Are you ready for a heavy post today? We're talking about your rights for when you get stuck... really stuck... too stuck to talk it out or make a compromise or have another meeting...and when the issue you're stuck on is fundamental to your child's identification, evaluation, educational placement, or access to FAPE (a free, appropriate, public education).
That's right, today we're discussing due process which is the "D" in our ABCs of Special Education series.
Disclaimer: I am not a lawyer-- the content of this blog post is solely meant to be informational. If you're concerned that you may need legal advice, please seek the help of a special education attorney.
So what is due process?
Due process is a formal means to resolve conflicts or disputes with your child's school.
Due process is a series of steps that a family or guardian walks through with the school and other external parties to come to a decision about an item in dispute.
Here's what this looks like:
1. The family or guardian files a complaint that identifies a dispute concerning the child's identification, eligibility, educational placement or the provision of FAPE. If the dispute isn't about one of these items, it's not an issue that can be addressed with due process!
2. The school will schedule a resolution meeting to try to solve the problem before it gets to a hearing. You may decide to waive this meeting (in writing).
3. You can choose to go to mediation. This is when both the parent/guardian and the school presents their side of the dispute to a trained, external mediator who then helps to facilitate a collaborative conversation and negotiate an agreement between the two sides.
4. If an agreement cannot be reached at a resolution meeting or through mediation, there will be a due process hearing. This meeting will operate similarly to a traditional court case in that an impartial hearing officer hears testimony from both sides, including from witnesses, and then makes a decision regarding the case (which can then be appealed).
Easy enough, right? WRONG.
Due process takes a lot of time (check your Procedural Safeguards packet for a full list of timelines related to due process!), a lot of energy, and can further damage strained relationships with the school team. It also often requires the services of the attorney which means it can be expensive (though the school is required to provide you with a list of free or low-cost legal services if you request this in writing).
Due process is only appropriate for certain disputes that meet the guidelines outlined in the Procedural Safeguards and it should only be used when all other problem-solving measures have failed.
That said, due process exists to protect the rights of your student and it is a meaningful and helpful option when used appropriately.
So what should you do if you think due process might be the next step in your situation?
1. Read the Procedural Safeguards around due process. Have I said this enough? There are about 10 pages that cover all the ins and outs. Read them, highlight them, learn them. Do not begin the process without understanding your requirements, the timelines, and your options. Do not file for due process before reading the directions about what must be included in your complaint!
2. Consider hiring a special education advocate or attorney. Due process is a dense legal proceeding. You don't want to be "winging it"! Hiring someone up front can save you a lot of time and money as they help to evaluate whether your case is strong and how to best proceed.
3. Talk to others who have been through it. Was it a worthwhile experience for them? What do they know now that they wish they would've known when they started the process? What advice do they have, or is there an attorney that they would recommend?
4. Read up on it. Check out some other great resources that explain how due process works in "normal language." This brief from Understood.org is fantastic and links to some other helpful articles as well.
Phew, I told you that was going to be heavy! Have you ever been through due process? If so, we'd love to hear about your experiences! Head over to the IEP Guru Facebook page to share.