Filing for Due Process
As the guardian of a child with special needs, you have the right to advocate for your child’s educational success. Indeed, the IEP is a tool to help facilitate and guide your child’s educational needs. But what happens when the IEP is no longer effective, or perhaps the services aren’t being implemented? What do you then? One avenue that might be of interest to you is the Due Process Hearing. This hearing is an administrative remedy and allows one to sue the school district for failing to provide a free and appropriate public education or being in breach of contract (IEPs are legally binding contracts).
No family should go through a Due Process Hearing without strong legal representation. If your child’s rights have been neglected, contact Woodsmall Law Group today and set up a free initial consultation to review your case with one of our Los Angeles special education attorneys. We assign two attorneys to each case so that our clients and their families receive the legal guidance they deserve throughout the entire process. We can explain your child’s right to a free and appropriate public education and advocate on their behalf, so that they can receive the best education possible. To speak to us, call (626) 440-0028.
How to Resolve a Dispute With a School District
During the development and implementation of a child’s IEP, parents may have disputes with the school district or within the IEP team about how to implement supports and services for the child. These disputes can occur when the school district:
- Refuses to evaluate a child
- Refuses to provide supports and services for a child
- Refuses to schedule IEP meetings
- Refuses to provide prior written notice about changes to an IEP
- Violates your child’s right to a free and appropriate public education
- Violates the rules of your child’s IEP
In some cases, the dispute may involve a delay about when services will be provided; in others, the school district is simply refusing to provide certain services. In these scenarios, parents have three options for resolving a dispute:
Informal Dispute Resolution (IDR): Often the fastest process, an IDR is a voluntary and informal meeting between parents and a school district. During these meetings, both sides can come to a solution for how to move forward in the implementation of an IEP without having to go through a Due Process Hearing.
Mediation: Mediation is similar to an IDR, but it involves you and a representative of the school district meeting with a neutral third-party. This third-party will help facilitate the conversation to reach a fair resolution of the dispute, but they have no authority to make a decision about your child’s case or IEP.
Due Process Hearing: A Due Process Hearing is a formal hearing where both parents and the school district present their arguments before a judge, who will decide how the matter should be resolved. Both sides can have legal representation and the hearing often follows the same procedures as a traditional trial, with each side presenting evidence and arguments.
How to File for Due Process
Due Process begins with a parent filing a complaint against the school district for not providing supports and services as outlined in an IEP. This typically will lead to an IDR, where parents and the school district can informally discuss the issues, or mediation, if both sides feel that a third-party is necessary. If an agreement cannot be reached, then the next step is a Due Process Hearing.
Due Process Hearings are solely for special education disputes and are based on a school district’s failure to provide free and appropriate public education. If the school district failed to follow certain administrative procedures, such as by failing to provide written notice about a change, then the complaint may be seen as frivolous unless it directly impacted the child’s education.
If a school has violated your child’s right to an education, then you can file a complaint with the California Office of Administrative Hearings (OAH) Special Education Division, which will provide a neutral forum to discuss the complaint and determine the best solution. The OAH will schedule a Due Process Hearing where legal representatives for both the school district and the parents can present their sides of the case before an impartial Administrative Law Judge (ALJ). The ALJ will review all evidence, including opening and closing statements, witness statements, expert testimonies, and other types of evidence, to make a decision about your child’s case.
A Due Process Hearing can end with:
- The ALJ ruling in favor of your child and requiring the school district to resolve the complaint; or
- The ALJ ruling in favor of the school district, which will not be required to implement any changes in your child’s case.
However, even if the ALJ rules against your complaint, you can still appeal the decision in a California state court or a federal court if you disagree with the Due Process Hearing’s results.
Rules and Procedures
Due Process Hearings can be complicated, and all parents should understand the strict rules and timelines they must abide by during the process.
- Your Due Process complaint must be in writing, signed, and clearly explain what the dispute is about. It must include your child’s name, your child’s school, a description of the dispute, and a proposed solution.
- You have two years from the date you learned about the school district’s actions to file a Due Process complaint.
- The school district has 15 days to schedule an IDR meeting.
- If there is no resolution through an IDR or mediation, OAH has 45 days to schedule a Due Process Hearing and decide.
- If you disagree with the Due Process Hearing decision, you have 90 days to file a lawsuit in state or federal court.
- You have the right to an attorney throughout the Due Process Hearing and should exercise it.
- You have the right to present evidence and witness testimonies, as well as the right to cross-examine the school district’s evidence and testimonies.
- At least five days before the Due Process Hearing, both sides must share all evidence and testimonies with each other. If the school district tries to present surprise evidence or testimony, your attorney can request that it be thrown out.
How a Special Education Attorney Can Help Your Family
Filing a Due Process complaint is a stressful and complex process. Going into a dispute on your own as a parent can be incredibly difficult, especially when all you want is for your child to receive a proper education. When a school district denies a special needs child the services and supports he or she needs to succeed in education, you are well within your rights to file a complaint and request a timely resolution to the matter.
In order to ensure your child’s rights are upheld during the process, you should speak to a Los Angeles special education lawyer at Woodsmall Law Group. Our firm has extensive experience representing parents and their children in special education disputes. If you need to resolve an issue with a school district, contact our office at (626) 440-0028 to schedule a free consultation.