Due process rights: What you need to know

Many disputes between you and a school about your child’s education can be resolved by talking through disagreements. But sometimes just talking doesn’t lead to agreement. You might need another way forward.

The Individuals with Disabilities Education Act (IDEA) provides a formal way to resolve disputes with the school. It is called “due process.” Due process takes time. If the situation isn’t resolved easily, you also may need an attorney or advocate. Understanding your legal rights and how due process works can help you decide if it’s the right path for you.

Due process starts with a complaint and ends with a decision.

Due process starts when you file a written complaint against the school. After you file the complaint, you and the school attend what’s called a resolution session. A resolution session is a meeting where both sides try to reach an agreement before going further. You and the school district may agree (in writing) to waive this meeting, or to try mediation.

If no agreement is reached, there is a due process hearing. This hearing is like a courtroom trial. Evidence is presented, and witnesses speak in front of a hearing officer who acts like a judge. The hearing officer makes a decision about your case, which can be challenged in court.

Due process is for disputes about your child’s rights to special education.

Due process isn’t for every dispute. Under IDEA, you can only file a due process complaint for a dispute related to “identification, evaluation, or educational placement of [a child with a disability], or the provision of a free appropriate public education [FAPE].” This means that you can only use due process for special education disputes. You can’t file a due process complaint because, for instance, a school violated your child’s religious rights. (There are other laws for that.)

Disputes with your school can be about either “substantive” or “procedural” issues. What’s the difference? Substantive issues deal with your child’s right to an appropriate education. For example, you have a substantive dispute if your child’s Individualized Education Program (IEP) doesn’t give the help your child needs in reading or math.

Procedural issues involve the technical aspects of the evaluation or IEP process. For example, you have a procedural dispute if the IEP team met without including you or the school didn’t give you prior written notice.

A due process decision about whether your child received a free appropriate public education (FAPE) must be based on substantive issues. This means you need to make a complaint about your child’s right to an appropriate education, not about a technicality like lack of notice.

There is an exception, though: if the school’s technical (procedural) violation had an educational impact on your child. For example, this could occur if the school’s failure to give notice (a procedural issue) hurt your child’s right to an appropriate education (a substantive issue).

Another example would be if you were excluded from IEP meetings, and that significantly interfered with your opportunity to participate in the evaluation or IEP process.

The bottom line is that due process focuses on your child’s education — not on the school’s procedural or technical violations.

Each stage of due process has specific time limits.

IDEA provides specific time limits on when each stage in due process must happen:

• You must file a due process complaint within two years of when you learned about the school’s action that you’re complaining about.

• The school must hold a resolution session with you within 15 days after receiving the due process complaint. There’s a 30-day period to try to reach a resolution agreement.

• Once it’s clear that there won’t be a resolution agreement, the state department of education has 45 days to make sure there is a due process hearing and decision.

• You have 90 days from the due process decision to file a lawsuit in state or federal court.

There can be exceptions to these time limits and states sometimes have their own rules. It’s important to check the time limits in your state.

Your due process complaint must describe the dispute and be written and signed.

The complaint that starts due process is typically a formal letter. It must be written, signed and state that the school violated IDEA. The due process complaint must include the following information:

• Your child’s name

• Your child’s address

• The name of your child’s school

• A description of the dispute between you and the school, including facts about the dispute

• A proposed solution

You need to send the complaint to the school and to your state department of education. It’s important to write a due process complaint carefully. If you don’t put an issue in the complaint, you can’t raise it later at the hearing. (Review this example of a due process complaint.)

You can present evidence and witnesses at the due process hearing.

According to IDEA, the hearing officer that decides your case must be “impartial.” The officer can’t be an employee of the school or have a conflict of interest favoring either side. The officer must also have the knowledge and ability to conduct a hearing.

A due process hearing is similar to a courtroom trial. You have the following right in a due process hearing:

• The right to hire a lawyer and other experts to accompany and advise you at the hearing

• The right to present evidence and have witnesses attend and testify

• The right to confront and cross-examine the school’s witnesses

• The right to a written verbatim recording of the hearing, at no cost

• The right to written findings of fact and decision from the hearing officer, at no cost

• The right to have your child present

• The right to have the hearing open to the public

At least five business days before the hearing, the school must disclose to you all evaluations and evidence that it’s going to present at the hearing. You also have to disclose the evaluations you’re going to present.

These disclosures ensure that both sides have a fair chance to respond to the other. If you or the school don’t disclose something five days before, the hearing officer can stop that evidence from being used at the hearing. After both sides present evidence and witnesses, the hearing officer will make a decision.

Learn more about what to expect at a due process hearing.

You may seek attorney fees if you win.

If you win the due process hearing with the help of a lawyer, you may be able to get the school to pay for “reasonable” attorney fees, according to IDEA. In some states, the hearing officer can award fees. In other states, you need to file a lawsuit in a court to get attorney fees from the school.

However, by the same token, if the school wins, it can seek to have you pay for its lawyers. A court will make you pay if your case was frivolous or intended to harass or delay.

You can challenge a hearing decision if you lose.

If the hearing officer decides your case against you, then you have the right to challenge the decision. In some states, you can start a lawsuit in state or federal court. In other states, you must first appeal to the state department of education before filing a lawsuit.

Due process is one of the most powerful ways to resolve a dispute with a school about your child’s education. Because the process is complicated, you may want to speak to an education advocate or lawyer if you are considering it. By understanding your legal rights, you can decide whether this is an option you want to pursue.