Monday, May 12, 2014

New Weekly Question!

Due process hearings is the forum for resolving special ed disputes before going to court. These hearings are currently under attack, but Professor Weber's new law review article defends due process hearings. What do you think? Have you had a due process experience. Leave a comment but please no names!


  1. Our due process hearings were a joke. To make a long story short, our child with multiple disabilities was independently evaluated and found to need a phonics based reading program. Our District didn't have it, so they decided to use their one size fits all System 44 reading program. At the end of the year, he was again evaluated by the independent evaluator, who said he was making no progress in reading and that he needed the previously recommended program. The District again refused to budge. The independent evaluator said our son could stay in the District if they revised the IEP, but they refused. They came to the IEP meeting with what they called a draft IEP (which they did not provide to us until the meeting) but refused to offer the program our son needed. We had no input into the IEP at all. So, we told them we were rejecting the IEP and requested due process.

    It was after this that the District leaped into litigation mode. Administrators met and revised the IEP (without us being there) and mailed us a revised copy 3 days after we withdrew from the District. But now get this.....the District did not even have a certified instructor for the program in the District!

    Well, I will spare you all the details but the Hearing Officer would not allow direct examination of our medical expert, stating that all the relevant findings should be in her report. Yet, he did not address her report in any meaningful way in the decision finding in favor of the District. The H.O. also gave greatest weight to the testimony of the reading specialist, even though she has no special education background. No one in these proceedings even approached the qualifications of the independent evaluator.

    But you really won't believe this-in finding for the District, the H.O. found the first IEP to the an offer of FAPE, even though the District insisted it was just a draft! So, the H.O. declared the first IEP an offer of FAPE, despite the District's claim that they never intended to implement that IEP. Moreover, it is against the rules to come to an IEP meeting with a predetermined IEP. But no matter. We never had a chance. And it's off to District Court we go.

    1. I forgot to mention that we placed our son in private school and demanded tuition reimbursement.

  2. As an attorney who represents parents in special education due process hearings, I believe that the quality of hearing officer decisions depends upon whether the hearing officer has a high degree of knowledge about special education, about special education law, and is actually free of bias in favor of the state agency or LEA. Generally, due process hearings are no easier, and require no less skill on the part of an attorney, than regular district court trials. Because school district attorneys must zealously represent their clients, in my experience, they tend to engage in tactics for the purpose of running up the parents' legal bill (e.g., excessive filing of motions, playing "hide the ball," etc.). Although their clients are well-educated educators and administrators, those individuals are generally no more honest about the facts than they can be without risking their jobs by telling the truth. This notwithstanding, hearing officers tend to assume the credibility of such personnel, and give deference to their decisions. In some cases, although the hearing officers have ordered school districts to reimburse my clients' attorney fees, some of those districts have refused to do so until after I have obtained an enforceable judgement (for the same amount of fees) in federal court.

  3. Anon & Anon,

    Thank you for your comments.