Under the federal Individuals with Disabilities Education Act (IDEA), public school districts have a legal duty to follow the procedures outlined in the law in order to guarantee the rights of eligible students to receive a free, appropriate education. At the same time, parents of children with disabilities are entitled to participate fully in the process of making decisions about their children’s eligibility for special ed and their individualized education plan (IEP).
Not surprisingly, schools don’t always meet their obligations. And even when they do, parents don’t always agree with what school officials ultimately decide. When that happens, parents have access to two different types of procedures for resolving disagreements:
- administrative complaints for violations by schools of any requirement in the IDEA, and
- “due process” complaints for resolving disagreements over any aspect of a child’s special ed program or eligibility.
Procedural Failings vs. Due Process
The terms used for the two types of complaints can be confusing. Both are technically administrative rather than court proceedings (at least at the outset). To muddle things further, due process complaints deal with disagreements over facts (such as whether your child should be placed in a regular classroom or needs daily speech therapy) rather than procedures. “Due process” is a general legal principle that when people’s rights are at stake, they’re entitled to notice of the proceedings and an opportunity to be heard. In this context, due process refers to your child’s rights under the IDEA, as well as your right to take any disagreement with the school district to an impartial mediator or hearing officer.
When Schools Don’t Follow the Rules
The IDEA includes many detailed rules (in the statute itself as well as regulations) for the entire process of evaluating your child, determining eligibility, and making decisions about the specifics in the IEP. If your school district hasn’t met these rules, you should file a complaint with your state’s department of education and send a copy to your local school district. You might also decide to file a complaint with the U.S. Department of Education’s Office for Civil Rights (even though that office is primarily concerned with discrimination in schools based on disability).
You can file a complaint for any of a number of common violations by school districts, including a failure to:
- provide you with all of your child’s records
- meet the deadlines for conducting evaluations and holding IEP meetings
- give you the opportunity to participate meaningfully in an IEP meeting (for instance, by deciding ahead of time that the school won’t provide a service you requested because it’s too expensive)
- provide a service that was included in your child’s IEP
- notify you and get your approval before changing an IEP, or
- follow all the required procedures before suspending your special ed child.
After receiving your complaint, the agency must conduct an investigation and issue a decision within 60 days. If it finds the school district broke the rules, the decision will say what the district has to do to correct the situation. (34 C.F.R. §§ 300.151-300.153.)
When You Don’t Agree With the School’s Decisions
Even when the school district follows all the procedural requirements, you may not like what it decides at any step of the process, including the evaluation, determination of eligibility for special ed, and what goes in the IEP. You might try to work out your differences by meeting with school officials and negotiating informally. If that doesn’t work—or you think it would be useless—you can give written notice of a due process complaint to the school district and the branch of your state’s department of education that’s responsible for special education. The district will then arrange a meeting to try to resolve the dispute. If that doesn’t work, you have two options going forward:
- Mediation. During this voluntary process, a neutral mediator will listen to both sides and propose a settlement.
- Due process hearing. If you and the school district don’t agree to the mediator’s proposed settlement (or you want to skip that step), your case will go before an impartial hearing officer. The hearing is formal and similar to a court trial, with witnesses and evidence. The IDEA spells out the rules for these hearings, but some states have additional procedural requirements. The hearing officer will issue a written decision, including the reasons for it.
Both you and the school district have the right to appeal the hearing officer’s decision in state or federal court. Most of the time, you have to go through this entire process before you can sue the school district in court. But in some limited circumstances (such as emergencies that require a solution only available in court), you might be able to file a lawsuit right away. (20 U.S.C. § 1415(b)-(j); 34 C.F.R. §§ 300.507-300.515, 300.516.)
Questions for Your Lawyer
- For years, the school placed my daughter in classes for developmentally disabled students, but I’ve just discovered that she only has a hearing problem. Can I sue the school?
- Can I file both a due process complaint and an administrative complaint if the school district’s violation of the IDEA rules essentially deprived my child of an appropriate education?
- What are the risks and benefits of going through mediation in my case?
- Can the school move my child to a different placement while the dispute resolution process is still going on?
- Can I sue the school to get services for my child under other federal disability laws before going through the entire IDEA dispute resolution process?
- My state has practices that violate the rights of many students with disabilities—like shunting kids off to alternative programs that don’t provide an adequate education. Can you help me file a class action lawsuit along with other parents?