The Importance of Legal Representation at a Special Education Due Process Hearing
by Heather Hulse, JD, MS, MA
McAndrews Law Offices, P.C.
Research has consistently shown that parents of students with special education needs who use legal representation at due process hearings have a significantly higher chance of prevailing and obtaining more favorable outcomes when compared to parents who do not have legal representation. As a special education attorney for over eleven years who practices special education law all day, every day, this is not at all surprising. The special education hearing process is not, by any means, easy to navigate for non-lawyers.
Many parents are under the assumption that their only option is to pursue their special education rights pro se or with an advocate rather than a special education attorney due to costs. However, because the IDEA provides that parents who prevail at a due process hearing are entitled to reasonable attorney’s fees at the expense of the school district, there are special education attorneys (including our office) who frequently provide representation at no cost to families. Parents should consider all of their available options and seek legal advice regarding possible claims for a denial of their child’s right to FAPE.
Special education due process hearings are complex and require highly specific legal knowledge of special education procedures and laws. A lack of such specific knowledge can be detrimental in obtaining successful outcomes in due process hearings. Special education attorneys can provide advice on effectively dealing with school districts to ensure better outcomes at hearings. Parents’ emotional investment can negatively impact their abilities to communicate effectively with school district personnel. It is also very important that due process complaints include specific necessary information and a special education attorney can insure due process complaints are sufficient.
Preparing for due process hearings, including preparing and responding to any prehearing motions, is also complex and requires highly specific legal knowledge that only a special education attorney can provide. It is important to remember that school districts will almost always be represented by counsel, which puts parents at a disadvantage throughout the proceedings if they are not represented. Special education representation can also insure all necessary documents are requested and complete.
In addition, it is also necessary to have expertise in handling the actual special education due process hearing. It is essential to know what evidence is needed to prove the student has been denied a free appropriate public education (“FAPE”). It is important to know the witnesses that need to be called to provide testimony to establish a denial of FAPE. Equally as important, the cross-examination of adverse school district witnesses requires significant expertise in non-legal education matters, such as protocol for testing and evaluations, and the specifics of particular testing methods or programs. Similarly, knowledge of the specific documents that should be submitted into evidence in order to establish a denial of FAPE is essential. Finally, parents are understandably emotionally invested in the outcome of the case, which can hinder their abilities to focus on the specific components necessary to establish a denial of FAPE.
- Cope-Kasten C. (2013). Bidding (fair)well to due process: The need for a fairer final stage in special education dispute resolution. Journal of Law & Education, 42, 501-540; Zirkel, Perry A. (2014). Are the Outcomes of Hearing (and Review) Officer Decisions Different for Pro Se and Represented Parents? Journal of the National Association of Administrative Law Judiciary, 34(2), 263.