When parents and school districts are in dispute about what special education should look like for a student, they have the option of filing a request for due process. The IDEA provides this method of dispute resolution to afford the parties an opportunity to have their matter presented to, and decided by, an impartial hearing officer. Due process hearings in Ohio are relatively rare; most cases are settled without the need for a hearing. But when a hearing is necessary, it resembles a bench trial with witnesses, examination and cross examination, presentation of exhibits and finally a written opinion by the hearing officer deciding the outcome of the case.
Participating in a due process hearing is not something parents or their attorneys should take likely. Due Process should always be a last resort, when every other attempt to resolve the issues has been attempted but has failed to result in necessary assistance for the child. Parents, even parents who may be attorneys themselves, are advised to seek assistance from an attorney when due process becomes necessary.
In choosing an attorney, parents should assure themselves that the individual has experience, not just in practicing law, but in the handling of special education matters, including due process hearings. Vetting an attorney should be a part of every parents’ effort to assure they are receiving experienced representation for their case. It is imperative that parents inquire as to how many hearings the person has handled, whether they have won any, and must assure themselves that the attorney can explain the process to the parents. Parents also need to understand the costs associated with a due process hearing even if they are not paying their attorney. Many attorneys will accept cases without requesting fees from the client, but generally the client is required to front the costs associated with the hearing, most particularly expert witness fees. Winning at due process is difficult even when parents have a lawyer. Winning without experts is virtually impossible.
Winning a due process hearing also requires a strategy, just as in any type of litigation. It is critical at the outset to develop a theory of the case, i.e. how did the District’s failures result in this student’s difficulties. Most important though is to develop a remedy which will explain to the hearing officer how your requested services will help this student. If an attorney is not able to present evidence to answer that very critical question, the likelihood of prevailing is slim. In Ohio, there are hearing officers who have found denials of FAPE but have refused to order any relief where no evidence was presented as to remedy. Generally this evidence must be presented through expert testimony. Remember that hearing officers want to know not just what the problem is– they also want to know the proposed solution.
Developing the plan to present evidence in a due process case is critical to relating the story of the student’s struggles. Each and every document or witness must have some purpose in furthering this narrative. Unnecessary evidence takes away from the case and distracts the hearing officer from focusing on the theory of the case, whatever that is. Since there is no discovery in a due process hearing in Ohio outside of the disclosure conference, attorneys must make use of every opportunity to see all of the student’s records. At times, obtaining records can be a challenge but it is critical to persevere in this effort, even if the records do not appear until after the hearing has begun.
Adequate preparation of witnesses is also essential to success. Parents and experts need to be prepared not just for the questions coming from the parent’s attorney, but for the likely cross examination from the District. Generally the district’s defense will be contained either in the response to the due process, or in a Prior Written Notice. From there it ought to be possible to predict the likely questions on cross.
The presentation of evidence must tell a story. Often that story is told through the testimony of the District staff. Since no depositions are permitted, a thorough familiarity with the documents is essential. The parent’s attorney usually does not know what the District witnesses will say until the words emerge from their mouth. Without an exhaustive knowledge of the records, it is impossible to formulate the questions spontaneously as is necessary in a due process hearing.
By the time the hearing is concluded, the hearing officer should have received a clear picture of what happened to the student, how it happened, and what is necessary to fix it. If these things are not wrapped up for the hearing officer, it is unlikely that any gaps will be filled in by the hearing officer him/herself.
Professional conduct at a due process hearing is essential. That rule applies equally to school districts and their lawyers, as well as to parents and their lawyers. While parents may get understandably emotional, there is no excuse for nasty or brutish behavior. If the other side gets nasty, it is best for the parents and their lawyer to “take the high road.” Often when school districts, or parents, feel that the case is not going well, they may engage in personal attacks to those on the other side. It is best not to engage with that. Hearing officers hate unprofessional attorneys and parties.
Generally this office requests a “sequestration of witnesses” before the hearing so that district staff who may be on the witness list are unable to attend the hearing and listen to the testimony before their own turn on the witness stand. This separation of witnesses does not impact a parent’s right to have an open hearing where members of the public, including friends, can attend.
Parties are usually required to write a brief after the hearing to explain their respective positions to the hearing officer by identifying the relevant law and applying it to the facts of the case. Brief writing is a highly technical skill and parents ought to know that their attorney has extensive experience in brief writing. Attorneys should always send their brief to the client before it is filed to assure that it accurately reflects the client’s position even if the client may not understand all of the legal jargon.
Due process proceedings are often lengthy, expensive and can be emotionally draining for parents. However, there are times when a hearing is necessary in order to improve the education and life of a student after other options have been exhausted. If parents are not sure whether a hearing is necessary, they are free to seek a second opinion just as they might for a medical issue. In making a decision of this nature, sometimes another opinion is not a bad idea.