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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.

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