Due Process -- What's the order of events?


1. The request for a due process hearing is submitted to your state's education agency and to the school and cooperative or interlocal simultaneously and details what the issues of contention are and what the proposed resolutions are, to the extent known by the parent.


2. Your state's education agency assigns an independent hearing officer (IHO) to your case from a rotating list.


3. The IHO will contact the school and your attorney to set up a time for a prehearing conference. (To learn what happens at the prehearing conference, see the memo entitled “What Happens During a Prehearing Conference?”


4. Both parties (the school and parents) will prepare their case for hearing. I will give you “homework assignments” to help me prepare your case for hearing. This is helpful to me and also helps keep your legal fees lower. Before we go to hearing, I will share with you my due process trial plan so that you have a roadmap as to where we’re going and how the hearing will be conducted. We’ll also talk (or email) frequently while we’re preparing your case for hearing. Generally, I also meet with the family the night before the case begins to go over any last-minute questions you might have.


5. Sometimes the parties go to a mediation before a hearing, and if you believe there’s a chance of resolving your case with the school, I would highly encourage an attempt at mediation. The school has to pay the cost of the mediation, and generally the parties go to the mediation without their attorneys, who are on call via phone for questions.


6. The hearing will be conducted according to the plan devised at the prehearing conference.


7. If we are the ones who requested the hearing, we go first during the hearing, which means we will do our opening statement first, followed by the school’s opening statement, then put on our witnesses, then the school will put on its witnesses. Then we’ll either do verbal closing arguments, written closing arguments or closing briefs. I generally prefer to do verbal closing arguments in order to keep the legal fees down and because the hearing officers in this state are very well-versed in the laws, arguments and different areas of disabilities. However, sometimes the schools insist on doing written closing arguments or closing briefs, and I will ask you if you want me to do a verbal closing or to match them on the written closing or brief.


8. At the end of the hearing, the IHO will state when the decision will be made and mailed to the attorneys for both sides. He or she also will ask if you want an electronic or printed-out copy of the transcript. Electronic versions are easier to use/copy/email to others. However, if you decide you want a printed version later, it’s pretty tough on your printer to print out what can be more than a thousand pages of transcript.


9. Each party has a right to appeal the decision of the IHO. In Texas, appeals can be taken directly to state or federal court. However, in Indiana, any appeal must be filed with the Board of Special Education Appeals (BSEA) within 30 days of the receipt of the decision. Either party can request an extension of time to submit their appeal (called a Petition for Review) to the BSEA. After one side submits its Petition for Review, then the other side has 10 days to submit a response. Again, the party wishing to submit a response can ask for an extension of time to do that. I would say that MOST of the IHO decisions are affirmed by the BSEA, though it occasionally overturns a hearing officer’s decision. IMPORTANT: An appeal of a hearing officer decision won’t be successful if the basic argument is “We disagree with the hearing officer.” A successful appeal will have to show that the hearing officer’s decision was one of the following:

(1) Arbitrary and capricious;
(2) An abuse of discretion;
(3) Contrary to law, contrary to a constitutional right, power, privilege or immunity;
(4) In excess of the jurisdiction of the independent hearing officer;
(5) Reached in violation of an established procedure, [or]
(6) Unsupported by substantial evidence.


10. If someone is STILL unhappy with the Board of Special Education Appeals decision, then that decision can be appealed to either federal or state court. Again, we cannot reargue the case or say merely that we disagree with the decision. It has to be because of some violation by the board in rendering its decision.


11. If there is no appeal to the BSEA and no agreement from the school on the payment of your attorney fees, I would have to file a suit for fees in federal or your local court. In this suit for fees, we have to show that we prevailed on some substantial issue and that the hourly rate and hours expended on your case were reasonable. (I haven’t had anyone argue that the hourly rate or hours expended weren’t reasonable yet. Usually the argument is did we prevail on a substantial issue, and our definition of substantial can vary from the school’s definition. Then the court will get to decide.)


What happens during a prehearing conference?

The prehearing conference is a conference call that includes all the parties involved in the due process matter. This includes the parent(s), school’s representative(s), school’s attorney, your own attorney and the independent hearing officer (IHO).


The IHO is in charge of the conduct of the prehearing conference, which is almost always tape recorded.


Purposes of the Prehearing Conference

1. Generally the purposes of this prehearing telephone conference are to handle all the details of making the hearing happen. We are NOT going to argue the merits of our case, and the hearing officer will make NO decisions about the outcome of the case at this point, though he might form general impressions of the parties during the prehearing.

2. Choose dates for hearing.

3. Solidify the issues (which we will have already listed in our due process request letter, although someone might have a question about some detail).

4. Decide if the hearing will be open or closed.

A. Open means anyone who is not a witness can come in and observe the proceedings. The advantage to this is that you can invite your supporters out there in the community, family members, church members or even the news media. Another advantage to an open hearing is that if you have a witness of your own testify, once he or she is released from testifying, he or she can attend the rest of the hearing and observe the proceedings. The disadvantage to an open hearing is that school employees who are not testifying can come in and observe, and sometimes this makes the parents uncomfortable.

B. Closed means that no one besides the parties and any witness who is testifying currently can be in the room. Advantages to this: You can keep nosy folks out. Disadvantage: You can’t invite your own supporters.

Parents ask me which I, as their attorney, prefer. I truly do not care one way or the other as to whether your hearing is open or closed. Do what you feel most comfortable with.

5. Establish deadlines for discovery. This deadline is generally five days or more before the first day of the hearing. We have to give the school’s attorney AND the hearing officer a copy of all the documents/tapes any other tangible evidence that we intend to introduce, as well as our witness list and a list of our exhibits. The school must provide the same thing to us. If we do not do this, then we might have any undisclosed witnesses or evidence excluded.

6. Decide if we need any special accommodations, such as wheelchair access, speaker phone use, other needs.

7. We’ll also choose a location. Generally the hearings are held in an administration building or a co-op/interlocal building. However, if you would like to have the hearing held at a neutral location, such as a hotel or community center or library, for example, we can request that. This is an example of an expense of litigation that the school is responsible for paying. Again, I personally have no preference as to location.


Can the parents speak during the prehearing?

Yes, in fact, I would encourage you to jump in and answer questions that you would more readily know the answers to off the top of your head. For example, if the hearing officer asks the age of your child, you’ll be able to answer that question more quickly than I will.

Certainly if you hear something that you believe is a misstatement or something that needs to be clarified, you can feel free to jump in and correct the statement.

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