Special Education Tip-of-the-Day: Due Process—What Happens at the Due Process Hearing

by Rose Daly-Rooney, Legal Director

This post provides information about due process hearing procedures and offers a “to-do” checklist if you are preparing to represent yourself at the hearing. Together, these give you a sense of the work involved in a due process hearing.

You have the right to request a due process hearing to resolve disputes about identification, free appropriate public education (FAPE), discipline, and placement. Sometimes, due process is the only way to resolve a problem. In nearly all cases, a due process hearing is required before you can file a lawsuit under IDEA. But, a due process hearing is a formal and complex process that takes significant time, money, and energy. Before you file a due process complaint and activate the applicable timelines for a decision, evaluate your case and prepare for the hearing.

The Pennsylvania Department of Education (PDE) recommends in its Due Process Guide for Parents that parents take the following steps before filing a Due Process Complaint:

• Gather all relevant educational information about your child.
• Learn what the law says about your child’s particular situation.
• Understand the school district’s position, whether you agree with it or not.
• Determine whether a hearing officer has jurisdiction over your concern.
• Understand due process hearing procedures.
• Based upon all of this information, determine if a due process hearing is how you want to proceed.

While there are differences among states about specific due process procedures, these recommendations are true for parents in Arizona facing the question of whether to file a due process complaint.

If possible, hire an attorney who specializes in representing parents and students in due process hearings to evaluate your case and represent you. If that is not possible, get legal advice to guide you in preparing for due process.

Due Process Procedures

The Hearing Officer. Due process hearings are conducted on behalf of the Arizona Department of Education by the Arizona Office of Administrative Hearings (OAH). The OAH employs full-time administrative law judges (ALJs), all of whom are attorneys licensed to practice law in Arizona. The ALJs assigned to hear special education due process hearings are knowledgeable about the IDEA and receive yearly training.

Attorneys at the Hearing. You may be represented by a lawyer or represent your child yourself (pro se representation). Although an advocate may not provide legal representation, a lay advocate may accompany you to a due process hearing for the purpose of providing you with a consultation during the hearing. The school district will be represented by a lawyer.

The Location of the Hearing.  The hearing may be held at the OAH or at a location convenient to the parties.  This will be determined during the pre-hearing conference, as discussed in yesterday’s blog.

Steps at the Due Process Hearing. The hearing officer will begin the proceedings by announcing the case, case number, and stating the issues that are the subject of the due process hearing. Each party makes an opening statement. The party that is seeking remedies or relief is the party that goes first. In most cases, that means you, the parent, will present your opening statement first. After making your opening statement, you will need to be prepared to introduce written documents and paperwork (exhibits) that help prove your case and call and examine your witnesses. After you have introduced your exhibits and witnesses, the school has the opportunity to do the same. You will have an opportunity to question their witnesses just as they have the same opportunity with your witnesses.

Questioning Witnesses.  When you are presenting your case, you will call your witnesses and question them (called direct examination). After you question each of your witnesses, the school’s attorney has an opportunity to question your witness (called cross-examination). If you wish to ask additional questions of your witness about the information that came up during cross-examination, you will be able to ask the witness more questions after the cross-examination is finished (called re-direct examination). While you are questioning your witnesses, you may introduce exhibits and have the witnesses testify about them. For example, if you had an Independent Education Evaluation performed, you may have the evaluator testify as your expert witness. She may testify about her report, which would be an exhibit.

After both parties have presented their exhibits and witnesses, including expert witnesses, you will both have the opportunity to make a closing argument. A closing argument is a summary of how the law and the facts support that you should win. You can ask that the closing argument be submitted in writing, and the ALJ has discretion about whether to agree to such a request. If not, you need to be prepared to discuss the high points of the witnesses’ testimony and documents that support that the IDEA was violated and the requested remedies are necessary.

Here is a to-do checklist adapted from information in PDE’s Due Process Guide that gives you an idea of the work ahead:

• Disclose your list of witnesses and exhibits as required by the ALJ in the hearing instructions. Become familiar with the ALJ’s instructions and the OAH procedures.
• Review the school’s answer and be familiar with why they do not believe the IDEA has been violated and why you are not entitled to the remedies you seek.
• Talk to the school attorney if there are a core set of exhibits you both agree should be introduced and marked as joint exhibits (e.g. IEP, evaluations, Prior Written Notice documents).
• Mark and copy four copies of each of your exhibits (one each for you, the school, the hearing officer, and the witnesses to look at during testimony).
• Put your sets of exhibits into binders and tab each exhibit to find them easily during the hearing.
• Double-check the date, time, and location of the hearing.
• Confirm with your witnesses that they know the date, time, and location of the hearing.
• Determine if any witness (yours or the schools) will need to be subpoenaed and follow the ALJ and OAH’s procedures for issuing subpoenas.
• Arrange for the subpoenas to be served on the witness and do so in sufficient time.
• If your key witnesses are not available on the day of the hearing, follow the ALJ’s instructions for requesting that the hearing be rescheduled.
• Make sure your witnesses will be available all day for the hearing. If they are not, work out the time they will be available with the hearing officer and the school attorney so the hearing will run smoothly and your witness will be able to testify.
• Know what to expect from your witnesses. Talk to them about what their personal knowledge of the events is or, in the case of the expert witness, what their qualifications are and expert opinion will be.
• Let your witness know what to expect. Explain to them that they will be under oath and will need to answer questions truthfully. Make them aware that the school will be allowed to ask them questions when you are done questioning them. Let them know that the hearing officer may ask them questions too.
• If possible, have your expert witness testify in person or telephonically and make special arrangements regarding when she is available.
• Make all necessary arrangements for you to be present at the hearing: arrange for time off from work, child care and/or transportation.
• Prepare your opening statement.
• Determine the order you will call your witnesses. If possible, begin strong and end strong. Keep in mind that while you and the school know this dispute, the ALJ will be hearing many of the facts for the first time.
• Write out a list of non-leading (open-ended) questions (or at least a list of topics to be covered) during the examination for each witness you intend to call (e.g., “How did the school respond to my child’s behavior?”)
• In the list of questions for each witness, identify any exhibits you want to submit during their testimony or question them about (e.g., PWN document with special education director).
• Write out a list of leading questions for the school’s witnesses using exhibits and documents (e.g., “The speech therapist resigned in December 2017, right?”, “The district did not hire another speech therapist until May 2018, correct?” and “The district did not contract with other speech therapists from December 2017 to May 2018?”)
• Prepare an outline for your closing argument based on the anticipated testimony of your witnesses and the exhibits, which you can edit as the due process hearing proceeds. It will help organize your thoughts.

For more information and tips about direct examination, cross-examination, opening statements, closing arguments, and objections, see the PDE Due Process Guide.  Generally, tips about these topics do not involve different state rules, making it a helpful resource. This blog and this resource, however, are not a substitute for legal representation or advice.

Other resources for preparing for special education due process hearings:  Wrights law Articles on Due Process Hearings and the Center for Parent Resources and Information’s Due Process Materials.