An Overview of the Due Process Procedure In California

Your child’s education is rightly very important to you, so if ever any issues arise between you and the school, it’s important you know that there are special procedures in place for resolving disputes: mediation and due process hearings.

An initial response to a dispute is often mediation, where you and a school representative will meet with a neutral third party to discuss the issue. The mediator has no authority to impose a decision, and is there only to facilitate discussion in order to help you and the school reach an acceptable compromise. If you are not satisfied by the results of mediation, you may proceed to a due process hearing. If you are not interested in mediation at all, you may go directly to the due process hearing.

Every person in California is guaranteed due process by the state and federal Constitutions. Due process protects individuals’ rights, and in this case, specifically the rights of students in special education programs.

What is a Due Process Hearing?

It is an official, legal procedure meant to resolve differences between parents and their child’s school as concerns special education services and a free and appropriate public education. They are most often held over disagreements about a child’s evaluation, eligibility or placement, services such as aides and specialists, changes to a child’s IEP, or a child’s suspension. Both the parent and the school district have the right to file for a hearing. The party who files is responsible for proving whether the child’s rights are being respected.

How to Request a Due Process Hearing

Send a written request, called a Due Process Complaint, to the state and the school district. This must be filed within two years after you are aware of the issue. It must include:

• Child’s name, address and school
• Parental contact information
• Description of the reason for requesting a hearing as relates to the child’s education
• Proposed solution to the problem

It can also include the sections of federal and state codes that you believe have been violated.

You may increase your chance of success by hiring a lawyer or special education advocate, though legal costs can add up very quickly. The school district is not required to pay your legal fees.

However, filing a Due Process Complaint can incur fees and added stress, so it is wise to only go this route if absolutely necessary. You should always try every available opportunity for mediation and collaboration with the school district before resorting to filing for a due process hearing.

During the Due Process Procedure

After filing a Due Process Complaint, the student has the right to stay in his or her current placement and use the current IEP.

Since this can be a very stressful time, do all you can to stay organized and informed of the events. Be able to clearly define the school’s position and reasoning, as well as your concerns and proposed resolutions so as to hopefully avoid becoming overly emotional in the hearing. Most importantly, rather than getting caught up in the red tape, remember why you’re doing it- to help your child get the best education possible.

Timeline of the Procedure

After the parent files a request for a due process hearing

Within 10 days: the school must offer a resolution meeting or agree to proceed with the hearing.

Within 15 days: the school district must notify if it is challenging the complaint’s sufficiency, offer a resolution meeting, or agree to go forward with the hearing.

Within 75 days: the Office of Administrative Hearings decision must issue a decision.

If mediation is requested, this will occur approximately 35 days after the filing date. The due process hearing will usually be held about 55 days after the request is filed, and a prehearing conference will be scheduled one week earlier.

The Office of Administrative Hearings must issue a final decision within 45 days of the Due Process Hearing.

More Information
More guidance on preparing for and completing the Due Process Hearing is available from California’s Office of Administrative Hearings.

If you would like to get more information on these topics and more come to the Special Education Laws Made Simple Seminar Monday, May 19th in Orange, CA!