SUMMARY OF A DUE PROCESS HEARING 

The following is a summary of the legal/administrative process in regard to a parent initiating a due process complaint (lawsuit) against a school district; a complaint filed before the California Office of Administrative Hearings (OAH) – Special Education Division.

An example of when a due process complaint is appropriate is when a school district and a parent disagree about a placement or the scope of services offered within an IEP or the school district fails to offer eligibility; and the school district's refusals are in conflict with special education law. Accordingly, under such circumstances both federal and state laws have developed a process for an administrative law judge (ALJ) to resolve the conflict.

To begin the administrative resolution process, the parent or their attorney drafts a complaint; not much different than a lawsuit complaint filed in a regular courthouse; for example, a superior court.  The difference is that the case is filed with an administrative court, the OAH.  The case will be heard by an ALJ familiar with special education law.  The case will be decided by the ALJ, not by a jury.

Once a complaint is filed by a parent, the school district must meet with the parents in an informal meeting, known as a “resolution meeting.” The resolution meeting does not include an independent third party, such as a mediator. However, the parents can have an attorney present at the resolution meeting.  The purpose of the resolution meeting is to resolve the conflict, without the need for any further proceedings.  Sometimes, resolution does indeed occur at these meetings, but most often that does not happen.

Shortly, after the resolution meeting takes place a mediation meeting is scheduled. The OAH assigns a judge familiar with special education law as a mediator to help the parties resolve the matter, without the need for a hearing.

Most cases that enter mediation are resolved at mediation or shortly thereafter.  The mediator listens to the positions of each party and uses that information to persuade the parties to bring the matter to early closure in as fair and equitable manner as is possible.  In other words, the OAH mediator acts as a facilitator.  The mediator does not have any authority or power to force any one person to take any particular action.  However, as the mediator is an experienced OAH judge, his or her credibility is significant in resolving the conflict.

It is helpful to have a mediation brief prepared before the mediation, such that the mediator can have a better appreciation of the case.  Additionally, key documents should be brought to the mediation, such as assessments. You want the mediator to understand the persuasiveness of your case in as concise a manner as possible.

Approximately, 95 percent of special education due process cases filed with the OAH are resolved in one manner or another, without an actual hearing. The remaining cases are heard by an OAH administrative law judge. 

When a case proceeds to a fully hearing, typically, the case will be presented over several days, with witnesses being called/subpoenaed and evidence/documents being addressed. The hearing is similar in format and substance to a lawsuit heard before a judge in superior court; for example, motions are made and objections are heard by the judge. Most often, the school district will be represented by a defense attorney.

Additionally, there are numerous pre-trial logistical matters to take care of.  These include preparing and exchanging exhibits, preparing a pre-hearing conference statement, subpoenaing witnesses, and drafting an opening statement.

The most important task is for the parent/attorney to complete is a hearing strategy that will focus on what does the child require (e.g., placement, services, eligibility); the law that supports the request (e.g., IDEA, California Education Code, Case Law) and the evidence that substantiates the request (e.g., expert opinions, assessments, IEPs, school records, witness observations).

An ALJ will generally not make a decision upon the close of the hearing.  A written decision will be made by the ALJ shortly thereafter. 

Approximately, fifty percent of the time the school districts prevail at the hearing on all issues; of the remaining 50 percent a significant number results in split decisions with the parents prevailing on only one or some of the issues.   For example, in the 4th quarter of the 2009 fiscal year, parents prevailed on all issues only 16 percent of the time. In 38 percent of the time, there was a spilt decision. Of the split decisions, the parents prevailed on 25 percent of the issues and school districts prevailed on 75% of the issues. Accordingly, as most cases are resolved in mediation the best strategy is to begin preparing for mediation as soon as the due process complaint is filed with the Office of Administrative Hearings.

For purposes of simplification, some liberty has been taken to explain the logistics of a due process hearing. Accordingly, the summary provided herein may not apply to every situation; thus, legal advice should be obtained from an attorney familiar with special education law and the facts unique to your legal matter. Key documents must be properly prepared and filed on a timely basis, otherwise, the child's case may be adversely affected.

For a detailed explanation of a due process filing, parents are encouraged to refer to the following OAH publication, “Guide to Understanding Special Education Due Process Hearings”: www.documents.dgs.ca.gov/oah/SE/SE Guide to understanding DPH.pdf

The publication also contains an excellent glossary of special education terms