Special Education Due Process Hearing

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The Individual with Disabilities Education Act ("IDEA") afford parents and local educational agencies the procedural protection of an impartial due process hearing. In California, the California Office of Administrative Hearings ("OAH") has jurisdiction over due process hearings and may hear any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education ("FAPE") to the child. 

In many respects, a due process hearing is like a courtroom trial. Rather than trying the case in front of a jury, however, the litigants try to their case before a trained, impartial hearing officer referred to as an Administrative Law Judge ("ALJ") in California. Because special education law is complex and presenting a legal case at trial requires knowledge of rules of evidence, witness questioning, and courtroom procedure, many parents retain legal counsel to help them present their best case to the ALJ.

Special Education Due Process Hearings in San Diego

Once it's evident that settlement negotiations aren't working out, litigants need to begin preparing for due process hearing. Due process hearings typically have 12-13 steps (step #8 is optional). Each step is briefly discussed below:

     Before the Start of the Special Education Due Process Hearing:

1. Subpoena Witnesses

Most witnesses at a due process hearing are employees of the school district. More often than not school districts will make their employees (e.g., teachers, assessors, etc.) available for due process hearing without the need to subpoena them. However, that's not always the case. So, it is imperative that parents (or their attorney) confirm whether the school district will make all necessary district witnesses available at due process hearing without the need of subpoena well in advance of the start of hearing. If the school district will not make some or all of these district employees available, subpoenas will need to be sent out.

2. Pre-Hearing Disclosures

Three business days before the Pre-Hearing Conference (See #4 below), the litigants must file their respective Pre-Hearing Disclosures, frequently referred to as a "Pre-Hearing Statement." The pre-hearing statement includes the exact legal issues to be decided, a list potential witnesses the litigant may call to testify, a list of documentary and demonstrative evidence, and other housekeeping details, such whether the litigant will require special accommodations (e.g., a translator for a non-English speaking parent).

The Pre-Hearing Statement is filed with OAH and served on the opposing side. 

3. Schedule Witnesses

After a party files for a request for due process hearing, OAH will automatically schedule three (3) days for hearing. The hearing may be shorter or longer than three (3) days. But all California Special Education 

4. Pre-Hearing Conference

Approximately ten (10) days before the start of the due process hearings, OAH will hold a Pre-Hearing Conference ("PHC") telephonically (or via video conference) with the litigants. During the PHC, the ALJ will clarify the legal issues to be decided as well as general housekeeping details such as how he or she prefers the evidence binders to be organized and so on. 

5. Exchange of Evidence Binders

Unlike other civil claims (such as personal injury claims), the litigants in special education due process hearing aren't allowed an opportunity to engage in pre-hearing discovery (such as deposing potential witnesses). Instead, the IDEA requires that the litigants exchange evidence at least five (5) days. This means the litigants might not even now about evidence, some of which could be damaging to one's case, until just five days before the hearing. 

in addition to creating an evidence binder for their personal use at the due process hearing, litigants need to prepare one for the judge, one for the testifying witness, and one for the opposing side (e.g., school district's attorney). The opposing side's binder must be delivered them at least five days before the start of the hearing. 

6. Meet and Confer with the Opposing Side

ALJ's generally order that the litigants "meet and confer" prior to the start of due process hearing. During this meeting, the litigants typically work to:

     (a) compare their respective evidence binders and eliminate duplicate documents;

     (b) reduce the number of witnesses, if possible; and

     (c) create a daily witness schedule.

During the Special Education Due Process Hearing:

7. Housekeeping

Before the start of due process hearing, the ALJ will conduct some housekeeping. Some common housekeeping items include:

     (a) Clarification of the legal issue(s);

     (b) Clarification of the legal remedies the litigants seek;

     (c) Overview of how the ALJ will run the hearing (e.g., break schedules, moving evidence into the record, etc.);

     (d) Review the proposed witness schedule; and

     (e) Discuss technology concerns (e.g., rules regarding recording devices).

8. Motions in Limine

Motions in Limine ("on or at the threshold" or "at the beginning") are used to limit the introduction of specific evidence or testimony during the due process hearing. These are optional motions, so not every due process hearing will include them. But Motions in Limine can be a potent weapon (either a shield or sword) when used properly as part of a well-developed trial strategy.   

9. Opening Statement

Both sides are afforded an opportunity to make an opening statement. A good opening statement will frame the issue(s) for the ALJ while highlighting expected evidence and/or testimony that shows why you're right. Opening statements in due process hearings tend to be on the shorter side, generally five to ten minutes.

10. Put on Evidence

It's at this stage the parties question witnesses and introduce documentary and demonstrative evidence. The party who filed the request for due process hearing has the burden of proof. In a due process hearing, the standard of proof is preponderance of the evidence, meaning that to win the plaintiff must show that he/she is more likely right than wrong. Preponderance of the evidence is not the highest standard of proof in civil cases; that honor belongs to "clear and convincing evidence." Nevertheless, proving one's case by a preponderance of the evidence is still a challenging prospect. This is particularly true because there is a rebuttal presumption that the school district has met its legal obligation to the child. In essence, the school district enjoys a presumption of innocence that must be rebutted by parents or their attorney through the introduction of persuasive evidence and witness testimony. Putting on a solid case requires knowledge of the relevant law and an ability to tell one's story through the evidence.

The party who filed the claim (and who has burden of proof) puts on their "case in chief" first. The filing party gets an opportunity to call witnesses and question them by direct examination. Then the non-filing party gets an opportunity to question them by cross-examination. After both sides have had a chance to re-direct and re-cross, the ALJ may ask questions of the individual witness and then allow both sides to ask questions based on the ALJ's questions and the answers that were elicited from the witness.

It is not uncommon to have 10 or more witnesses testify at a due process hearing. 

11. Closing Argument (Oral or Written)

At the conclusion of the due process hearing, the parties will have an opportunity to give an oral closing argument or submit a written closing argument. Personally, I have always chosen to submit a written closing argument. Generally, the ALJ will give the parties 7-14 days to brief their closing arguments depending on the number of legal issues and the relative complexity of those issues.

After the Special Education Due Process Hearing:

12. OAH's Decision

After the litigants have submitted their respective closing arguments (either oral or written), the ALJ has 45 days to issue a written decision. In reaching the decision, the ALJ will consider the evidence, determine the credibility of the witnesses, make factual findings, and then apply the relevant law to the facts. The decision will indicate who won/lost each issue before the ALJ. If applicable, the ALJ will also issue an order consistent with the decision requiring the parties take specific actions or prohibiting them from taking specific actions.  

13. Post-Decision Appeal

Each litigant has 90 days to appeal an adverse administrative ruling. The appellant (i.e., the party who appeals) can appeal to state or federal court. To learn more about the federal appeals process, click here.

Get an Experienced Special Education Attorney on Your Side

Paul is an experienced litigator and trial attorney. He has successfully litigated cases both in OAH and federal court. He loves the courtroom and won't back down from a challenge. While it's almost always better to reach a settlement agreement in special education cases if possible, you want an experienced attorney by your side when a settlement is out of the question and you need to take your case to due process hearing, or beyond, and where you'll need to convince a judge that you're right and the school district is wrong. 

Call today to schedule a free consultation.

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