The Course of Due Process

By Getty, Laura A.; Summy, Sarah E. | Teaching Exceptional Children, January/February 2004 | Go to article overview

The Course of Due Process


Getty, Laura A., Summy, Sarah E., Teaching Exceptional Children


Cildren with disabilities are entitled to free, appropriate, public education as defined by the Individuals with Disabilities Education Act (IDEA) 1997 reauthorization. Growing from parents' desire to have their child's educational needs met, due process for students in special education has been mandated since the inception of the Education for All Handicapped Children Act in 1975 (Public Law 94-142). The right to due process ensures children with disabilities equal treatment as compared to that of their peers without disabilities, as mandated by law.

Due process hearings are the principle vehicle for resolving disagreements between school districts and parents of children with disabilities concerning identification, evaluation, placement, or provision of a free, appropriate, public education (Katsiyannis, Yell, & Bradley, 2001).Three pertinent areas of due process hearings include

1. Due process procedural guidelines.

2. Litigation and noncompliance on the part of the school.

3. Effects of a due process hearing on the parties involved.

IDEA 1997 serves to guarantee the equal treatment of all students in a school district. IDEA 1997 Part B ensures procedural safeguards to make certain equal treatment prevails. The primary procedural safeguards include

* The right of parents or guardians to examine their child's records.

* The responsibility of the school to notify and include parents or guardians in educational meetings and decisions, specifically child identification, evaluation, program, and placement.

* The right of parents or guardians to pursue mediation or a due process hearing.

Due process hearings are a last resort to resolve conflicts or problems between school districts and parents. They are requested by parents or guardians, students (upon reaching the age of majority), or school districts. Parents and guardians are often the party that initiates the request, although there have been instances wherein school districts have initiated a due process hearing. Since 1997, when the 1990 Act was reauthorized, parents have had the option of using mediation instead of, or prior to, a due process hearing. Mediation is voluntary and must not interfere with the right of a parent or guardian to request a due process hearing.

Due Process Reviewed

An accurate number of due process hearings is difficult to ascertain because many variables must be considered. School districts often decide that it is more expedient to meet the requests in question than to proceed in due process. When cases do proceed and the ruling is in favor of the school district and the law has not been violated, those cases do not become part of the statistic. Fiedler (2000) reports the number of due process hearing requests has increased nationally from 4,125 in 1991 to 5,497 in 1995, an average increase of 7.5% annually.

Most due process requests address placement or program issues (Newcomer & Zirkel, 1999). Havey (1999) reported that parents and guardians tended to seek a more restrictive setting in 67% of the cases in which placement was an issue. Other reasons parents might request a due process hearing include

* Denial of their child's free and appropriate public education (East Penn School District v. Scott B., 1999).

* Reimbursement for outside services such as private school placements or therapy services (Frank S. v. School Committee of the Dennis-Yarmouth Regional School District, 1998).

* Recovering attorney fees (Anderson v. Thompson, 1980; Holmes v. Millcreek Township School District, 2000).

These issues dominate the cases reviewed between 1980 and 2000; however, there are many unique reasons for requesting a due process hearing.

A significant factor regarding due process is the financial issue. It is often cost effective to meet a parent's request over a dispute. For example, the Michigan Office of Special Education Early Intervention Services found the average cost of a due process hearing fluctuated between $13,000 and $61,000 at the local level in 2001 and between $2,000 and $137,000 in 2000 (personal communication, August 15, 2002). …

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