Due process procedures are an important part of the IDEA and allow parents and school districts the ability to seek an impartial hearing when a dispute arises regarding the provision of FAPE to a student. However, in some situations, it seems that school districts utilize due process procedures in order to force parents into an adversarial process and subvert the cooperativeness that is supposed to be the cornerstone of the IEP process under the law.
Too often, we hear in an IEP meeting, "you'll have to go to due process for that" in the place of an actual, meaningful discussion by the IEP team itself about what the child needs. School districts have policies - written or not - that they simply will not provide certain services or supports or placements at the IEP table, no matter what information is provided by the parents or the team in regards to the child's needs. In some situations, everyone sitting at the table - including all of the school district team members - may agree that the particular service being requested (for example, a 1:1 aide in the classroom or provision of individualized reading instruction) is required in order for the child to benefit from his/her program, yet the "administrator" at the IEP team will announce that the "district" has not authorized this service, and that parents would have to go to due process. The practice of refusing to even consider certain services when requested by parents at the IEP table pushes them to due process, strips the IEP team of the power to make decisions regarding a child's program, and blatantly ignores the requirement that parents be meaningful participants in decisions.
On top of this longstanding problem, we now see more and more instances where school district's choose to file for due process against parents, forcing them into an adversarial process. School districts aren't simply filing for due process in instances when a parent seeks an IEE (in which case the law actually requires the district to file for due process, unless the district is willing to fund the evaluation). More and more, they are filing against parents when FAPE is in dispute. And in some of these cases, there is not a situation where a parent has refused consent, and therefore the school district is seeking permission to implement a portion of the program that it deems necessary for the child to benefit. Rather, in some cases, the situation is that the parents have stated that the give their full consent to implementation of the program, but that they have concerns about it and do not believe that it is appropriate. The school districts that file in these cases are subverting the parents right to consent in part to the IEP and preventing the parent from choosing to file - if they want to seek a remedy - within the two year statute of limitations, and instead forcing the parents immediately into a highly adversarial situation in which they will have to incur the costs of proceeding with due process.
An even more alarming trend occurs when districts use due process procedures to prevent parents from accessing their other rights under the statute. The situation discussed in the article linked below presents the problem related to this issue - districts not only choose to file for due process against parents and drag them into an adversarial process or force them to file themselves - but at times they do so just to prevent the parents from being able to pursue available procedures via a state compliance complaint.
Parents have the right under the IDEA to file a state compliance complaint if they believe that a school district is not in compliance with the requirements of the IDEA or state special education laws. However, if a due process case is initiated that involves the same issues as are raised in a state compliance complaint, the state has the right to "set aside" those issues that overlap. Because of this, when a parent files a state compliance complaint, a district can then file a request for due process on the same issues, and then proceed to have the state "set aside" the parents' complaint. This problem gave rise to a recent letter from the Office of Special Education Programs (OSEP).
As OSEP points out in its recent letter, there may be many legitimate reasons why a parent chooses to pursue a state compliance complaint rather than a request for due process. Cost and time are big factors. Filing a state compliance complaint is relatively simply, efficient, inexpensive, and can be done quickly. There are not typically the same "litigation" type of costs associated with a compliance complaint that would be incurred if proceeding with due process (i.e. attorneys fees, expert fees, costs to produce copies of evidence, time away from work, etc). The law recognizes the need for a variety of available procedures for parents to pursue dispute resolution, and eliminating the choice of pursuing a state compliance complaint by filing for due process to thwart that procedure prevents parents from accessing their rights under the law.
OSEP states in part:
"While a public agency has the right to file a due process complaint, we believe that in some situations, 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."
In sum, OSEP's letter indicates why this practice on the part of school districts is inappropriate -
(1) Districts doing this are unreasonably denying Parents the right to pursue state complaint procedures afforded to them under the law;
(2) This unreasonably limits Parents' access to available dispute resolution options, including options that are less adversarial than due process;
(3) Forcing Parents into due process unnecessarily increases the time and expense involved in resolving the dispute; and
(4) The practice of filing for due process in these circumstances "harms the 'cooperative process' that should be the goal of all stakeholders."
Let us hope that this letter sends a message to school districts not only about the inappropriateness of filing for due process in this particular situation, but also in regards to the broader problems with filing for due process against parents. Ultimately, when school districts have a practice of doing so - when they do it often, and in order to force parents into adversarial situations - they are not just utilizing the available procedures under the law, but are rather utilizing those procedures in order to purposefully thwart the cooperative process that we should all be committed to.
To read more about the OSEP letter:
Disability Scoop Article: http://www.disabilityscoop.com/2015/04/23/schools-warned-due-process/20238/
Copy of OSEP Letter: http://www2.ed.gov/policy/speced/guid/idea/memosdcltrs/dcl04152015disputeresolution2q2015.pdf