This is a transcript of the seventh 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.

[music]

Michael Boll:

You’re listening to Special Education matters, a regular podcast about things that matter in special education. I’m your host, Michael Boll, and I am the proud father of a 18 year old boy with autism. I’m here to introduce a special series we are running on our podcast: Special Education Matters. Our lead attorney Richard Isaacs, and others, will be discussing the process and steps that happen when a parent decides to work with us. In this show, Richard and I talk about the due process hearing. The due process hearing is the rare event that happens after many attempts have been made between a school district and families to find a solution that both sides can agree on. We discuss what happens during one of these hearings. Enjoy.

[0:42]

Today, Rich, we’re gonna talk about and give an overview with a due process hearing. This is the big deal – the final place that we can go…well unless we were to appeal it. But anyways, give us an overview of the due process hearing.

Richard Isaacs [0:56]:

The due process hearing – you’re right, there’s no resolution, we can’t resolve the dispute, and the parties put it in the hands of a judge, and that’s administrative law judge. And that’s thats the process hearing, and it’s an actual trial. You have witnesses, you have testimony, and you make your case.

MB [1:14]:

And it doesn’t happen very often, right? So, we talked earlier that 90 percent of things settled before they get to this point. So it sounds like it’s more just the threat of it rather than the reality of it.

RI [1:24]:

Which is true, it’s 94-97 percent of cases never reach that point of a due process hearing; they actually settle, as it should be. The district has an incentive to help the student. That’s their job. Parents obviously are focused on their student’s need. There’s no reason the parties can’t reach a resolution of what’s gonna benefit the student, and most of the time, that’s what happens. It does go to hearing, say that 7 percent or 6 percent of the time, and when it does, you put it in the hands of a judge. And that’s a little bit scary, but that’s what hearings for.

MB [2:02]:

Alright, let’s talk about that process. So I’m in the 5th percentile or something, I’m going to hearing and I decided to push it. Maybe I’m making a big statement about something else on, you know, whatever. But what is that process like – is it your traditional courtroom, am I back in a classroom? Tell us about that.

RI [2:16]

Well, that’s the benefit of the due process hearing for special education. While it’s scary for parents, once they see the system went, once its explained, oftentimes a lot of their stresses will go away. So the hearing itself is, for the most part – and there are a few exceptions of this – it’s held at the school district, and sometimes it’s in the same conference room that you had mediation. What they do is the judge will come in, and they will have a table for the judge, a table for the witness, a table for the district, and a table for us. And we call witnesses. We submit evidence like IEPS and assessments. So if we’re gonna submit and discuss an assessment, we have the assessor on the witness stand, and we ask questions. The judge will ask questions. It’s not as formal. You don’t picture going into federal court, this really big courtroom, and everybody’s in suits and ties. It’s really low key. It’s a question and answer session. There are rules of evidence on how we enter evidence to take it under submission for the court, but even in that there’s a lot of flexibility. So it shouldn’t be scary at all. If we can’t reach a resolution, it’s administrative court, the system is meant to be accessible and to work, and it is pretty easy to navigate the due process.

MB [3:38]:

Now is it exciting, in that you get to cross-examine the witnesses, and then suddenly somebody burst out crying saying, ‘I did it! I did it!’

RI [3:43]:

[chuckles]

We’ll I think if there’s any stress, that typically does not happen – definitely not as exciting as watching a trial on TV. There is cross examinations, and it can get a little frustrating, and sometimes the district councils will try to play these typical attorney games where they interrupt and they object. For the most part, the ALJs are pretty good at quieting that. From the student’s perspective, we want all the information out. We’re not hiding anything, it’s usually the district. So when they’re objecting and objecting, it’s because they’re afraid of the information. We’ll get the information and we’ll be patient and we’ll just keep asking the questions. So there’s a little of the tactics, I guess, played by the other side, and maybe some student attorneys play those. I don’t. We know what our case is, and we’re not gonna go to hearing unless it’s a strong case, and there is a way to present our evidence and present our case.

MB [4:41]:

If I’m a parent, should I expect to be on  the stand? Are they gonna cross examine my child on the stand?

RI [4:48]:

You know, we’ve been in hearing – not too often because like we were saying, most cases settle – and I’ve never had a student testify. Parents, in every case I’ve been in have testified. It’s necessary to explain who your child is. And we prep everybody; it’s not as stressful as you think because you’re talking about your child. You don’t have to think about it. You don’t have to, ‘oh, can I say the wrong thing’ because there’s nothing that we’re afraid to say. You do get cross examined, but even for that, for the most part, people are very respectful. The judge ask questions. The whole point of the hearing, and I think sometimes people forget this, is to tell the story to a judge, which is Administrative Law judge. They’re actually the judge, but they’re the jury too, so they have to interpret the facts. And if there’s competing facts or the districts telling one set of facts, and we’re questioning that, it’s gonna be the judge that has to determine which facts to believe and then apply that to the law. But it’s not that stressful.

MB [5:52]:

So tell me about when it starts – like we start at 9:30 in the morning, probably, like the mediation hearing, and how long as a family can expect to be in this process..

RI [6:01]:

So every case is a little bit different, obviously, depending on how many issues you have. I try really hard to run the case in about three to five days. And you’re right – the hearing starts at 9:30 9:00, depending on the day of the week, and it runs to about 4:30 or 5:00, really just depending on when a witness is finished, and if you wanna start a new witness, or if you wanna just start at the next morning. There’s some attorneys that really try to drag a hearing out. I wanna get in there present our case one. For one, it’s expensive. We have to pay for experts, so I don’t wanna waste time. In almost every case, we should be able to present our side in no more than three days.

MB [6:43]:

Alright, and how does it all end then? So you’re in there for a couple of days, three days, let’s say, and then you walk out. There isn’t a decision right then and there. What happens?

RI [6:52]:

I think as people want, the judge will make their decision. What happens is that the judge is gonna take it under submission and we enter a ton of documents into evidence. The judge will then then take the case under submission. But one important piece, too, is we don’t make closing arguments. We usually put our closing arguments in writing. And that allows us to take the time to really look at what evidence was submitted, apply it to the law, and then submit that to the cour, so that at the conclusion of hearing, the case will remain open and the judge will say, ‘Here’s 100 days, then you have to submit your closing briefs’. We submit our closing brief. At that point, the case is closed, no new evidence comes in, and then the court will make a written decision usually within 30 days at that point.

MB [7:38]:

And then that’s it at that point. I mean, you can always appeal beyond that, I guess, if you wanted to. But really, that’s kinda the end of it.

RI [7:44]:

Right, and I don’t know how many cases are appealed. But then the court makes its decision, and you’re right, unless it’s appealed, that’s the end of it.

MB [7:53]:

Alright, well, thanks so much, and that sort of concludes our whole beginner’s guide that we’ve been doing. We’ll have other podcast with you as well, but we’ve gone through all the steps from the beginning all the way to this final hearing. So thank you for all your time.

RI [8:05]:

Thanks!

MB [8:08]:

Thanks for listening to another edition of Special Education Matters. For more information, including show notes, head to our website csnlg.com/listen. And if you like what you hear, please consider giving us a review on iTunes. Those reviews bring us lots of happiness. I’m your host, Michael Boll, and we will talk again soon.

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