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Ed. Dept. Cautions Districts About 'Forcing' Parents Into Due Process

Public agencies, including school districts, should avoid short-circuiting a parent's ability to complain directly to the state about a special education dispute, says a "Dear Colleague" letter recently released from the U.S. Department of Education.

The Individuals with Disabilities Act provides several ways for school districts and parents to resolve disagreements. Those methods include filing due process complaints, which are resolved by independent hearing officers, and state complaints, which allow parents or districts to take a disagreement directly to the state. In the latter case, state officials are tasked with investigating and making an independent determination of whether the IDEA has been violated.

The state-complaint process can be used for both individual complaints and systemic concerns. It is also considered to be less intimidating than a due process hearing, according to the federally-funded Center for Parent Information and Resources. However, state officials are not allowed to hear any part of a disagreement that is also the subject of an ongoing due process complaint.

According to the April 15 letter, the Education Department says school districts have been filing due process complaints against parents who have gone directly to the state with a disagreement. That filing then halts the state process and forces the parent to either go through due process or to ignore the complaint "at considerable risk," the letter states.

Harming the 'Cooperative Process'

The process is legal, but not advisable, states the letter, which was signed by Sue Swenson, the acting assistant secretary for the office of special education and rehabilitative services, and Melody Musgrove, the director of the office of special education programs: 

We question why a public agency would seek a due process hearing when there is already an active State complaint on the same issue or issues and where other opportunities for dispute resolution are available, such as mediation or informal or alternative dispute resolution procedures. It appears that in some instances, public agencies may have filed due process complaints against parents in an effort to prevent the State complaint process from moving forward.

Forcing parents to engage in a due process hearing this way leads to a more adversarial and potentially longer and more expensive process, the letter states. "We strongly encourage public agencies to respect parents' reasonable choice to use the State complaint process rather than a due process complaint hearing," it states. The letter also mentions that informal processes, such as mediation, that can be used by both sides of a dispute instead of due process hearings. 

The state-complaint process was recently in the news. The U.S. Circuit Court of Appeals for the 9th Circuit, in San Francisco, ruled in March that if districts disagree with a state's decision after a complaint-resolution process, those districts cannot sue the state in federal court. The court says that while due process explicitly permits the losing party to appeal in federal court, the IDEA has no such provision for a losing party in a state-complaint process. 

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