What Is a Due Process Hearing?

Most parents are aware that when they have a dispute with their school district, they have various ways in which they can pursue a remedy on behalf of their child. One of those is to file a due process request. Due process in the special education context is an administrative proceeding that begins by filing a complaint with your superintendent. This complaint generally requests a hearing before an impartial hearing officer appointed by the Ohio Department of Education (“ODE”). Hearing officers in Ohio are attorneys who have specialized knowledge in matters relating to special education law. They are not employees of the State.

A due process complaint is basically a lawsuit against your school district; it is just not filed in a court (at least initially). Such complaints must contain specific information in order to be deemed “sufficient.” Check the requirements for a due process complaint. The school district has 15 calendar days from the date of the hearing request to convene a resolution session with the parent to address the issues raised in the due process complaint. Resolution sessions are similar to IEP meetings as far as who should attend. There are no third party mediators or hearing officers at a resolutions session. Parties may also request mediation which is an informal means of dispute resolution facilitated by a third person appointed by ODE. Mediation is voluntary and must be agreed to by both sides. Parties may have resolution or mediation or both, but if the school district demands a resolution session, the parents must attend or they cannot proceed to a hearing. Mediators do not make decisions for either party. Their role is to broker an agreement that will be acceptable to both sides.  

If the parties reach agreement at resolution or mediation, a written agreement must be entered into and signed by both parties. The due process case will then be dismissed. If no agreement is reached, the hearing officer appointed to the case will set hearing dates. The due date for a decision by a hearing officer is no more than 75 days from the date the due process is filed. Either side can request an extension of the decision date, which is a common practice in this area of the law simply because the timelines are so restrictive.  

At least five business days prior to the start of the hearing, the parties will have a disclosure conference where they must disclose all the documents they intend to present at the hearing, and provide the hearing officer and the other side with a witness and exhibit list. Due process hearings are frequently held on nonconsecutive days and sometimes occur over a period of several months to accommodate the parties’ schedules. The length of a hearing depends on the complexity of the issues, (and the verbosity of those presenting the evidence). Hearings are just like trials you may see on T.V.- each side can compel the attendance of witnesses through a subpoena issued by the hearing officer, and there is examination and cross examination of witnesses, evidentiary objections, etc. Most hearing officers require a legal brief from each side after the hearing to argue the relevant law and show how it applies to the facts that came into evidence at the hearing. While it is not necessary to have a lawyer representing you at a hearing, most parents would be smart to consider retaining one as the complexity of these proceedings makes it difficult for most parents to navigate. The special education laws permit parents who prevail at a hearing to recoup their reasonable attorneys’ fees from the school district.  

The hearing is transcribed by a court reporter and each side will receive a copy. The district must pay for the parents’ copy of the hearing transcript. After briefs are filed with the hearing officer, the hearing officer will issue a written decision within the time frames allowed or agreed to by the parties. Either side may appeal a hearing officer’s decision to a second tier administrative hearing officer within 45 days of the decision. Sometimes each side will prevail on some issues but not others so it is possible for both sides to appeal. The second tier in Ohio consists of a state level review officer who receives the record of the case, generally has the parties brief the issues remaining, and issues a decision within 30 days. Again, extensions are often requested. These second tier hearing officers may request a brief but usually do not allow additional evidence in the record beyond what was already admitted at the hearing. Once the state level review officer has issued a written decision, either side may seek review in federal or state court.

The decision to seek a due process hearing is not one that should be made lightly. Due process hearings are very labor intensive and time consuming. Preparation is key, particularly since Ohio does not permit any depositions or other pre-hearing discovery. You will not know what is going to come out in evidence until you are in the hearing. Many parents feel as though they want their day in court. But litigation is expensive, and is to be avoided unless there is no other option for the student. Some attorneys, including those in this office, will take some cases without payment, but the ability to do that will depend on the strength of the case, anticipated cost of experts and time available. Most attorneys charge a flat rate and will agree to try and collect the remainder of their fees if they prevail.  

Finally, parents who pursue due process need to know that if they or their attorney files a claim that is found to be frivolous or filed for an improper purpose, the school district can seek fees against them and their lawyer. Generally, it is very difficult for districts to obtain fees under this provision as the evidence necessary to prove that a claim was frivolous is quite high, as it should be. But this provision should give parents pause about pursuing claims on their own.  

When deciding whether to file a due process, ask the attorney about their track record. How many hearings have they had? How many were successful? How much will it cost? How long will it take? And most important, is what the student will be getting worth the time and expense of fighting 

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