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Illinois School Board Journal
September/October 2002

Due process resolves special education disputes

by Brad Colwell

Brad Colwell is an associate professor, Department of Education Administration and Higher Education, and director of graduate studies at Southern Illinois University, Carbondale.

In 1999-2000, more than 6,270,000 children received special education services in the United States. During this same time, the number of special education students (ages 3-21) in Illinois was approximately 291,000.

With this large number of students, times arise when the school district and the parents/guardians cannot agree on the services, evaluation or placement of a special needs student.

The Individuals with Disabilities in Education Act (IDEA) provides procedural safeguards to insure children receive a free, appropriate public education (FAPE). This federal law provides that parents/guardians of special education students can ask for an impartial due process hearing when there is a disagreement regarding the services, evaluation or placement of their child. Each state has its own statutes to describe how the impartial due process hearing system will function.

In Illinois, Article 14 of the School Code directs the State Board of Education to establish a one-tier due process hearing system by creating a cadre of impartial hearing officers and formulating rules and procedures for the hearings. Specifically, Section 14-8.02a of the School Code sets out the requirements of a due process hearing that must take place within a 45-day time frame.

But just how does this due process hearing work?

A request for a due process hearing must be initiated, in writing, by either the school district, the parent/guardian or a student who is at least 18 years of age or emancipated. Hearing requests are made to the superintendent of the school district where the student resides. The school district must forward the request to the state board within five days of receiving it.

A school district also may initiate a due process request by submitting a written request directly to the state board. The district must complete a one-page form, prepared by the state board, that asks for student information, including the type of disability, grade level and type of school setting, as well as the issue(s) in dispute as identified by the district. On the form, the school district must indicate whether the parents were offered mediation services to resolve the dispute. ISBE offers mediation services at no charge to the parties in an attempt to resolve the disagreements before starting a due process hearing. The district also must mail a copy of the due process request to the parents or guardian of the student.

The filing of a due process request serves as a "stay put" for the student. This means the student will remain in his/her present educational placement and continue in the same eligibility status until the hearing and any judicial proceedings are complete.

In 2001, the ISBE received 492 requests for a due process hearing, down from 516 requests the previous year. Of those 492 requests, 397 were withdrawn or settled prior to hearing. Hearing officers rendered decisions in 63 other cases, five of which were appealed to federal court. The other requests were still pending resolution.

After receiving the request, the state board has five days to appoint a hearing officer (using a rotating appointment system) and notify the hearing officer of that appointment to the case. Each party to the hearing has the right to one substitution of a hearing officer. If a party requests a substitution, the state board randomly selects and appoints another hearing officer within five days of receiving notice of the request for substitution. If a party withdraws a request for a due process hearing after a hearing officer has been appointed, that hearing officer retains jurisdiction over a subsequent hearing involving the same parties if it is requested within one year from the date of the withdrawal of the previous request, so long as the hearing officer is available.

Hearing officers who have a conflict of interest must recuse themselves from hearing a case. According to the School Code, a conflict of interest exists "if, at any time prior to the issuance of his or her written decision, he or she knows or should know that he or she may receive remuneration from a party to the hearing within three years following the conclusion of the due process hearing." Furthermore, a hearing officer who was a former employee or a current resident of the school district, special education cooperative or other public entity involved in the due process hearing must recuse himself or herself. If a hearing officer withdraws, the state board randomly selects and appoints another hearing officer five days after receiving notice of the ineligibility.

A hearing officer must disclose any actual or potential conflicts of interests to the parties when he/she learns of those conflicts. Any party may raise facts that constitute a conflict of interest for the hearing officer at any time before or during the hearing and may move for recusal. A hearing officer with some personal or professional conflicts of interest that would affect objectivity in the hearing must notify the state board so he/she can be replaced.

A hearing officer can be terminated for failing to recuse himself or herself from a hearing in which he/she has a personal, professional, or financial conflict of interest that he/she knew or should have known existed at any time prior to or during the hearing.

Once appointed, the hearing officer cannot initiate or participate in any communication with the parties unless all are present, except to arrange the date, time and location of the pre-hearing conference and due process hearing, and to receive confirmation of whether a party intends to participate in the pre-hearing conference. Furthermore, the hearing officer should not communicate with the state board or its employees about the hearing, except for administrative purposes.

Specifically, hearing officers are not to discuss substantive or procedural matters or issues on the merits, and they can only communicate about administrative matters if they promptly notify all parties of the substance of the communication as a matter of record.

The hearing officer must convene a pre-hearing conference no later than 14 days before the scheduled date for the due process hearing. The purpose of this conference is to aid in the fair, orderly and expeditious conduct of the hearing.

At least 10 days before this conference, the hearing officer must provide the parties with written notice of the meeting. This written notice requires the parties to notify the hearing officer by a specific date whether they intend to participate in the pre-hearing conference.

At the conference each party must disclose:

1. Whether it is represented by legal counsel or intends to retain legal counsel.
2. The matters it believes to be in dispute in the case and the specific relief sought.
3. Whether it intends to introduce into the hearing record any additional student evaluations that have not been previously disclosed to the other parties.
4. A list of all documents it intends to introduce into the hearing record, including the date and a brief description of each document.
5. The names of all witnesses it intends to call to testify at the hearing.

In addition, the hearing officer must specify the order of presentation to be used at the hearing.

The pre-hearing conference may be conducted in person or by telephone. If the pre-hearing conference is held by telephone, the parties must transmit the required information so that it is available to all parties at the time of the pre-hearing conference.

The parties must disclose and provide to each other any evidence they intend to submit into the hearing record no later than five days before the hearing. Any party has the right to prohibit the introduction of any evidence at the hearing that has not been disclosed to that party at least five days before the hearing.

The due process hearing is held at a time and place that are reasonably convenient to all parties. The hearing officer must hold the hearing at a neutral location if a party makes such a request, and the hearing officer determines there is no cost for securing the use of the neutral location.

The hearing is closed to the public unless the parents/guardians request the hearing be open. Parents/guardians requesting the hearing have the right to have the student present who is the subject of the hearing. In addition, the hearing officer is required to see that interpreters are made available by the school district at all stages of the hearing for those who are deaf or do not speak English.

Any party to the hearing has the right, at their own expense, to be represented by legal counsel and be accompanied and advised by individuals with special knowledge or training with respect to the problems of children with disabilities. As a part of their case, a party may present evidence and confront and cross-examine witnesses. Witnesses may be excluded from the hearing until they are called to testify, provided that this provision may not be invoked to exclude the individual designated by a party to assist that party or its representative in the presentation of the case. To assist in presenting and gathering evidence, a party may request that the hearing officer issue a subpoena to compel the testimony of witnesses or the production of relevant documents at the hearing. If anyone refuses to comply with a subpoena, the hearing officer or the party requesting the issuance of the subpoena may go to the circuit court to compel compliance through the court's contempt powers.

The school district must present evidence that the special needs of the child have been appropriately identified and the special education program and related services proposed to meet the needs of the child are adequate, appropriate and available. If at issue, the school district must present evidence that it has properly identified and evaluated the nature and severity of the student's suspected or identified disability.

If the student has been determined eligible for special services, the school district must show that it is offering the student a FAPE in the least restrictive environment, consistent with procedural safeguards and in accordance with an individualized educational program (IEP). Any time prior to the conclusion of the hearing, the hearing officer has the authority to require additional information and to order an independent evaluation(s) for the student at the expense of the school district.

At the conclusion of the hearing, any party has the right to obtain a written or electronic verbatim record of the proceedings within 30 days of receipt of a written request from the parents to the school district. The state board and the school district share the cost of a written or electronic verbatim record of the proceedings.

Within 10 days after the conclusion of the hearing, the hearing officer must issue a written decision stating the findings of fact and conclusions of law. The decision must specify the educational and related services to be provided to the student in accordance with his/her needs. The hearing officer must mail a copy of the decision to the parents/guardians, the student (if he/she requested the hearing), the school district, the director of special education, legal representatives of the parties and the state board.

Within five days after receipt of the decision, a party may submit a written request to the hearing officer seeking to clarify any part of the decision. The party making the request for clarification must specify the portions of the decision they wish clarified and mail the request to all parties and to the state board. A party cannot request a reconsideration of the final outcome of the decision.

A request for clarification operates to stay or delay implementation of those portions of the decision for which the clarification was sought until the hearing officer takes action on the request. However, the parties may agree not to delay the implementation while the hearing officer clarifies the decision.

The hearing officer has 10 days after receipt of the request to either issue a clarification on the specified portion of the decision or to issue a partial or full denial of the request in writing. The hearing officer is required to mail copies of the clarification to all parties to whom the decision was mailed.

A final decision, including any requested clarification of a decision, must be completed and mailed to the parties not later than 45 days after the request for hearing is received by the school district, public agency or the state board, whichever is sooner. The hearing officer may extend the 45-day period as a result of a specific request by a party.

The hearing officer's final decision is binding upon both the school district and the parents/guardians, unless a civil action is filed. If the hearing officer orders a change in the eligibility status, educational placement or special education and related services of the student, that change will not be implemented until 30 days have elapsed following the date the hearing officer's decision is mailed to the parties in order to allow any party aggrieved by the decision to begin a civil action to stay implementation of the decision.

Any party dissatisfied with the final written decision of the impartial due process hearing officer has the right to bring a civil court action with respect to the issues presented in the due process hearing. Such a civil action must be brought in any court of competent jurisdiction within 120 days after a copy of the decision of the hearing officer is mailed to the party. When a civil action is filed, the hearing officer no longer exercises jurisdiction over the case.

Illinois School Code (105 ILCS 14-8.02a)