Richard Isaacs, Attorney and CSNLG Founder
With the start of the 2017-2018 school year well on its way, I have noticed more due process filings by school districts against families.
A due process hearing means either party, in this case, the districts, are asking the court system to intervene and make a ruling.
While this might sound alarming at first, it is often legally necessary for school districts to take such drastic actions. The law is clear that when parents request public funding of independent educational evaluations (IEE’s) the school district must fund the assessments or file for due process to show their own assessments are appropriate. The legal standard for assessment compliance is low and the courts are routinely finding district assessments comply with the law.
As such, school districts are filing more often.
Interestingly, and unfortunately, districts sometimes file for due process even when they know their assessments are not defensible. There is a clear strategy for them here: It helps them enter into a settlement agreement to fund the requested IEEs and thereby insulate themselves from liability. They add waiver language to the proposed agreement.
School districts are also filing more often to defend the appropriateness of their IEP offer. While the law merely states the school district may file to enforce its IEP, court decisions have recently come out holding districts liable if they do not file for due process. The ruling expects them to seek judicial intervention in overriding a parent’s lack of consent to necessary educational services. In other words, if parents do not fully consent to the proposed IEP, and the District believes the services are necessary, they are required to file for due process.
This is an unfortunate development in the law because it now elevates an IEP dispute to the litigation level. Parents are practically forced to hire an attorney to defend against the school district’s lawsuit.
Sadly, a recent court case has also called into question whether families can be represented at the administrative court level by educational advocates. For families who could not afford an attorney and advocate is a much less expensive option.
This appears to no longer be the case.
It is strange that the state of California is taking such an aggressive stance against parents who have children with special needs. With the increased filings against families, the shrinking of options parents have to defend themselves, California is moving backward.
If your school district ever files for due process against you it is important to seek legal advice on how to move forward. Regardless if you hire an attorney or not, you should at least contact an attorney who specializes in special education law and obtain a clear understanding of your rights. The Office of Administrative Hearings (OAH) has a list of low cost and free attorneys you can use to find a law firm that you feel comfortable working with.
As always, we are happy to help too.