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Powerful but costly
Please note: Every state's due process system for deciding special education disputes is different, though there are many common elements. This commentary addresses general themes in special education law and process. Before taking any steps, parents should find out what particular law and process applies where they live.
Every state has a system for impartial hearing officers to decide whether an Individualized Educational Plan (IEP) that has been rejected by parents meets the legal requirements under IDEA and the state's own special education laws. Special education hearings are generally run like trials in civil courts, but are less formal. Procedural and evidentiary rules that apply in courtrooms are more loosely applied in these proceedings. Hearings are run by hearing officers who are independent of both the school system and the state educational agency responsible for administering special education programs in the state.
As in a civil trial, the party (usually the parents) who raised the issue being tried must proceed first. They introduce documents and oral testimony to make their case. Each of their witnesses is subject to cross-examination by the other party and to questioning at any time by the hearing officer. The responding party (usually the school system) then introduces its witnesses, who in turn may be cross-examined by the other party and questioned by the hearing officer. At the end of the responding party's case, the other party may introduce evidence to rebut new points that have been raised by the responding party.
An official record is made of the proceeding. To date, such records have normally been made by tape recorder and only occasionally by a court reporter. Recent amendments to IDEA allow parents to choose whether proceedings will be recorded orally or in a written record. A court reporter's record of a hearing is generally more accurate and easier to use on appeal than a tape recording, so if parents are given the choice under the new provision, they should ordinarily request that a written record be made.
Arguments can be made both at the opening of a party's presentation and at the end of the hearing. Usually closing arguments are presented in writing a week or two after the last day of the hearing. The hearing officer then writes his or her decision, which either party can appeal to federal or state court.
Over the years since IDEA became effective, due process hearings have become increasingly sophisticated, complex and costly. They have always been stressful, as parents' passion to meet their children's needs collide with educators' professional pride in their programs and a commitment to keep special education costs within budget. They have also served as a battle ground for competing educational philosophies (as for example between "inclusion" on the one hand and more intensive and separate services on the other). Too often, personality conflicts between parents and school officials take precedence over the needs of the child. At their best, however, hearings give parents a level playing field to challenge school systems that want to avoid providing appropriate services because of cost or misguided educational philosophy.
Before they decide to proceed to hearing, parents should educate themselves as much as possible about the specific issues in their case and the ways cases similar to theirs have been decided. They should evaluate whether they have the strong, believable expert testimony they will need to support their case, and they should consider the tangible and intangible consequences of proceeding through hearing, even if they win. For example, parents of very young children need to remember that they have many years ahead of them in the school system and should consider whether their ability to work for their child's best interests over those years will be improved or undermined by taking the school system to a hearing. Is the particular issue in dispute worth it? A satisfactory result achieved through negotiation is certainly preferable. On the other hand, many families who have demonstrated their willingness to use the hearing process have found that their views are treated with greater respect in the future.
Although parents may represent themselves in these proceedings, it is usually wiser to engage an attorney or advocate who is experienced with special education litigation. If parents prevail, they are entitled under IDEA to recover all or part of their attorney's fees and expenses from the school system. (Note that recent changes in IDEA will restrict the recovery of fees in certain cases. Also note that current case law bars fee awards for non-lawyer advocates under IDEA.)