Due Process FAQs
Ideally, parents, educators, and other professionals would be able to work together without acrimony or conflict to develop and carry out the child’s Individualized Education Program (IEP). Unfortunately, sometimes ignoring problems for the sake of harmonious communication isn’t always best for the child. When you feel that your child’s best interests are not being served, it’s time to consider due process. Due process is a means of resolving disputes with the school district. The entire procedure can be rather overwhelming; use the following FAQs to develop an understanding of the basics.
Does due process always mean going to a court hearing?
Not always. Quite often, the first step in due process is mediation. Mediation and a due process hearing are both parts of due process; however, you do not necessarily have to use both of them. If you strongly believe that mediation would not work, you could skip it and go straight to a due process hearing. Mediation is much like a due process hearing in that you will present evidence and argue your case. However, you also have the opportunity to meet privately with the mediator. If you do not agree with the mediator’s proposal, you may reject it.
What do I do if I don’t want to use due process?
If you would rather avoid mediation and a due process hearing altogether, you could always try informal compromise. This means that you and the school district would attempt to work through the disputes with negotiation and compromise in an informal setting. Even if you do plan to file for due process, it’s almost always best to try to negotiate first. If you’ve already unsuccessfully tried to work through the problem with the school district, consider hiring a lawyer. A special education lawyer can attend the IEP meetings with you. The school district may be more willing to compromise if you bring along a lawyer.
Is there a time limit on filing for due process?
Yes. Generally, you must file within two years of the date on which the dispute first began or you were first aware of the dispute. However, some states have a different time limit. Check with your state’s Department of Education for the correct statute of limitations. You may also file after the two-year limit if the school district wrongly informed you that the dispute was resolved when it was not.
Will there be a judge?
If you choose to request mediation, you will work with a neutral mediator. If you choose to use a due process hearing, a neutral hearing officer will act like a judge. The hearing officer’s decision is binding.
The idea of speaking in a courtroom doesn’t sit well with me. How do I get help?
It’s highly recommended that you hire a lawyer with experience in special education law. While you certainly have the right to represent your own case, a special education lawyer already understands the complexities of the applicable laws, knows how to negotiate the process, and can do much of the speaking in the hearing for you.
Will my child attend the hearing?
He is allowed to testify, but is not required to do so. When deciding whether to have your child testify, consider his age, maturity level, how the stress of the situation will affect him, and whether his testimony will greatly strengthen your case.
What if my witnesses refuse to testify?
You have the right to subpoena your witnesses to compel them to testify. In court, introduce them as hostile witnesses so that the record reflects their unwillingness to testify.
Will the hearing be similar to a regular court hearing or trial?
Yes, but there is no jury. The hearing officer makes the final decision. First, you and the school district have the opportunity to give statements, present your evidence, and question witnesses. You will also be able to cross-examine the witnesses for the school district.
What happens if I lose my case?
You have the right to file an appeal, usually within 90 days of the decision. (Your state may have a different time frame.) You could also explore the possibility of using a private speech-language pathologist (SLP) to meet your child’s needs.
What happens if I win my case?
The school district must comply with the decision of the hearing officer. If the school district fails to meet the requirements, you may file a complaint.