Reverse Due Process: When the School Sues the Parent

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If a parent won’t sign an IEP, does the school system have the right and ability to sue the parent on behalf of the student? In the eyes of the system, the student would not be receiving FAPE.

Does the judge ever go against the wishes of a parent?

Yes, this does happen. It’s often called “reverse due process.” I don’t know how often it happens, but it is not unusual.

Reverse due process hearings are a defensive legal strategy used by school districts.

The motivation that drives reverse due process hearings is the school’s fear that the parents will prevail on a claim that the school’s IEP did not provide FAPE.

If a parent does not agree with the IEP because they believe it is not appropriate, the school may request a due process hearing against the parent. The school will ask the Hearing Officer or Administrative Law Judge to rule that the proposed IEP is appropriate.

If the HO rules that the school’s IEP is appropriate, the parent is unlikely to prevail on a claim that the IEP was not appropriate.

BUT, IDEA 2004 changed the rules for initial IEPs. Parents may refuse to consent to the “initial IEP” without any penalty or fear that they will be sued by the school.

A few months ago, the USDOE proposed to amend a regulation so parents could withdraw/revoke consent for their child’s placement in special ed at any time. If this reg is adopted, the school district would not use due process or forced mediation in response to the parents withdrawal of the child.

  1. Our school has changed placement and removed services with no evaluation. He’s needed same services and placement for medically complex OHI for 4 years. Recent TEA complaints also in our favor for school noncompliance and nonimplementation. School refuses compensation. School is Insisting on comprehensive medical evaluation by school staff with complete disregard of physicians recommendations. We are declining evaluation. And don’t agree with current IEP. Is it in their interest to file due process on us?

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