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.

 

 

 

 

This article is a summary of the podcast, Deciding to File a Lawsuit from the podcast Special Education Matters, with host Michael Boll and CSNLG lead attorney Richard Isaacs. The podcast can be found here. This conversation focuses on what happens when a family may decide to file a due process complaint if they disagree with the districts offer of services.

What will happen after filing a due process complaint?

• A Resolution Session within 15 days must be scheduled
• Mediation may be scheduled
• Trial/hearing if no resolution reached

What leads to the due process complaint?

• After an IEP has been conducted there may be outstanding issues to resolve or services expected.
• The family and the district cannot come to agreement on what is considered a FAPE (Free Appropriate Public Education)
• Parents have paid for educational services and are requesting reimbursement.
• If there is no agreement, a due process complaint is filed.

How does the resolution process begin?

• Once the due process complaint is filed, a resolution session must be scheduled within 15 days by the school district.
• There is a 30 day resolution period before the trial can begin. There are exceptions to this rule.

What happens in the resolution session?

• In the resolution session, attorneys are encouraged not to attend.
• If a family brings their attorney, the district can also bring their attorney, however, if the parent does not bring an attorney, the district cannot bring their attorney.
• This provides an incentive for the district admin to discuss concerns and solutions with the parents and resolve the issues together.

Is this process helpful?

• The resolution process may be useful, and a resolution can potentially be reached.
• However, cases are rarely settled at the resolution session.
• Usually, the resolution session  is not helpful. families t

What happens in the next step, mediation?

• Mediation is a voluntary process, but is heavily encouraged.
• Mediation has the benefit of having mediators; typically administrative law judges (ALJs).
• The benefit here is the mediator understands the law and has experience in helping the parties reach a settlement.

Problems with mediation:

• In the case of a poor mediator, where the ALJ may be inexperienced  or otherwise unsuitable, a successful mediation may not occur.
• Another option is to skip mediation and sit down directly with the school district and the attorneys in a settlement conference. This is beneficial when the relationship between the family and district is strong.
• The bottom line is: mediation can be a waste of time without the right mediator.
• Currently, about 60% of mediation is a waste of time; it is ineffective, inefficient, and provides an unnecessary expense for families.
• Clients will be advised differently on how to approach mediation under different circumstances.

Benefits of mediation:

• Mediation, in the right conditions, can lead to resolutions with more creativity — resolutions that would otherwise not be granted at hearing.

What about trials or hearings?

• Around 94 percent of due process complaints do not go to hearing. They may be settled or dismissed.
• It is important to note that clients and the district may not necessarily be opposed in the sense that they are both working to help the student succeed, but may disagree on how to do so.
• Sometimes, when this decision goes to a judge who is unfamiliar with the student in question, the solution may be unsuitable.
• Thus, it is important try and  settle each case, rather than go to hearing. Hearing is the last option.

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