The Decision to File for Due Process
Updated: Oct 6, 2021
A family is told by their district that their child with a disability can’t go to their neighborhood school because they only offer special education services at another school in the district.
A family is told by their district that their child can’t participate in a high school elective class because of their disability.
A family is told by their district that their child can’t ride the same bus as their sibling because they have a disability.
Unfortunately, these examples are not new or uncommon. And every day, families are put in situations where they must make tough decisions. Should they file for due process or stay silent and keep going through a system that they feel is beating them down?
To be clear, filing a due process complaint is nothing to take lightly. The process starts when a family writes a written complaint against a school because they think the rights of their child under the Individualized Education Program Act were violated in some way. A resolution meeting follows where both sides try to reach an agreement. But if no agreement is made, it goes to mediation where the school district and family will meet with an impartial mediator to work out any differences and come to a resolution.
So, what brings a family to the point of no return? Are there some common themes as to why families file for due process?
In reflecting with some families that have gone through the dispute resolution process, for many it comes down to this—the family has had enough! There isn’t just one reason that families decide to file for due process, but a multitude of small reasons piling on top of one another until there is a breaking point. Much like the old story of the straw that breaks the camel’s back, at some point, the family can’t take it anymore and then decides to go through with due process.
What if you have reached a breaking point? What is your next step?
State regulations associated with the IDEA dispute resolution processes can vary. The first step for any family is to contact their state educational agency, a Parent Training and Information Centers (PTIs), or Community Parent Resource Centers (CPRCs). To find the ones in your state you can click on this link from Parent Center Hub.
Typically, there is some guidance from the PTI or CPRC websites on the steps to filing a due process complaint in your state. For instance, here is the link to Parent to Parent of Georgia’s website about parental rights and dispute resolution. And here is the same information from Minnesota’s PACER Center on a page called Due Process Complaints and Hearings.
In addition to the resources about due process from each state, there is additional information from the Center for Appropriate Dispute Resolution in Special Education (CADRE) in the IDEA Special Education Due Process Complaints Parent Guide with companion videos.
Here is a link to the Parent Guide from Cadre.
And here are the companion videos that give an overview of due process complaints and what to expect after a due process complaint is filed.
Do you need a lawyer to file a due process complaint?
Note: this post is not intended as legal advice; only information to help you make an informed decision
In special education advocate Lisa Lightner’s post called “Should you represent yourself in Due Process? 6 Tips from a Hearing Officer” she notes:
For the families I work with, I always do everything but Due Process. Or, I should say, try every possible solution besides Due Process.
“Oh, because Due Process is stressful?” clients will ask me.
“No. Mediation is stressful. IEP meetings can be stressful. Due Process is brutal.” That’s the truth. And from a family standpoint, it really takes a toll on the family and should be avoided at all costs. It’s a system that is stacked against parents.
Filing a due process complaint is often just the beginning of what can be a long and stressful process. Sometimes the outcome is not what families and advocates had hoped. But, when a family has reached a point where they have run out of options to advocate for their child, it can be the only way to hold school districts accountable.
Have you gone through due process? What was your experience like, and what was the last straw for you?
Tim Villegas is the Director of Communications for MCIE, Editor-in-Chief of Think Inclusive, and the host of the Think Inclusive Podcast. Follow him on Twitter @TheRealTimVegas.