United States Department of Education Addresses School Districts’ Misuse of Due Process Proceedings

by Caitlin McAndrews, Esq.

McAndrews Law Offices, P.C.

 

The United States Department of Education, through the Office of Special Education Programs (OSEP) and the Office of Special Education and Rehabilitative Services (OSERS), has recently condemned a disturbing trend by some school systems to subvert parents’ use of the state complaint process. Under the Individuals with Disabilities Education Act, or IDEA, where a parent believes that a child has been deprived of services or other rights under IDEA, the parent has the right to file a complaint with the state education department, which must conduct an investigation to determine if the parental objection is founded. However, some school districts are responding to these parent complaints by filing a due process complaint and asking a hearing officer to decide the same issue. This process undermines the use of the state complaint process by parents, which is neither adversarial nor costly to parents, and in some cases can provide the relief that parents seek without the adversarial due process system.

 

OSERS and OSEP have jointly issued a Dear Colleague Letter which uses strong language with respect to school districts’ pursuit of a due process hearing where parents have filed a state complaint: “A public agency’s filing of a due process complaint after a parent has filed a state complaint on the same issues may unreasonably deny a parent the right to use the state complaint process. We question why a public agency would seek a due process hearing when there is already an active state complaint on the same issue or issues and where other opportunities for dispute resolution are available, such as mediation or informal or alternative dispute resolution procedures. It appears that in some instances, public agencies may have filed due process complaints against parents in an effort to prevent the state complaint process from moving forward.” OSERS and OSEP went on to state that these actions by school districts “may unreasonably limit parents’ dispute resolution options, and force parents…to participate in a potentially more adversarial, lengthy, and costly due process complaint and hearing.”

 

Naturally, such actions on the part of a school district could also have serious and costly (to the districts) ramifications with respect to the anti-retaliation provisions of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act. In circumstances where a district pursues due process in the face of a state complaint request by a parent, parents should seek the advice of legal counsel in assessing the actions of the district. McAndrews Law Offices provides free initial special education consultations, and handles most cases without any cost to families, and therefore eliminates most economic barriers of parents to obtaining essential special education legal services.