A due process complaint can cover any violation of IDEA or ECEA that has happened within the last 2 years, and concerns the identification, evaluation, or educational placement of your child or provision of FAPE. This can include issues such as an incorrect IEP, failure to have an IEP, failure to carry out the IEP, or disciplinary issues. More often than not, a due process complaint settles through mediation or resolution. If it does not settle, it goes forward to a due process hearing, which is essentially a trial without a jury, sometimes lasting for days. Usually, expert witnesses will take part in the trial, as well as a number of school witnesses (maybe a very large number of school witnesses).
If you have a valid special education claim based on how your child is being treated, due process can be an effective and quick way to resolve it, as timelines are short, and much of the law is clearly established. But due process is also complicated (both legally and practically) and is very expensive. If you do not use an attorney, the school district may not take you seriously, and in fact, a due process hearing would be almost impossible to pull off without legal training. Occasionally, public interest groups like Disability Law Colorado (formerly The Legal Center for Disabilities and Older People) may help by offering free or reduced-cost representation, so you can check with them.
While most due process claims in Colorado settle, the school districts usually win the claims they take forward. Attorney fees and costs for each side can easily be $50,000-60,000, as preparing for a trial is very time-consuming. IDEA provides for the school district to pay the parents’ attorney fees if they win, but you can only try to get these after you have prevailed at a due process hearing, and the courts often do not grant all of the fees. If the school has gone forward to a due process hearing, you can assume they are likely to fight attorney fees as well. You cannot get attorney fees for complaints that resolve earlier in the process, before the actual hearing, unless you can agree to this in settlement. This means that most of the time you cannot get your attorney fees when you file for due process.
Because of this, due process should be used for serious matters that have not been resolved otherwise, and that will have a long-term effect on your child’s well-being. Think of a due process complaint as an investment in your child’s future, not as a way to solve minor problems.
Access to Justice for My Child with Disabilities
Navigation for 8-part blog series
- Part 1: Diagnose Your Problem and Possible Solutions
- Part 2: Working with the School District
- Part 3: Complaining to the Office for Civil Rights
- Part 4: Getting Help and Asking for Mediation
- Part 5: A State Level Complaint
- Part 6: Filing a Due Process Complaint
- Part 7: Why Doesn't the School Cooperate
- Part 8: Access to Justice for Special Ed and Disability Issues
- The 2016-2017 U.S. Supreme Court Term in Review
- Personal Jurisdiction: Where Defendants Can Be Sued
- How to Avoid a Fight with Co-Counsel over Dividing Fees in Litigation
- Fed. R. Civ. P. 56(d): A Cautionary Tale When You Need Additional Discovery
- Simplified Procedure Demystified: The Pros, Cons, and Process of Simplified Procedure