Due Process Hearing

The Individuals with Disabilities Education Act (IDEA) gives parents of a student with disabilities the right to request a due process hearing on any matter concerning the delivery of a free appropriate public education (FAPE), such as the identification, evaluation, and placement of the child. School personnel may ask for hearings when parents refuse to consent to an evaluation or reject a proposed individualized education program (IEP). The party requesting a due process hearing must forward to the state education agency copies of the complaint containing the child’s name, address, and school attended. In addition, a complaint must include a description of the problem giving rise to the complaint.

States may establish either a one-tiered or a twotiered due process system. In one-tier arrangements, hearings are conducted at the state level. Two-tiered programs allow for local hearings with appeals of adjudications to state-level entities, generally review boards. Aggrieved parties must ask for hearings within two years of the events that precipitated the requests. However, in the event that state laws create different limitation periods, those laws prevail. This entry summarizes court decisions related to due process hearings.

Hearing Officers

Hearing officers must be impartial, meaning that they cannot be employees of the state or school board involved in the education of the children whose cases appear before them or have personal or professional interests in these students. Persons who otherwise qualify as hearing officers are not considered employees of their states or local school boards just because they were paid to serve as hearing officers.

The fact that hearing officers may be employed by another school board does not automatically make them biased. For example, in one challenge to the impartiality of a hearing officer, the Tenth Circuit held that a hearing officer’s employment by another school district did not violate the IDEA prohibition against working for the district involved in a hearing (L. B. and J. B. ex rel. K. B. v. Nebo School District, 2004).

The task of hearing officers is to sort out what took place and apply the law to the facts in a manner similar to that of trial court judges. Hearing officers are empowered to issue orders and grant equitable relief regarding the provision of a FAPE to students with disabilities. There are some limitations on the power of hearing officers. For example, hearing officers generally do not have the authority to provide remedies when broad policies or procedures that affect a large number of students are challenged or to address matters of law, because they lack the ability to consider a statute’s constitutionality. For the most part, the power of hearing officers is limited to the facts of the disputes at hand. The IDEA provides that the awarding of attorneys fees to prevailing parents in special education disputes is solely within the discretion of federal courts.

Interestingly, the IDEA does not contain specific language regarding the qualifications of hearing officers. Thus, it is up to individual states to establish their own criteria for the qualifications and training of hearing officers. In one of the few cases to address this issue, the federal trial court in Connecticut ruled that a state’s failure to train hearing officers was not a violation of the IDEA (Canton Board of Education v. N. B. and R. B., 2004).

Legal Requirements

The IDEA does not specifically assign the burden of proof in a due process hearing. In 2005, the U.S. Supreme Court resolved a controversy that had existed over which party had the burden of proof in Schaffer v. Weast (2005). Recognizing that arguments could be made on both sides of the issue, the Court saw no reason to depart from the usual rule that the party seeking relief bears the burden of proof. In IDEA cases, this is usually the parents. The assignment of the burden of proof is important, as it can well determine the final outcome in close cases.

The IDEA requires parties to exhaust administrative remedies before filing suits, unless it clearly is futile to do so. In other words, parties may not file suit until all due process hearings and appeals have been pursued. If administrative remedies are not exhausted, courts generally refuse to address issues that were not subject to complete exhaustion (T. S. v. Ridgefield Board of Education, 1993).

All parties involved in due process hearings have the right to be accompanied and advised by counsel with special knowledge concerning the education of students with disabilities. Inasmuch as it is a quasijudicial proceeding, the parties at a hearing may present evidence, compel the attendance of witnesses, and cross-examine witnesses. The parties may prohibit the introduction of evidence that is not disclosed at least five business days prior to hearings. The parties have the right to obtain a written or an electronic verbatim record of the hearing as well as of findings of fact and decisions.

The IDEA requires hearing officers to render final decisions within 45 days of the request for hearings. However, hearing officers can grant requests from either party for extensions or continuances of this time period. The decisions of hearing officers are final, unless they are appealed. In states with a two-tiered due process hearing system, when appeals are taken, final decision must be reached within 30 days of the requests for review. Once administrative review is complete, aggrieved parties may file appeals in either the federal or state courts. Aggrieved parties are generally considered to be the losing parties or those who did not obtain the relief sought.

Allan G. Osborne, Jr.

See also Disabled Persons, Rights of; Hearing Officer

Further Readings

  • Russo, C. J., & Osborne, A. G. (2006). The Supreme Court clarifies the burden of proof in special education due process hearings: Schaffer ex rel. Schaffer v. Weast. Education Law Reporter, 208, 705–717. 

Legal Citations

  • Canton Board of Education v. N. B. and R. B., 343 F. Supp. 2d 123 (D. Conn. 2004).
  • Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400 et seq.
  • L. B. and J. B. ex rel. K. B. v. Nebo School District, 379 F.3d 966 (10th Cir. 2004).
  • Schaffer v. Weast, 546 U.S. 49 (2005).
  • T. S. v. Ridgefield Board of Education, 10 F.3d 87 (2nd Cir. 1993).