approving this or that particular element of a procedural matrix in isolation, but of assessing the suitability of the ensemble in context.

Third, and particularly important in its implications for litigation seeking procedural change, the assessment is to be made at the level of program operation, rather than in terms of the particular needs of the particular litigants involved in the matter before the Court. Cases that are pressed to appellate courts often are characterized by individual facts that make an unusually strong appeal for proceduralization. Indeed, one can often say that they are chosen for that appeal by the lawyers, when the lawsuit is supported by one of the many American organizations that seeks to use the courts to help establish their view of sound social policy. Finally, and to similar effect, the second of the stated tests places on the party challenging the existing procedures the burden not only of demonstrating their insufficiency, but also of showing that some specific substitute or additional procedure will work a concrete improvement justifying its additional cost. Thus, it is inadequate merely to criticize. The litigant claiming procedural insufficiency must be prepared with a substitute program that can itself be justified.

The Mathews approach is most successful when it is viewed as a set of instructions to attorneys involved in litigation concerning procedural issues. Attorneys now know how to make a persuasive showing on a procedural "due process" claim, and the probable effect of the approach is to discourage litigation drawing its motive force from the narrow (even if compelling) circumstances of a particular individual's position. The hard problem for the courts in the Mathews approach, which may be unavoidable, is suggested by the absence of fixed doctrine about the content of "due process" and by the very breadth of the inquiry required to establish its demands in a particular context. A judge has few reference points to begin with, and must decide on the basis of considerat­ions (such as the nature of a government program or the probable impact of a procedural requirement) that are very hard to develop in a trial.

While there is no definitive list of the "required procedures" that due process requires, Judge Henry Friendly generated a list that remains highly influential, as to both content and relative priority:

• An unbiased tribunal.
• Notice of the proposed action and the grounds asserted for it.
• Opportunity to present reasons why the proposed action should not be taken.
• The right to present evidence, including the right to call witnesses.
• The right to know opposing evidence.
• The right to cross-examine adverse witnesses.
• A decision based exclusively on the evidence presented.
• Opportunity to be represented by counsel.
• Requirement that the tribunal prepare a record of the evidence presented.
• Requirement that the tribunal prepare written findings of fact and reasons for its decision.

This is not a list of procedures which are required to prove due process, but rather a list of the kinds of procedures that might be claimed in a "due process" argument, roughly in order of their perceived importance.

The original text of this article was written and submitted by Peter Strauss

[Last updated in October of 2022 by the Wex Definitions Team ]

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Requesting a Due Process Hearing

Current as of October 2021 En español | In Spanish

There are times when you, as a parent, may want to communicate in writing with your child’s school about some problem or concern with your child’s education or well-being. This page presents a model letter or email you might write to request a due process hearing as an approach to resolving a dispute with your child’s school.

• Discussion (Keep scrolling)

General letter-writing tips

• Model letter

  ____________________

Due process is one approach that parents and schools can use to resolve disagreements. Basically, in a due process hearing, you and the school present evidence before an impartial third person called a hearing officer. The hearing officer then decides how to resolve the problem.

You have the right to request a due process hearing on any matter related to:

• your child’s identification as a “child with a disability,”
• his or her evaluation,
• his or her educational placement, and
• the special education and related services that the school provides to your child.

When would I request a due process hearing?

Some reasons why a parent might file for due process include:

• The school refuses to evaluate your child.
• You disagree with the eligibility decision.
• You disagree with the services or goals in the IEP.
• The school refuses to provide a related service, modification, or supplementary aid you think your child needs.
• You disagree with the placement decision.

Generally speaking, when the family and school disagree, it is important for both sides to first discuss their concerns and try to reach a compromise. Remember, the goal is to provide an appropriate education for your child. There are many options when deciding what an appropriate education is, and some trial and error may be necessary to develop a successful program for your child.

However, if you and the school have fully communicated, understand each other’s positions, tried such strategies as IEP meetings and/or Mediation , and you still disagree, you may want to request a due process hearing. A due process hearing is a formal proceeding. As was said above, you and the school system share your information and concerns in front of a qualified, impartial hearing officer.

The school system will probably be represented by an attorney. While parents are not required to have an attorney, you are strongly encouraged to have one. Your state’s Parent Training and Information (PTI) center will have information on special education attorneys in your area. The school system must also tell you about any free or low-cost legal (and other relevant) services available in the area if you request a due process hearing or if you simply request this information.

In the due process hearing, the hearing officer will listen to both you and the school system. The hearing officer will then make a decision about how to resolve the conflict, based upon the evidence and the requirements of law.

Back to top

How do I request a due process hearing?

The first step is to file a due process complaint. This complaint must be signed and must include specific information:

• the name of your child;
• the address of your child’s residence;
• the name of your child’s school;
• a description of the problem, including facts relating to the problem; and
• how you would resolve the problem, to the extent that a solution is known and available to you as parents.

Information in the complaint must be kept confidential. Each state is required to have a model form to help parents write a due process complaint. You are not required to use the model form. However, if you want, you should be able to get a copy of this model from your school system or State Education Agency.

To whom do I send the complaint?

Your school district must have procedures in place so that you can file your complaint. You’ll need to ask what those are—the Director of Special Education in your school or district will know. This will include the person or office with whom you need to file your complaint. IDEA also requires that you provide a copy of your complaint to the other party (in this case, the school system) and to the State Education Agency.

What happens next?

  If your complaint includes the required information and is deemed “sufficient,” quite a lot happens next!

First, within 10 days of receiving your complaint, the other party (i.e., the school system) will send you a response that specifically addresses the issues raised in your complaint. IDEA also requires that the school system convene a resolution meeting within 15 days of receiving notice that you have filed a due process complaint. The purpose of the resolution meeting is for you as parents to discuss your due process complaint and the facts that form the basis of that complaint, so that the school system has the opportunity to resolve the dispute without holding a due process hearing.

There’s a lot to know about due process complaints, resolution meetings, and due process hearings, far too much to explain it all here. We refer you to the detailed information available on our website, beginning at: https://www.parentcenterhub.org/dueprocess/

When writing any business letter, it is important to keep it short and to the point. First, start by asking yourself the following questions and state the answers in your letter:

•  Why am I writing?
• What are my specific concerns?
• What are my questions?
• What would I like the person to do about this situation?
• What sort of response do I want: a letter, a meeting, a phone call, or something else?

Each letter you write should include the following basic information:

• Put the date on your letter.
• Give your child’s full name and the name of your child’s main teacher or current class placement.
• Say what you want, rather than what you don’t want. Keep it simple.
• Give your address and a daytime phone number where you can be reached.
• Always end your letter with a “thank you.”

 What are some other tips to keep in mind?

  You want to make a good impression so that the person reading your letter will understand your request and say “yes.” Remember, this person may not know you, your child, or your child’s situation. Keep the tone of your letter pleasant and businesslike. Give the facts without letting anger, frustration, blame, or other negative emotions creep in. Some letter-writing tips include:

• After you write your first draft, put the letter aside for a day or two. Then look at it again and revise it with fresh eyes.
• Read your letter as though you are the person receiving it. Is your request clear? Have you included the important facts? Does your letter ramble on and on? Is it likely to offend, or is the tone businesslike?
• Have someone else read your letter for you. Is your reason for writing clear? Can the reader tell what you are asking for? Would the reader say “yes” if he or she received this letter? Can your letter be improved?
• Use spell check and grammar check on the computer. Or ask someone reliable to edit your letter before you send it.
• Keep a copy for your records.

Back to top __________________

Model Letter

Today’s Date (include month, day, and year)

Your Name Street Address City, State, Zip Code Daytime telephone number

Name of person to whom you’re writing Title Street Address City, State, Zip Code

Dear (Person’s name),

I am writing to request a due process hearing on behalf of my child, (child’s name), whose address is (give your child’s address, even if it is the same as your own). (Child’s name) attends (name of school).

I have met with school personnel in an effort to resolve our differences concerning my son’s/daughter’s (IEP, placement, testing, or . . . ) and have been unable to do so. The nature of our disagreement is as follows:

Explain the problem with BRIEF statements of fact.

Consider listing the facts with bullets or numbers.

An acceptable resolution of the problem would include . . . (To the extent that you know how you want the disagreement to be resolved, state these facts here, again bulleting or numbering the items if possible.)

  Please advise me as soon as possible as to the date and time of this hearing so that I can make the necessary arrangements. My daytime telephone number is (give your phone number).

I also request that this hearing be (open/closed) to persons other than those directly involved. (Child’s name) will/will not attend the hearing. Thank you for your assistance.

cc: your child’s principal your advocate or attorney

Note:  The “cc:” at the bottom of the letter means you are sending a copy of your letter to the people listed after the cc.

Highly Rated Resource!   This resource was reviewed by 3-member panels of Parent Center staff working independently from one another to rate the quality, relevance, and usefulness of CPIR resources. This resource was found to be of “High Quality, High Relevance, High Usefulness” to Parent Centers. ___________________________________________________

Would you like to read another letter?

Discussing a problem https://www.parentcenterhub.org/problem/

Requesting a copy of your child’s records https://www.parentcenterhub.org/records-2/

Requesting an evaluation for special education services https://www.parentcenterhub.org/evaluation-2/

Requesting an independent evaluation https://www.parentcenterhub.org/iee-3/

Requesting a meeting to review your child’s Individualized Education Program (IEP) https://www.parentcenterhub.org/iep-2/

Requesting a change in your child’s placement https://www.parentcenterhub.org/placement-2/

Informing the school that you intend to place your child in a private school at public expense https://www.parentcenterhub.org/private/

Requesting prior written notice https://www.parentcenterhub.org/notice/

Requesting mediation to resolve a conflict https://www.parentcenterhub.org/mediation-2/

Requesting a due process hearing to resolve a conflict (You’re already here.)

Filing a complaint with the State to resolve a conflict https://www.parentcenterhub.org/statecomplaint-2/

What is a special education due process hearing?

The Special Education Due Process Hearing is a legal process you can use as the last resort when you disagree with the school. Learn more.

The Special Education Due Process Hearing is a legal process you can use as the last resort when you disagree with the school about special education.  

This is a formal process and is like a lawsuit. A trained, neutral Court officer will listen to both sides, review the evidence, and then make a decision.   

What should happen before I think about a Due Process hearing?

Before you take this step, go through the other steps of Special Education Dispute Resolution: meet with the school again, ask for a facilitated IEP, ask for mediation, and file a complaint with the school district. If you can resolve your conflict through those means, it will be much easier.

Consider getting help from a lawyer. It’s not required, but it is strongly recommended. The special education laws are complicated. A lawyer can help you to prepare a strong case and get what is best for your child. See this section below on getting legal help.    

Either you, your lawyer, or the school can start this process. 

How to file for a Special Education Due Process Hearing

• Find the Due Process instructions and Hearing Request form. You can download them from your state’s Department of Education website, find the details in the Procedural Safeguards manual, or ask the school principal or IEP team.
• Fill out the Hearing Request Form. Be sure to carefully describe your concerns and what you think the solutions should be. You must list all of your concerns here, because the hearing can only address the issues you list on this form.
• Send the signed written request to the special education director or superintendent of the school district.
• Make a copy of the form for yourself and keep it somewhere safe, like your IEP Binder .
• Send a copy to your state’s educational complaint office.

The request must be made within 1 year of the date that you knew of–-or should have known of-–the action you are complaining about.

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

The Hearing process is run by the Louisiana Department of Education Legal Division. The Hearing Officer is called an Administrative Law Judge (ALJ).

Due Process Hearing Instructions . The Hearing Request Form is also on this page.

Send copy of form to:

Louisiana Department of Education, Attn: Legal Division

P. O. Box 94064

Baton Rouge, LA 70804-9064

Louisiana’s Procedural Safeguards (Educational Rights) See pages 15-20 for more on the Hearing and Dispute Resolution process.

Massachusetts:

The Hearing process is run by the Bureau of Special Education Appeals (BSEA), and is also called a BSEA Hearing.

How to file for a Due Process Hearing : Includes link to form and also how to file by mail, fax or in person.

Hearing Request Form

What happens at a BSEA Hearing

What happens after you request a Due Process Hearing?

The office will assign you a Hearing Officer, who will guide you through the process and represent you at the meeting. This officer will bring everyone together to clarify the problem, schedule the hearing, and try to find other resolution options before the hearing.

They may suggest a pre-hearing conference to see if you can all resolve the disagreement before you continue with the hearing. If you have a lawyer, they can come with you.

You may talk about:

• Clarifying the issues
• Areas where you agree and disagree
• Ideas for solutions
• Timing for exchanging information and documents
• Details for the hearing: scheduling, length, and getting an interpreter if needed

If English is not your first language, you have the right to a qualified interpreter. You must let the team know before the meeting. Interpreting services are free for families.

Have the Resolution Meeting with the school

• The school district is required to set up a resolution meeting with you within 15 calendar days of getting your hearing request. This is one step toward reaching an agreement. 
• The school district has 30 calendar days after your hearing request, to work with you to reach an agreement before a hearing takes place.
• You are required to be at the resolution meeting unless you and the school district both agree in writing not to have it. You can agree not to have the resolution meeting if you have already reached a solution OR you are continuing the mediation process .
• If the school district is not willing to have a resolution meeting and it has been more than 15 calendar days since they got your request, then you can ask the hearing officer to move forward with the Due Process Hearing. 

The resolution meeting may result in a Settlement Agreement, or you will all continue with the hearing. 

A Settlement Agreement is a statement of what you agreed to. If you change your mind, you and the school have 3 business days to cancel it. After that, the agreement is official. They can enforce this in court if you end up in a lawsuit.

You should always have an attorney review this agreement. The legal language can be confusing and you want to make sure you don’t waive any of your rights.

How to prepare for the Due Process Hearing

It’s important to be ready for your hearing. This means having your documents ready,  and knowing your rights and the different ways you can present your case.

At any due process hearing, you have the right to:

• Bring a lawyer or advocate to advise and represent you.
• Bring your child to the hearing.
• Present evidence like documents and reports.
• Have witnesses come to the hearing and answer questions. You also have the right to issue a subpoena, which is a document that requires them to come.
• See any evidence that will be used at the hearing at least 5 business days ahead of time (If you have not seen it ahead of time, you can ask the hearing officer to not allow it).
• This is a word-for-word record of everything people said at the hearing.
• You can get it electronically or on paper.
• It is free, but you must ask for it in writing.

Some things you and your lawyer may do:

• If you request a motion, you must submit a copy to the school. The school has 7 business days to respond. Then, the hearing officer will respond to your request in writing soon afterwards.
• At least 10 days business days before the hearing, you may ask the Education Office to issue a subpoena for anyone you want to speak at the hearing to support your case. This request must be in writing.
• Put the exhibits in a 3-ring binder
• Number each document
• Include a table of contents that explains each document
• Follow the instructions from the Education Office on how to submit your exhibits
• Make a list of all the witnesses who you are planning to have at the hearing.
• Make sure they really know your child so they can accurately talk about your child’s skills, strengths, and abilities.
• Send each witness the time and place so they can be ready.
• Tell the school and hearing officer if there are conflicts with your witnesses’ schedules.

What to expect at the Hearing

It may be slightly different in different courts, but here’s what happens in general:

• The hearing officer will ask if there are any logistical issues. Tell the officer now if there is anything that might affect the flow of the meeting. For example: scheduling conflicts for your witnesses, if you might need a break for medical reasons, if you have any problems with your supporting documents, etc.
• The officer will welcome everyone and read a formal opening statement. The hearing will be recorded.
• The officer will take your documents and put them into the record as official exhibits.
• You and the school will each give opening statements. If you have a lawyer, they will do this for you.
• You will present your witnesses one by one. You or your lawyer will ask them questions. You may also testify yourself. When someone testifies, they will take a formal oath and swear to tell the truth.
• Next, the school or their lawyer will ask your witnesses questions. The hearing officer might also ask questions.
• This process will repeat for the school’s witnesses.
• When all the witnesses are finished, the officer will ask if both sides would like to make a closing statement. Then, the hearing will end.

What happens next?

• They might not make a decision right away. You and the school district will get the decision in the mail, usually about 45 calendar days after the hearing. 
• A hearing officer may grant an extension beyond 45 calendar days if either party requests it.
• This decision is final, unless you or the school appeal it and take it to the state or federal court. Otherwise, both you and the school district must follow the decision.

How do they make the decision?

The decision is based on the federal and state special education laws and regulations.

According to federal law, all children have a right to a Free and Appropriate Public Education (FAPE) in the Least Restrictive Environment (LRE) .

The hearing officer will consider all of the evidence and the testimony of the witnesses. Based on this, they will decide if your child’s special education rights were violated, or if the school district failed to fulfill its obligations to your child.

They may find that your child did not receive a FAPE if they find that the school’s actions:

• Impeded your child’s right to a FAPE
• Significantly impeded your opportunity to participate in the decision-making process, or
• Deprived your child of educational benefits

If you or the school disagrees with the decision, either of you can appeal it to the state or federal court.

• Get help from a lawyer who specializes in special education law. They can help you file the appeal, prepare your case, and represent you in court.
• File your appeal within 90 days of the hearing officer’s decision.

How to get legal help (even if you can’t afford a lawyer) 

You may need to find a lawyer to help you resolve a dispute with the school about special education. This is especially true if you file for a Due Process Hearing.

There are 2 ways to get legal help:

• Get free or low cost legal advice from an advocacy organization.  
• Hire a lawyer to represent you in the process.

Legal Advice:

There are many organizations that help families navigate legal problems with special education. They should be able to give you free advice and maybe free or low cost legal help.

Start with the National Disability Rights Network . Look up the legal advocacy organizations in your state and talk to them first. 

Hiring a lawyer:

It’s best to find one who has lots of experience with special education laws and regulations. 

Choose a lawyer who lists one of these as their specialty:

• Special Education
• Education Law

Be sure to ask in advance about fees. Fees will vary based on each lawyer’s experience and how complex the case is. The organizations you find through the National Disability Rights Network should be able to help you find a lawyer.

Legal advice:

• The Advocacy Center of LA provides free services. Call their hotline at 800-960-7705.
• The Louisiana Civil Justice Center offers a free legal hotline with brief advice and attorney referrals. Call 800-310-7029, Monday-Friday 9am-4pm.
• Louisiana State Bar Legal Education and Assistance Program provides a search directory by parish that includes legal aid organizations. Scroll to the bottom of the page and select your parish.
• The Southeast Louisiana Legal Services provides legal aid to low-income people. Visit their website to find contact information for an office located near you.
• The courts may also provide some legal assistance but there is no guarantee.
• You can contact the Louisiana Dept. of Education and ask if they can help you find free or low-cost legal assistance. 
• Use our Disability Services Finder . Look in the Legal category under Services.
• Search for lawyers in your parish through the Disabilities Assistance Network . This list isn’t comprehensive; the people listed here have asked to be included.
• Check with the Louisiana Bar Association’s Referral Service . In New Orleans you can call 504-561-8828; in Baton Rouge you can call 225-344-9926.
• You can also call the Louisiana Bar Association at 1-800-421-5722 for help finding a lawyer in your area.
• Special Needs Alliance: Louisiana Listings .
• Use our Disability Service Finder . Look in the Legal category under Services.

Reminder: We do not endorse any of the lawyers listed through these resources. We are simply providing links to databases for your reference. Legal fees will vary depending on the complexity of your case.

The organizations below can help you find a lawyer. If you are concerned about costs, ask about free legal help. 

Children’s Law Center of Massachusetts (Lynn)

Phone: (781) 581-1977; (888) 543-5298

Email: [email protected]

Disability Law Center, Inc. (Boston)

Phone: (617) 723-8455, (800) 872-9992, (617) 227-9464 (TTY), (800) 381-0577 (TTY)

Email: [email protected]

Greater Boston Legal Services (Boston)

Phone: (617) 371-1234

Massachusetts Advocates for Children (Boston)

Phone: (617)-357-8431 ext. 3224

Special Needs Advocacy Network, Inc. (North Attleboro)

Phone: (508) 655-7999, 617-388-3638

Email: [email protected]

The Bureau of Special Education Appeals (BSEA) also has information on finding legal help .

As you can see, the Special Education Due Process Hearing is a pretty complicated process. Clearly, it’s best if you can avoid it by using the other forms of Dispute Resolution . But if you need to take this step, follow these guidelines and get good support from a lawyer. Your child’s needs are important, and worth advocating for!  

Learn More:

• Conflict resolution in special education: solving disagreements with the school
• Know your rights – What is IDEA?
• How to advocate for your child with a disability…and get results

More about the Special Education Due Process Hearing

Check out our page: Special Education Hub

Where you will find links to more articles on this topic.

Interested in our other resources for families?

Check out our landing page for families to see more of the topics we cover and learn more about Exceptional Lives.

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The IDEA includes rules of procedure for resolving disputes between parents and schools. These rules include mediation , due process hearings , and appeals to state or federal court. ( Wrightslaw: Special Education Law , page 107-115) A due process hearing is usually a formal, contested, adversarial trial. Special education cases are similar to medical malpractice cases, with battles of expert witnesses, and the emotions of bitterly contested divorce cases with child custody and equitable distribution issues.

Before you request a due process hearing, you should be familiar with the federal statute and regulations and your state special education statute and regulations. You should also read the Rules of Adverse Assumptions . (Chapter 21, Wrightslaw: From Emotions to Advocacy )

How can parents prevail? If you write letters and create a paper trail and you have competent, qualified private experts who can testify about what your child needs, you will be in a good position if a due process hearing is necessary. Articles Advice About the 10-Day Notice Letter to the School . Pete Wright answers questions about what should be included in the parents' 10-day notice letter; article includes links to "Letters to the Stranger" used in his cases.

Anatomy of a Special Education Case . What happens in a special education case?  Read about the case of a young child with autism, from the original due process hearing through decisions from federal court and the U.S. Court of Appeals; this article includes links to pleadings and decisions.

Attorney Manual: Representing the Special Ed Child - For attorneys, advocates, and parents who are preparing for a due process hearing. Crisis! Emergency! Help!   - If you are in a crisis, this article is a "must read" for you. Learn how parents damage their child's case by assuming that they must DO SOMETHING!

The Stress of Due Process by Debbie Larson. Due process hearings are very time consuming and stressful. In this article you'll find some tips about what you can do to turn the situation around first and avoid due process.

First I Read the Facts, Then I Got MAD . Success Story: How we got an appropriate education and avoided due process.

If You Have a Dispute, Litigation is the Last Resort . Never tell a school, or anyone else, that you plan to sue them. There are other ways to resolve parent-school disputes. Depending on the issue, you may continue to negotiate, file a complaint with the state, or request mediation. Litigation is the last resort.

Reverse Due Process, When the School Sues the Parent . Reverse due process hearings are a defensive legal strategy used by school districts motivated by the school’s fear that the parents will prevail on a claim that the school’s IEP did not provide FAPE.

Answers to Questions about Special Education Litigation & Attorney's Fees by Pete Wright, Esq. Out of every ten parents who consult with me, only one needs an attorney . Parents have a disagreement or dispute with the school about their child’s special education program or placement. They don’t know what to do.

Due Process Hearing: From Child's Perspective . Read what it is like to go through a due process hearing - from the child's perspective.

How to Put on a Special Education Case - Minnesota lawyer Sonja Kerr provides advice about tactics and strategy to the lawyer who is handling his or her first special education case.

Understanding Tests and Measurements   - The child has received three years of special education for reading problems. Has the child made progress? Has the child fallen further behind? In special education cases, evidence includes standard scores, percentile ranks, subtest scores, and age and grade equivalent scores.

To successfully negotiate or litigate for appropriate services that provide educational benefit, you need to know how to interpret test scores. To ensure that you have the graphics in this article, print the article from the screen (rather than download it).

Learn More About Tests and Assessments: Educational Progress Graphs - Our Slide Show Will Show You How to Do It!

Download Tests & Measurements Slide Show as a PowerPoint Presentation (204kb)

Whitehead Case: The Inside Story  - The famous $600,000 jury verdict against the Hillsborough Florida school district - what was this case really about? Laura Whiteside, attorney for Andrew Whitehead and his parents, tells the "inside story."

Whitehead Case: Jury Awards $600,000 Damages to Parents - In Whitehead v. Hillsborough , a Florida jury took less than 2 hours before deciding that the school system retaliated against the parents of a child with Downs Syndrome.

Should We Sue the School? I Don't Know What Else to Do by Susan Bruce. Never say anything in an IEP meeting that you are not prepared to do. You should never say anything that you cannot “back up” with data, statistics or documentation. Use this same principal for requests - never ask for things unless you have the data to show that  the request is “appropriate.”

Caselaw Porter v. Bd of Trustees of Manhattan Beach USD (9th Circuit, 2002). Parents of child for whom special education program was ordered by special education hearing officer under Individuals with Disabilities Education Act were not required to seek new hearing before hearing officer or to comply with state’s complaint resolution procedure before suing for alleged failure to fully implement the program. Back to main Topics page

Special Education Action

Children are our priority. Ensuring their needs are met is our goal.

Due Process Timeline

Per §300.500 , each state education agency (SEA) “must ensure that each public agency establishes, maintains, and implements procedural safeguards that meet the requirements of §§ 300.500 through 300.536 “, which includes the due process timeline.

The timeline isn’t stated in one place, so the dates have been pulled from various sections, to provide a one-page rundown of deadlines that follow receipt of a due process complaint.

*Always check your own state regulations and IDEA.

Per 300.508(e)(1) , “if the LEA has not sent a prior written notice under §300.503 to the parent regarding the subject matter contained in the parent’s due process complaint, the LEA must, within 10 days of receiving the due process complaint, send to the parent a response that includes—(i) An explanation of why the agency proposed or refused to take the action raised in the due process complaint; (ii) A description of other options that the IEP Team considered and the reasons why those options were rejected; (iii) A description of each evaluation procedure, assessment, record, or report the agency used as the basis for the proposed or refused action; and (iv) A description of the other factors that are relevant to the agency’s proposed or refused action.”

Per §300.508(f) , “except as provided in paragraph (e) of this section, the party receiving a due process complaint must, within 10 days of receiving the due process complaint, send to the other party a response that specifically addresses the issues raised in the due process complaint.”

15 Days 

Per §300.508(d)(1) , “the due process complaint required by this section must be deemed sufficient unless the party receiving the due process complaint notifies the hearing officer and the other party in writing, within 15 days of receipt of the due process complaint, that the receiving party believes the due process complaint does not meet the requirements in paragraph (b) of this section.â€

Per §300.510(a)(1) , “within 15 days of receiving notice of the parent’s due process complaint, and prior to the initiation of a due process hearing under §300.511 , the LEA must convene a meeting with the parent and the relevant member or members of the IEP Team who have specific knowledge of the facts identified in the due process complaint that—(i) Includes a representative of the public agency who has decision-making authority on behalf of that agency; and (ii) May not include an attorney of the LEA unless the parent is accompanied by an attorney.”

Per §300.510(b)(5) , “if the LEA fails to hold the resolution meeting specified in paragraph (a) of this section within 15 days of receiving notice of a parent’s due process complaint or fails to participate in the resolution meeting, the parent may seek the intervention of a hearing officer to begin the due process hearing timeline.”

Per §300.508(d)(2) , “within five days of receipt of notification under paragraph (d)(1) of this section, the hearing officer must make a determination on the face of the due process complaint of whether the due process complaint meets the requirements of paragraph (b) of this section, and must immediately notify the parties in writing of that determination.â€

6–25 Days

Per §300.508(d)(2)(3) , “a party may amend its due process complaint only if—(i) The other party consents in writing to the amendment and is given the opportunity to resolve the due process complaint through a meeting held pursuant to §300.510 ; or (ii) The hearing officer grants permission, except that the hearing officer may only grant permission to amend at any time not later than five days before the due process hearing begins.

The 6–25 timeframe is determined by taking the 30-day expiration date set forth 300.510(b)(1) —which states, “if the LEA has not resolved the due process complaint to the satisfaction of the parent within 30 days of the receipt of the due process complaint, the due process hearing may occur”—and subtracting the five days referred to in §300.508(d)(2)(3) . Because a parent can state, before the 30-day expiration date, that “the LEA has not resolved the due process complaint to the satisfaction of the parent”, the resolution period could end before the 30-day timeline.

25–30 Days

Per §300.512(a)(3) , “any party to a hearing conducted pursuant to § §300.507 through 300.513 or § §300.530 through 300.534 , or an appeal conducted pursuant to §300.514 , has the right to—prohibit the introduction of any evidence at the hearing that has not been disclosed to that party at least five business days before the hearing.â€

Per §300.512(b) , “at least five business days prior to a hearing conducted pursuant to §300.511(a) , each party must disclose to all other parties all evaluations completed by that date and recommendations based on the offering party’s evaluations that the party intends to use at the hearing.â€

Per 300.510(b)(1) , “if the LEA has not resolved the due process complaint to the satisfaction of the parent within 30 days of the receipt of the due process complaint, the due process hearing may occur.”

Per §300.510(b)(2) , “except as provided in paragraph (c) of this section, the timeline for issuing a final decision under §300.515 begins at the expiration of this 30-day period .” Paragraph (c) referred to in this section states, “ (c)  Adjustments to 30-day resolution period. The 45-day timeline for the due process hearing in §300.515(a) starts the day after one of the following events: (1)  Both parties agree in writing to waive the resolution meeting; (2)  After either the mediation or resolution meeting starts but before the end of the 30-day period, the parties agree in writing that no agreement is possible; (3)  If both parties agree in writing to continue the mediation at the end of the 30-day resolution period, but later, the parent or public agency withdraws from the mediation process.”

Per §300.510(b)(4 ), “if the LEA is unable to obtain the participation of the parent in the resolution meeting after reasonable efforts have been made (and documented using the procedures in §300.322(d)) , the LEA may, at the conclusion of the 30-day period , request that a hearing officer dismiss the parent’s due process complaint.”

75 Days or Less

Per §300.515(a) , “the public agency must ensure that not later than 45 days after the expiration of the 30 day period under §300.510(b) , or the adjusted time periods described in §300.510(c) —(1) A final decision is reached in the hearing; and (2) A copy of the decision is mailed to each of the parties.â€

The 75 days is calculated by adding the 30 days period under §300.510(b) to the 45 days mentioned in section 300.515(a) .

Per §300.508(d)(4) , “if a party files an amended due process complaint, the timelines for the resolution meeting in §300.510(a) and the time period to resolve in §300.510(b) begin again with the filing of the amended due process complaint.”

Adjustments

Per §300.510(b)(3) , “except where the parties have jointly agreed to waive the resolution process or to use mediation, notwithstanding paragraphs (b)(1) and (2) of this section, the failure of the parent filing a due process complaint to participate in the resolution meeting will delay the timelines for the resolution process and due process hearing until the meeting is held.”

Per §300.510(c) , “the 45-day timeline for the due process hearing in §300.515(a) s tarts the day after one of the following events: (1) Both parties agree in writing to waive the resolution meeting; (2) After either the mediation or resolution meeting starts but before the end of the 30-day period , the parties agree in writing that no agreement is possible; (3) If both parties agree in writing to continue the mediation at the end of the 30-day resolution period , but later, the parent or public agency withdraws from the mediation process.” 

Per §300.515(c) , “a hearing or reviewing officer may grant specific extensions of time beyond the periods set out in paragraphs (a) and (b) of this section at the request of either party.â€

Cancellation

Per §300.510(e) , “if the parties execute an agreement pursuant to paragraph (d) of this section, a party may void the agreement within 3 business day s of the agreement’s execution.†Section (d) refers to 300.510(d) , which states, “if a resolution to the dispute is reached at the meeting described in paragraphs (a)(1) and (2) of this section, the parties must execute a legally binding agreement that is—(1) Signed by both the parent and a representative of the agency who has the authority to bind the agency; and (2) Enforceable in any State court of competent jurisdiction or in a district court of the United States, or, by the SEA, if the State has other mechanisms or procedures that permit parties to seek enforcement of resolution agreements, pursuant to §300.537 .â€

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• university of new orleans
• campus news
• uno-delgado partnership to enhance transfer student success in biology

CAMPUS NEWS: MAY 21, 2024

Transfer student success, uno-delgado partnership to enhance transfer student success in biology.

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The University of New Orleans has received a more than $550,000 grant from the Louisiana Board of Regents to create an academic pilot program in biology that eases the transition from Delgado Community College to UNO.

The University of New Orleans has been awarded a $553,000 grant from the Louisiana Board of Regents to create a pilot program in biology that would help ease the process for students transferring to UNO from Delgado Community College.

A recent student found that 80% of students entering community college indicated they want to earn a bachelor's degree or higher. However, only 32% of community college students actually transferred to a four-year institution within six years, said Jack Horne, UNO biological sciences professor and the principal investigator on the grant.

“One of the main reasons community college students do not finish their degrees is due to a loss of credits after transfer,” Horne said. “Thus, it is important to identify programs and mechanisms that facilitate this transfer pathway.”

The existing partnership between Delgado and UNO provides an ideal test case for enhancing the transfer pathway, said Horne. In addition, Delgado has the largest enrollment of Louisiana community colleges, and historically, UNO is the number one transfer destination for Delgado students.

“This proposal aims to build a program that minimizes credit loss and increases the number of transfer students in biology as a test case, and to assess each aspect of the program as a means to determine best practices to be applied across all majors to maximize the impact,” Horne said.

Horne, along with co-principal investigators Wendy Schluchter, UNO professor and chair of biological sciences, and Amanda Rosenzweig, assistant dean of Delgado’s STEM school, will collaborate to enhance and develop a student-focused, program-specific pathways for transfer students that begin with the associate degree, and prevent the loss of credits in the transfer process.  

It will be a three-prong approach, Horne said. Researchers will develop student-focused advising materials that ensure students fulfill their UNO general education requirements while earning their associate degree, and provide a plan for them to complete the science requirements necessary to prepare them for the bachelor’s degree in biological sciences at UNO. A significant part of this goal is to build an online virtual transfer portal that will be developed in collaboration with Vassil Roussev, computer science professor and director of UNO’s Cyber Center. Roussev is also a member of the grant team. Advisers and faculty from both institutions will be a part of this process and will organize the training and distribution to the advising staff, Horne said.

The second specific aim will be to implement programs to improve student success, Horne said. A working group consisting of biology faculty from both campuses will align introductory biology course work, including a significant technological enhancement.

Finally, a transfer student peer-mentoring program will be established at UNO where more senior Delgado transfer students serve as peer mentors for incoming transfer students, Horne said.

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