A Beginner’s Guide to the Special Education Legal Process #7: Going to a Hearing

This is a summary of the third edition of CSNLG’s podcast Special Education Matters. In this podcast, our host Michael Boll and lead attorney Richard Isaacs discuss the rare event of a due process hearing, and what families should expect going into this trial. The podcast can be found here.

Overview of the Due-Process Hearing

• A Due Process Hearing happens after many attempts have been made between a school district and families to find a solution that both sides can agree on, but no resolution is reached.
• The final step (outside of appeals)  that can be taken to get the district to provide the solution the family is after.
• Happens very rarely. 94-97% of cases settle before it reaches a due process hearing.

What Does the Process Look Like?

• Held at the school district. Sometimes in the same conference room that the mediation took place in.
• There’ll be a table for the judge, a table for the witness, a table for the district, and a table for the family
• IEPs and assessments are often submitted as evidence, in which case the assessor would be considered a witness for questioning.
• The due process hearing is relatively informal and is an easy process to navigate for the most part. It should be thought of more as a question and answer session. While there are inevitably rules on how to enter evidence to take it under submission for the court, there’s still a lot of flexibility which make is much less formal than your typical civil hearing.

Cross-Examination

• Cross-examinations can often get frustrating as district councils will often interrupt and object and make it more difficult for the witness and the family.
• In spite of this, the ALJs are typically helpful in quieting that and making the process easier.
• It’s important to remember that our objective is to get the facts and information out – we have nothing to hide. When the district continues to object, it’s usually when they’re afraid of that information getting out to the judge.
• Students almost never testify as a witness.
• Parents almost always testify. This isn’t too scary because the objective is really just to tell the story of your own child to the ALJ.

What’s the Time Span of the Hearing?

• You should be able to present the entirety of your case in no more than three days.
• The hearing starts at 9:00 – 9:30 in the morning, depending on the day of the week.
• The hearing runs until 4:30 – 5:00, depending on when the last witness of that day is finished.
• Some attorneys will try to drag a hearing out – we have to pay for experts, so wasting time makes it more expensive.

How Does the Hearing Conclude?

• The decision doesn’t come at the end of the hearing; rather, the judge takes the case under submission with a written decision being prepared about 30 days after the trial is closed.
• Documents are submitted to the judge as evidence.
• It’s important to note that closing arguments aren’t made. The closing arguments are written. This allows everyone to take the time to look at the evidence and apply it to the law before submitting it to the court.
• At the conclusion of the hearing, the case will remain open and the judge will give you a later due date to submit closing briefs.
• After the closing briefs are submitted, the case is closed and new evidence can come in.
• The court will then make a written decision usually in about 30 days after those closing briefs are submitted.
• Unless the case is appealed, the case comes to a close at that point.

This summary is part of our complete Beginner’s Guide to the Special Education Legal Process.