There are various ways of resolving special education disputes between students and schools. Click on an item to find out more about it:
An assessment of the child is the first step in the special education process. Before a child may be deemed eligible for special education services, the child must be evaluated by qualified professionals and the Individualized Education Plan (IEP) team must meet to determine whether the child is eligible for special education services.
School districts have a legal obligation to evaluate and identify all children within their jurisdiction, including children who are in private schools or not in school, who are eligible for special education services. This requirement is often called “child find.” Many school districts do a poor job meeting their child find obligation. As a result, many children, particularly children with mental health problems, go unidentified and do not receive appropriate services.
Before a school district evaluates a child, the district must obtain the parent’s written consent to conduct the evaluation. School districts obtain such consent in a form called an “Assessment Plan.” The Assessment Plan must indicate the types of assessments to be conducted. School districts must assess children in all areas of suspected disability. Common areas of assessment are:
A signed assessment plan is an important legal document because it triggers critical legal time lines. Assessments must be conducted and an IEP team meeting convened within 60 days (not including school holidays of more than one week) from the date of the signed assessment plan.
Parents have the right to obtain a private independent assessment at their own expense. On occasion, school districts voluntarily fund a private independent assessment. Also, school districts may be required to fund a private assessment or reimburse a parent for a private assessment, if the school district fails to conduct an appropriate assessment.
The IEP is a written plan designed to meet the educational needs of a disabled student. The IEP must include the:
- Student’s specific educational placement and services
- Projected date for when the placement and services will start, including the frequency and duration of services.
- Student’s present levels of performance in all areas affecting his/her education— not limited to academics
- Areas that may affect the student’s education, including needs in the following areas:
- Motor skills
- Adaptive (self-help) skills
The IEP must include goals that can be objectively measured in all areas of need.
The IEP team includes parents, teachers, specialists, school officials, or anyone else knowledgeable of the student’s needs. Parents should be equal members of the IEP team, but unfortunately, all too often, school officials do not treat parents as equal members of the team. The unequal treatment of parents can jeopardize a student’s IEP and is a leading cause of legal problems.
At a minimum, an IEP meeting must be held annually. An IEP meeting must also be convened whenever a student demonstrates a lack of anticipated progress—if a disabled student is struggling in school, an IEP team meeting should convene to address the problem in a timely manner.
The IEP meeting is intended as a collaborative process where everyone who is knowledgeable about the student’s needs openly discusses those needs and develops the IEP.
The whole purpose of this process is to foster effective communication between everyone involved in the student’s IEP.
The special education hearing process is the legal way to resolve special education disputes between parents and school districts. It is recommended parents be represented by an attorney during this process. Without an attorney, the special education hearing process is overwhelming and intimidating. The outline below summarizes the process.
Step 1 —Complaint: This is a detailed written statement of the issues, relevant facts, and proposed resolutions. The complaint is written by your attorney based on the information and documents you provide.
Step 2 —Resolution Session: This meeting with parents is convened by the district within 15 days of receiving the complaint to resolve the dispute.
Step 3 —Mediation: This meeting is convened by the Office of Administrative Hearings using an administrative law judge (ALJ) as a mediator for the parents and district to help them resolve the dispute.
Step 4 —Administrative Hearing: This is a trial convened by ALJ in which both parties call and question witnesses and present documentary evidence.
Step 5 —Decision: The ALJ issues a written decision that is usually issued three to four weeks after the trial.
Within 15 days of the date the school district receives a due process complaint, the district must convene a resolution session to attempt to resolve the dispute. The purpose of the resolution session is to give the parties a final opportunity to resolve issues outside of a more formal dispute resolution procedure, i.e., mediation and hearing.
After your complaint is filed, you will receive a phone call or letter from the district notifying you of the time and date of the resolution session. The district should provide you with reasonable notice of the resolution session meeting. If the district does not provide reasonable notice of the resolution session meeting to the parents, it can be taken as a waiver of the resolution session meeting by the district.
Within 10 days of the date the school district receives a due process complaint, the district must provide a written response to the complaint. The failure of the district to provide such a response may constitute a waiver of the resolution session by the district.
The parties may jointly agree to waive the dispute resolution process. In general, the parents should and must attend the resolution session if the district insists on going through the process. Parents often feel intimidated by having to meet with school officials. The resolution session process is generally a poor way to resolve the dispute, because school officials control the process and the parties are not on equal footing.
If a parent goes to the resolution session without legal representation, they should simply go to the meeting and ask school officials for a written proposal to resolve the complaint. The parent should inform the school officials that they wish to share the proposal with their attorney and then end the resolution session.
The parent should feel free to contact their attorney by phone during the resolution session to ask any questions and discuss the process. The parent should not sign any agreement in the resolution session without first discussing it with an attorney.
If school officials use the resolution session process to intimidate or harass the parent, the parent should politely leave the meeting and end the resolution session.
Mediation is a voluntary process in which the parties meet with a neutral third party (the mediator) to attempt to reach an agreement to resolve the dispute.
The mediator is an Administrative Law Judge (ALJ) assigned by the California Office of Administrative Hearings. As mediator, the ALJ cannot hear the case if it goes to a hearing (trial) and cannot discuss the case with other ALJs who may be assigned to hear the case.
Mediation typically takes place at the school district’s administrative office. It is a confidential process that encourages open and frank discussion about the issues. Statements made in mediation cannot be used during a hearing. The mediator’s primary role is to facilitate an agreement between the parties; the mediator has no authority to resolve the dispute.
The mediator will then explain the process. Usually, mediation starts with introductions. Be prepared to spend the entire day in mediation. There will be a break for lunch or the parties may decide to order lunch in. The parties generally start the mediation in a room together.
After initial statements by the attorneys for the parents and school district, the parties may separate into different rooms for much of the day. This is called a caucus. For much of the day, the mediator will shuttle back and forth between the parties exchanging information and settlement proposals. During the initial meeting and when the parties are in caucus, your attorney will present your position on the issues and your proposal for settlement.
Dress conservatively, but comfortably for mediation. There is no need to wear a suit unless that is what you are comfortable in and normally wear on a business day. Bring a pen and paper to take notes.
Although you may feel uncomfortable or dislike the school officials, it is important for you to be respectful at all times. If they say something that upsets you, write it down and share the information with your attorney during a caucus.
The due process hearing is an evidentiary hearing where both sides can call witnesses and present evidence. All parties have the right to present oral and written argument. Each side has a right to receive a copy of the other side’s evidence and witness list at least five business days prior to the hearing.
Cases are heard and decided by the California Office of Administrative Hearings (OAH). OAH will assign an Administrative Law Judge (ALJ) to the case, who will conduct the hearing and issue a written decision. Both parties may subpoena and cross-examine witnesses.
Preparing for a hearing is time-consuming. For a parent, it involves reviewing all of the evidence and discussions with the attorney about the important events that led to the dispute with the school district.
Though California regulations say that the hearings are not conducted by the technical rules of evidence, OAH conducts the hearings in a formal manner. Typically, hearings are held at the school district’s administrative offices in a conference room or where the governing board meets. Most ALJs will have the room set up to resemble a courtroom.
These hearings vary in length and may take several days to complete. Two days is considered a short hearing.
As with mediation, it is best to dress conservatively, but comfortably. There is no need to wear a suit unless that is what you are comfortable in and normally wear on a business day. Bring a pen and paper to take notes.
Unlike mediation where both parties reach agreement to resolve the issues, in a due process hearing the ALJ decides the issues presented. The ALJ controls the outcome of the hearing, but the ALJ’s decision may be appealed to federal or state court.