8 IDEA Principle – Due Process

Although those familiar with special education will recognize a due process hearing as one way to resolve a dispute between an individual’s parents/guardians and their school division, due process in this case refers to the broader constitutional right of all individuals to have access to the legal system and be assured fair procedures within the legal system. Both the Fifth and Fourteenth Amendment of the Constitution assert that no one shall be “deprived of life, liberty or property without due process of law”. Until the case Goss v. Lopez (1975), the Supreme Court had not considered whether education was protected with due process rights.

IDEA ensures that dispute resolution is available to parents/guardians and others associated with individuals with disabilities, but are all parents aware of these rights and do they have the resources to promote their interests in dispute resolution?  This Government Accountability Office report, IDEA Dispute Resolution Activity in Selected States Varied Based on School Districts’ Characteristics (2019) indicated that the use of dispute resolution procedures was three to five times greater in high income school divisions than in low income school divisions.

federal law

IDEA §1415 Procedural Safeguards – Procedural safeguards are rules that protect both parents/guardians and school divisions by making clear the roles and responsibilities of each party in certain interactions regarding individuals with disabilities. In Part B of the IDEA regulations, Subpart E Procedural Safeguards Due Process Procedures for Parents and Individuals details the procedural safeguards available to parents/guardians and school divisions.

LITIGATION

Goss v. Lopez (1975) is a Supreme Court case that established education as both a property and a liberty right under the Constitution. Goss v. Lopez answered the question of whether students, many of whom have not reached the age of majority, have due process rights in school disciplinary matters. This case arose when nine students in Ohio who attended demonstrations on school property were suspended without hearings.  They joined together under the name of student Dwight Lopez in a class action lawsuit against Norval Goss, the director of pupil personnel of the Columbus Ohio Public School System. Goss appealed a lower court’s decision to the Supreme Court. The Supreme Court held that individuals facing temporary suspension from a public school have property and liberty rights under the due process clause of the 14th Amendment of the U.S. Constitution.

Honig v. Doe (1988)  served to confirm the limit on the number of days a student with an IDEA-covered disability could be removed from school through suspension. Prior to this Supreme Court case, individuals with disabilities were routinely suspended from schools without due process protections, endangering their right to a free appropriate public education (FAPE). High school students Doe and Smith were individuals with emotional disabilities who were suspended from school indefinitely due to disruptive conduct related to their disability and were facing expulsion. Honig was the state superintendent of public education in California. While the Education of the Handicapped Act (1970) regulations (precursor to IDEA) allowed temporary suspension of up to 10 days for students who were a danger to others, the statute also contained a “stay-put” provision that held that individuals with disabilities would remain in their current educational placements during any disciplinary proceedings. Both rules were meant to protect individuals with disabilities from a change of placement that would deny them a FAPE. The Supreme Court ruling confirmed that a suspension of more than 10 days was a change of placement. This sent a clear message to schools that longer suspensions and expulsions required procedures to protect the FAPE rights of individuals with disabilities when a change of placement was effected.

RESOURCES

• The VDOE Regulations Governing Special Education Programs for Individuals with Disabilities in Virginia (Virginia Regulations) meet the IDEA mandate with very few differences in language from the IDEA regulations. While due process rights and procedural safeguards are interwoven throughout the Virginia Regulations, code sections 8VAC20-81-160 Discipline procedures through 8VAC20-81-210 Due process hearing contain important examples.
  • Discipline procedures (8VAC20-81-160): As a general rule, individuals with disabilities are accorded the same due process rights as all individuals under state and local disciplinary policies and procedures. However, individuals with disabilities have additional due process rights. First, when an individual with a disability has behaviors that impede their own or others’ learning, the IEP team must “consider use of positive behavioral interventions, strategies, and supports to address the behavior” (8VAC20-81-160). Secondly, when an individual with a disability violates the school code of conduct, school personnel may consider unique circumstances when determining whether to order a change in placement in response to the violation.
  • Suspensions / Short-term Removals (8VAC20-81-160): As we saw affirmed in Goss v. Lopez, ten days of suspension is the threshold for a suspension, also called a short-term removal. The discipline procedures give further detail, confirming that a short-term removal is for “a period of time of up to 10 consecutive school days or 10 cumulative school days in a school year” (8VAC20-81-160). School divisions are then advised as to the situations in which they are required to continue to provide services to an individual under a short term removal.
  • Suspensions / Long-term Removals (8VAC20-81-160): A long term removal can be defined in two ways: removal from school for more than 10 consecutive school days or a series of short term removals that constitute a pattern. A pattern is identified when three conditions are met: a. removals of more than 10 school days in a school year; b. the individual evidences similar behavior to previous incidents; and c. additional factors like the length of each removal, total amount of time removed, and the proximity of the removals to one another. The school division will decide whether a pattern of removals constitutes a change in placement (8VAC20-81-160). A change of placement triggers due process procedures and consents designed to protect an individual’s FAPE. Long-term removals incur additional decision points and procedures for school divisions regarding services to be provided, whether the behavior in question is a manifestation of the individual’s disability, any special circumstances, and an opportunity for parents/guardians to appeal some decisions in the process.
  • Transfer of Rights to individuals who reach the age of majority (8VAC20-81-180): All rights accorded to the parent(s) under the Act transfer to the individual upon the age of majority (age 18), including those individuals who are incarcerated in an adult or juvenile federal, state, regional, or local correctional institution. School divisions are required to give notice to the parents, include a statement on the individual’s IEP in advance of the transfer of rights, give required notices to both individual and parents, and may invite the individual’s parents to meetings. The adult individual may also invite their parents. The adult individual is presumed to be competent unless certain actions have been taken to certify them otherwise.
  • Mediation (8VAC20-81-190): When a parent/guardian and school division have a dispute about Part B entitlements for an individual with a disability, a mediation can be held to provide resolution. Virginia school divisions are required to inform parents of the availability of mediation services through the Virginia Department of Education (VDOE). A joint request from parent/guardian and school division is required to begin the mediation process. The process must be voluntary on both parties’ parts, not used to deny or delay a parent’s right to a due process hearing or other rights, and conducted by a trained, qualified, and impartial mediator. If a parent chooses not to use mediation, a school division is permitted to hold a meeting to encourage mediation. The VDOE must meet criteria for the management of mediators, the conduct of the mediation meetings, and the qualifications of individuals who serve as mediators.
  • Complaint resolution procedures (8VAC20-81-200): The complaint resolution system investigates complaints and issues findings regarding the rights of parents or individuals with disabilities. Any individual may file a complaint as long as it is in writing, signed, includes contact information, states that a school division has violated IDEA or the Virginia regulations, and includes facts to support the statement. If the complaint concerns a specific individual, identifying information and relevant documents are required. The action causing the complaint must have occurred within a year of the date of the complaint and the school division or public agency serving the individual must be notified simultaneously. The VDOE will determine whether the submitted complaint is complete within seven days of receipt and provide notice and directions for resubmission if it is not.
  • Due process hearing (8VAC20-81-210):The phrase due process hearing appears in the Virginia regulations over 90 times and with good reason: a due process hearing may be convened to yield a final decision at the level of the Virginia Department of Education for parents/guardians and school divisions with disputes over the identification, services, discipline, evaluation, placement, and provision of FAPE to individuals with disabilities. The VDOE provides an impartial special education due process hearing system using the impartial hearing officer system administered by the Supreme Court of Virginia. The VDOE provides training, certification, and recertification for a select number of individuals who become special education hearing officers.
• Fairfax County, VA Special Education Procedures website describes the the child find process, local screening information, initial evaluations, eligibility determination and those related to the individualized education program (IEP) and offers translation of several languages.
• VDOE Guidance for Due Process – VDOE Website “Special Education Due Process Hearings” describes the process and provides the documents required for due process. Due process hearing officer decisions are available for years 2001-2002 to the present.
• Parental Due Process form / Parental Due Process form (Espanol) (Word) – VDOE Website “Special Education Due Process Hearings” describes the process and provides the documents required for due process. Due process hearing officer decisions are available for years 2001-2002 to the present.
  • List of Due Process Hearing Officers
  • Implementation Plan
  • Legal / Advocacy Groups and Resources for Special Education 
  • Navigating the Maze of Due Process
• Parents’ Guide to Special Education Dispute Resolution (PDF)- This VDOE document Parents’ Guide to Special Education Dispute Resolution describes the options and processes for resolving disputes in parent-friendly language.
• Center for Appropriate Dispute Resolution in Special Education (CADRE) guide to IDEA Special Education Resolution Meetings (PDF) – This CADRE document describes the special education resolution meeting in parent-friendly language.
• Managing the Timeline in Due Process Hearings Guidance Document for Special Education Hearing Officers This VDOE guidance document is for special education hearing officers and describes the process of a due process case in detail.
• Your Family’s Special Education Rights–This document is Virginia’s procedural safeguards notice designed to satisfy the IDEA special education procedural safeguards requirements. It is also available in Spanish, Arabic, Chinese, Urdu, Farsi, Korean, and Vietnamese.
• IDEA Dispute Resolution Activity in Selected States Varied Based on School Districts’ Characteristics – IDEA ensures that dispute resolution is available to parents/guardians and others associated with individuals with disabilities, but are all parents aware of these rights and do they have the resources to promote their interests in dispute resolution? This Government Accountability Office report, IDEA Dispute Resolution Activity in Selected States Varied Based on School Districts’ Characteristics (2019) indicated that the use of dispute resolution procedures was three to five times greater in high income school divisions than in low income school divisions.
• Culturally and Linguistically Diverse Students with Disabilities: Case Law Review – Ann and Will Maydosz authored this article that appeared in Multicultural Teaching and Learning in 2013. It examined case law and law review journals regarding students with disabilities who also have cultural and linguistic differences and their contact with the evaluation and placement phases of the special education process.
  • Project Implicit is a non-profit  organization that provides an Implicit Association Test so that people can recognize implicit biases.

Discussion / Reflection Questions:

• Why is protecting the rights of school divisions also important?
• Why is it important that parents and school divisions first try to resolve their disputes at informal levels like an IEP meeting?