School board attorneys have managed to turn special education due process hearings into all-out, scorched Earth lawsuits, as if it was Microsoft vs. IBM. In fact, they have convinced administrative hearing officers and judges that this is the way it should be.
But Due Process cases are not supposed to be full-blown litigation. Here are 5 reasons why:
1. Timing. Most civil lawsuits take more than a year to go to trial; in some states they can take up to 5 years before they go to trial. This is why IDEA law requires cases to take no more than 75 days from complaint to decision. 20 U.S.C. §1415(f) (30 days resolution period + 45 days for hearing officer to issue a decision); see also 34 C.F.R. §300.515. If a special education problem lingers too long, a child is missing out on his/her education. Can you imagine if a case lasted 5 years? The child would go from 3rd grade to 8th grade with no help. Congress never intended this to happen.
2. Discovery. Civil litigation follows the Rules of Civil Procedure, which include discovery (getting documents, asking questions through interrogatories or depositions, and inspections of places). By contrast, “discovery” in Due Process cases is informal. In fact, the hearing is the opportunity to get discovery, not before. See 20 U.S.C. §1415(h); 34 C.F.R. §300.512.
3. Relief. If you file a civil suit against someone in a court of law, you are seeking money. Microsoft wants $10 billion from IBM. In a special education case, you want your student with a disability to get a Free Appropriate Public Education. In other words, you want the school to start teaching and being fair to your child. See 20 U.S.C. §1415(i)(2)(C)(iii) (“shall grant such relief as the court determines is appropriate”); 34 C.F.R. §300.516(c)(3). [Most courts have interpreted this provision to include an administrative hearing officer.]
4. Executive Branch. Civil lawsuits are conducted in courts of law – that means, the judicial branch of government. See, e.g., Article III, U.S. Constitution. Due process cases are conducted by an administrative hearing officer appointed by your state’s Department of Education. 20 U.S.C. §1415(f)(3)(A); 34 C.F.R. §300.511(c). They are executive branch officers; not a court of law.
5. Fairness. When two parties battle it out in a civil lawsuit, we presume there is a balance of power between them. Justice is determined by the evidence. In special education cases, Congress acknowledged that the parents are at a legal disadvantage. 20 U.S.C. §1400(d)(1)(b) (“The purposes of IDEA are . . . to ensure that the rights of children with disabilities and parents of such children are protected”); 34 C.F.R. §300.1(b). Most parents are not lawyers, don’t have any legal training, nor have the financial resources like school districts and state governments. IDEA attempts to level the playing field.
If the lawyer for the school district involved in your special education dispute is trying to turn your case into Microsoft vs. IBM, fight back against their tactics and let the hearing officer know that due process hearings are not supposed to be all-out litigation war.
If you need the assistance of an attorney who will push back against these school district counsel tactics, then contact SchoolKidsLawyer.com.