Is Due Process in Your Future?
by Larry Larsen and Philip Guzman

Reprinted from ParenTalk, volume 3, issue 3, a publication of The Parents' Place of Maryland.

From the Editor: This article was written before the 1997 amendments to IDEA were enacted. Although the new law and the rules implementing it may make some changes to the process described below, the following information is, and will be, pertinent and valuable for some time to come.

Also, please note that this article is based upon how things are done in Maryland. Some variation in procedures is allowed for every state, so please check with your State Department of Education if you are not clear how something is done in your state (the process for mediation, for example).

About the authors: Larry Larsen is Co-Director of the Parents' Place of Maryland and Philip Guzman is an attorney in private practice who specializes in special education law. He is also the parent of a disabled child. Here, now, is what they say about due process:

Of all the challenging events that a parent might encounter in dealing with their child's school system, none is more intimidating and emotionally demanding and potentially painful than a due process hearing. Many parents, we have learned, arrive at their scheduled hearings woefully unprepared to present their side of the case and are, as a result, crushed by a process that was intended to give them equality in resolving disagreements concerning their child's education. Clearly, many parents enter the due process arena without fully understanding what is in store for them.

A due process hearing, it must be remembered, is very similar to a trial—and, like a trial, each side is more interested in presenting the positive aspects of its case than it is in presenting a completely accurate portrait of the student who is the subject of the hearing. Put another way, if one party to the hearing possesses evidence that might be detrimental to its case and beneficial to its adversary, that evidence will most certainly not be presented.

Hearing Rights

A glance at some of the "hearing rights" granted to both parties by the regulations for Part B of IDEA (see 34 CFR 300.508) will highlight the adversarial nature of due process hearings.

According to the Part B regulations, each party has the right to:

1) Be accompanied and advised by counsel and by individuals with special knowledge or training with respect to the problems of children with disabilities.

2) Present evidence and confront, cross-examine, and compel the attendance of witnesses.

3) Prohibit the introduction of any evidence at the hearing that has not been disclosed to that party at least five days before hearing.

 

THE PROCESS OF DUE PROCESS

As for the hearing itself, at the outset the hearing officer will introduce him or herself and give a brief statement of his or her background. All participants in the hearing will identify themselves for the record and any preliminary issues that are raised will be discussed. The parent or advocate will be asked if the parents have been afforded their due process rights, i.e., whether the school system has told the parents about all their legal rights throughout the process. Oaths will be administered to all the witnesses. As in a trial, the two parties will then proceed with opening statements. One party will then present and question its witnesses with the other party having the opportunity to cross-examine each witness. The second party then presents and questions its witnesses with each subject to cross-examination. Finally, the two parties have an opportunity to make closing statements to conclude the hearing. The decision of the hearing officer is typically rendered within a week or so of the hearing and is mailed to both parties.

Herewith are some "Do's" and "Don'ts" that you should keep in mind if there is the possibility of a due process hearing in your future.

DO consider trying to resolve the disagreement you have with your child's school system through more benign and less stressful procedure.

In addition to due process, two other avenues are available to a parent who believes that the school system is not meeting its obligations to her child. First, if a parent believes that the school system is clearly violating any of the federal special education regulations found in 34 CFR 300, filing a complaint with the Maryland State Department of Education (MSDE) is a better choice than requesting a hearing. Under current federal regulations (see 34 CFR 300.660-662), a written complaint can be filed whenever it is believed that a local school system has violated any requirement of Part B of IDEA—the complainant should specify which regulation she believes has been violated and the facts on which the complaint is based. MSDE then has 60 days to investigate the complaint, obtain additional information as necessary, and issue a written decision. If MSDE does find that the local school system is violating a Part B requirement, it will order the school system to take corrective action and to refrain from repeating the violation in the future. The advantage of this option is that it places comparatively few demands on the parent's time, emotions, and pocketbook.

A second alternative for resolving disagreements is through mediation. Unlike due process in which a hearing officer issues a decision (i.e., arbitrates the dispute), in mediation the "mediator" is not empowered to make decisions. Instead, the role of the mediator is to promote discussion between the two parties and to assist them in arriving at a mutually agreeable resolution of their disagreement. Because mediation is a much gentler process, it is preferred when there is at least a possibility that both parties are willing to bend a bit and reach a mutually acceptable compromise. However, if the initial positions taken by the two parties are firm, mediation can turn out to be nothing more than a waste of time. It should also be noted that a parent who requests mediation does not give up her rights to a subsequent due process hearing—if the mediation is unsuccessful, she can then proceed with her request for a hearing.

DO get a lawyer or someone who is experienced in due process proceedings to represent you and argue your case.

The old adage that the lawyer who represents himself has a fool for a client is appropriate here—unless you are skilled and experienced in planning, preparing, and presenting a case, you should not represent yourself at a hearing.

Preparing for a due process hearing is a long and difficult process that usually involves the following steps:

1) Carefully and precisely list the points that you want to convince the hearing officer are true.

2) Review all of the student's educational records and select those documents that will help build your case. Arrange to review the student's entire school record which may be divided among several folders including the cumulative file, the confidential file, and discipline and attendance information. The selected documents must then be numbered, indexed, and duplicated for submission to the opposing party and the hearing officer at least five days before the hearing (as a matter of courtesy, this "five-day rule" is typically interpreted as meaning five working days). Remember that it is your obligation to submit your documents to the hearing officer; the school system will not do this for you (and frequently will not even tell you that this is your responsibility).

3) Determine if any additional evidence needs to be obtained in time for the hearing, for example, observations of the student in his/her classroom(s), additional assessments by independent examiners, medical records from the child's pediatrician, etc.

4) Select the witnesses that you plan to call and specify the nature of the testimony that you want to solicit from each to bolster your case. The names of your witnesses must be submitted to the opposing party at least five days before the hearing.

5) Write out a sequence of questions to ask each witness that you plan to call (unless you are quicker on your feet than the average person, you will not have time to think up questions to ask during the hearing itself). Your questions should be carefully chosen and phrased so that (a) you know what the answers will be, (b) the person being questioned can give relatively short answers, and the answers bear directly on the major points you want to make to the hearing officer.

6) When you get the opposing party's witness list (which must be given to you at least five days before the hearing), write out potential questions for each witness listed.

7) Well in advance of the hearing date, meet with the witnesses you plan to call and prepare them for the testimony that they will give. While you should not rehearse them or tell them what to say, you do want to make sure that you are in general agreement as to their testimony—and also that you will not be "blind-sided" by their testimony.

8) Prepare an opening statement that you will present at the beginning of the hearing and at least sketch out the primary points that you will want to make in your closing statement.

While an experienced lawyer can perhaps prepare for a due process hearing in a matter of hours, a novice should expect to devote between two and four full days to the task. If you do obtain the services of a lawyer (which is highly recommended), you should not quibble when she asks for what seems like a king's ransom as a retainer. Lawyers in private practice have high overhead costs, and the time that they must devote to representing you well makes their fees understandable if not reasonable.

DO NOT file a request for a due process hearing and then look for a lawyer or experienced advocate to represent you.

All too often we have been contracted by parents who tell us that they recently filed for a due process hearing and who ask for our help in presenting their case. Given the preparation time that is required, we are rarely capable of doing a good job on such short notice.

Also, a request for a hearing should not be submitted until the issues of disagreement have been carefully framed and phrased in terms of alleged violations of federal and/or Maryland special education regulations. Hearing officers, it must be remembered, can base their decisions only on law and regulation—they cannot necessarily rule on what they believe to be the best interests of the student in question.

If you are contemplating a request for due process, do speak with an attorney or advocate first. Remember to proceed in a timely fashion—do not let a decision with which you do not agree linger in time or you may eventually face the argument that you waived your right to proceed on the issue of concern to you.

An experienced attorney or advocate can advise you as to whether or not you have a good chance of prevailing at the hearing or if you are fighting a lost cause. Remember as well that, if you are the prevailing party at a hearing, the losing side (the school system) will likely have to reimburse you for your attorney's fees.

DO remember that one of the nearly inescapable results of due process is hard feelings.

Due process hearings are confrontational. You can expect the opposing party to try to devastate your evidence and witnesses, and you can expect your representative to try to do the same to them. Like divorce, very few due process hearings result in two parties who have continuing cordial relationships. Given that hard feelings are nearly inevitable, and knowing that these residual effects can in themselves color the education your child receives, do not enter the due process arena unless your issue is of sufficient importance to you that the potential benefits outweigh these costs.