Home Advocacy > Due Process > How to Prepare for a Special Education Hearing by Brice Palmer

The Special Ed Advocate
It's Unique ... and Free!

Enter your email address below:

 

2014 - 2015 Training Programs

Oct 25 - Olympia, WA

Oct 30 - Phoenix, AZ

Nov. 1 - Grand Rapids, MI

Nov 6 - McAllen, TX

Nov 18 - DesMoines, IA

Nov 21 - Temecula, CA

Dec 4 - OKC, OK

Full Schedule

Be a Hero ...

 Jason at Ft. Benning
... to a Hero
Learn more

Wrightslaw

Home
Topics from A-Z
Free Newsletter
Seminars & Training
Consultations
Yellow Pages for Kids
Press Room
FAQs
Sitemap

Books & Training

Wrightslaw Books & DVDs
Wrightslaw Storesecure store lock
  Advocate's Store
  Student Bookstore
  Exam Copies
Training Center
Bulk Discounts
New! Military Discounts
Mail & Fax Orders

Advocacy Library

Articles
Doing Your Homework
Ask the Advocate
FAQs
Newsletter Archives
Summer School Series
Success Stories
Tips

Law Library

Articles
Caselaw
IDEA 2004
No Child Left Behind
McKinney-Vento Homeless
FERPA
Section 504
Fed Court Complaints

Topics

Advocacy
ADD/ADHD
Allergy/Anaphylaxis
Assistive Technology
Autism Spectrum
Behavior & Discipline
Bullying
College/Continuing Ed
Damages
Discrimination
Due Process
Early Intervention (Part C)
Eligibility
ESY
Evaluations
FAPE
Flyers
Future Planning
Harassment
High-Stakes Tests
Homeless Children
IDEA 2004
Identification & Child Find
IEPs
ISEA
Juvenile Justice
Law School & Clinics
Letters & Paper Trails
LRE/Inclusion
Mediation
Military / DOD
No Child Left Behind
NCLB Directories
NCLB Law & Regs
Parental Protections
PE and Adapted PE
Privacy & Records
Procedural Safeguards
Progress Monitoring
Reading
Related Services
Research Based Instruction
Response to Intervention (RTI)
Restraints/Abuse
Retention
Retaliation
School Report Cards
Section 504
Self-Advocacy
Teachers & Principals
Transition
Twice Exceptional (2e)
VA Special Education

Resources & Directories

Advocate's Bookstore
Advocacy Resources
Directories
  Disability Groups
  International
  State DOEs
  State PTIs
Free Flyers
Free Pubs
Free Newsletters
Legal & Advocacy
Glossaries
   Legal Terms
   Assessment Terms
Best School Websites

 
How to Prepare for a Special Education Due Process Hearing  

by Brice Palmer, Advocate 

"I need to request a due process hearing. What steps do I need to take to prepare?"

You ask for advice about how to prepare for a due process hearing or administrative review. In my estimation, preparation from the beginning is crucial to success.

I take direction from Otis the Wonder Dog regarding the chase: If you do not plan and organize the pursuit, you are likely to wind up as road kill.

Pre-hearing management by the independent hearing officer provides an opportunity for the parents and school district to wade through these issues informally, before an evidentiary hearing actually begins.

Your first opportunity for effective advocacy occurs at this hearing. This is a different type of advocacy than advocating at IEP meetings or evaluation meetings.

Your job is to present your case in an organized manner that gives the decision-maker enough factual information to reach a conclusion in your favor

For purposes of planning and organization, assume the decision-maker (who may be an employee of the school district) can and will make an objective decision that is based on the facts of the case.

Do not attempt to present your case or argument in a "lawyerly" way. Present your case as a cogent parent who is advocating for the rights and educational welfare of your child. The system allows you to present your arguments.

Organize the Records

First, organize your child’s educational records. Once your records are organized, you must make short, clear statements about what your grievance(s) are and whether any of these grievances are the kind for which relief (whether anything can be done about it) is available through the decision-maker .

For instance, it is of no use to file a complaint alleging that X, who is IDEA eligible, has not been provided with Nike basketball shoes, unless the IEP team determined that Nike basketball shoes are necessary for X to receive a free appropriate education - AND - it was written into the IEP that X needs them. Whether X will be permitted to wear them home is another issue.

Explain What You Want

Explain to the decision-maker what was done, what should have been done, why it should have been done that way, and what you want the decision-maker to do about it.

After you clearly state your grievances and after you determine that your grievances can be remedied by the decision-maker , assemble facts that support your grievances (from here on out, your grievances will be called allegations).

Edit Your Request

To do this, I suggest you write out your allegations. Then go back to your draft and strip out every adverb and modifier possible.

When I get briefs and pleadings from opposing counsel that are full of words like egregious, wanton, gruesome, always, forever, scurrilous, etc., I immediately suspect that the writer has not spent the time necessary to do a complete factual investigation of the matter - and is unlikely to be prepared to effectively argue their client’s position at that point. Of course, there may be specific legal reasons for including these terms in a pleading or brief. Even the most experienced advocates and attorneys filter information and facts through their own values and prejudices.

The subject of drafting your complaint is tricky because lawyers draft complaints very carefully. You may not have the luxury of knowing how to draft a complaint that carefully sets forth the allegations and avoids potential pitfalls. Do not worry about this. If you ask for a complaint request form from your state department of education and fill it out properly, your complaint will likely conform to the rules.

Search your state department of education web site. You may not find anything - but you then again you may.

Categorize Your Allegations

After you clearly state your allegations, you should categorize your allegations instead of making broad allegations

For example, "denial of FAPE" is a broad umbrella that can be shown a zillion different ways under a gazillion different fact patterns. Ask yourself just what served to deny FAPE under your particular set of facts and circumstances. 

At this point, it is a good idea to ask someone else read your draft to test its clarity.

Find Evidence That Supports Your Assertions

After you identify what it is that denies FAPE, or whatever broad category you assert, you need to dig through the educational records and documents and look for evidence that shows you are correct in your assertion(s). This is a skill that is learned. There are those on this net who can help you with tips and hints.

Assume that you moved and your child brought a current IEP from the state of previous residence. In our experience, a school district that receives a student with an out of district or out of state IEP resents having to implement this IEP. There are any number of reasons for this. In the main, the basis for resentment is usually tied to the financial commitment necessary to implement the IEP.

There are usually unspoken reasons for resistance to implementing an IEP that is written out of district. In negotiations, unspoken objections interfere with finding a solution. To discover the reason for resistance, it is necessary to flush objections out. Often, if you ask boldly "why do you __________?" you will be able to get the subject on the table.

Present Facts to Convince the Decision-Maker 

Your job is to present your facts in a coherent way and convince the decision-maker that because of the school’s actions, or inaction, your child’s educational welfare is in jeopardy, and/or your child is receiving no educational benefit from the IEP program(s) and service(s) - and without corrective action, your child will continue to be harmed.

I realize that this may sound like a cut and dried clinical approach and does not approximate reality in the trenches. This is a blueprint of the way I would approach the situation from a planning point of view.

Advocacy is a Learned Art

Most of us learn to do it from so-called "life experiences" or from mentors. Lawyers call it "lawyering."

My reasoning is based on an assumption that the system is fair and that in most cases, it works. If you prepare your case in an organized manner and the decision in your case goes against you, you will be prepared to show that the decision was wrong or unfairly rendered.

Although you may not think you have advocacy skills, you probably do. A well-planned presentation, a calm attitude, a predetermined goal, and control over any anger you harbor will achieve more for your child than anything else.

Brice Palmer, Vermont Advocate 
Email: askotis@shoreham.net
 

Learn more about due process hearings.


Email Newsletter icon, E-mail Newsletter icon, Email List icon, E-mail List icon The Special Ed Advocate: It's Free!

 

Wrightslaw: Special Education Law, 2nd Edition, by Pam and Pete Wright
About the Book

Wrightslaw: All About IEPs
About the Book

Wrightslaw: All About Tests and Assessments
About the Book

Surviving Due Process: Stephen Jeffers v. School Board
About the DVD Video

 

Copyright © 1998-2014, Peter W. D. Wright and Pamela Darr Wright. All rights reserved.

Contact Us | Press Mission l Our Awards l Privacy Policy l Disclaimer l Site Map