Due Process Hearings

Preparing and presenting

1. Simplicity is best. Try to reduce the many complex and detailed issues that are in dispute to a few simple themes. A case is more compelling if the hearing officer can see that the major issue s/he has to decide can be summarized in a few simple phrases.
2. The hearing officer's job in most cases is to decide about the current and future placement only. Evidence about past failures in the school program may be relevant to this and other important issues in the case, but don't expect to win because of past events. You have to show that the newly offered program will be inadequate.
3. Stick to the main points. One way to keep it simple and make a more persuasive case is to weed out the "throw-away" arguments and evidence. hearing officers always spot - and, given their busy schedules, are often merely annoyed by -- the weaker arguments. You will be taken more seriously if you show that you know enough to ask only for consideration of the central issues of the case.
4. Prepare documents as exhibits in a clear understandable order. Usually a chronological presentation is more effective than trying to divide exhibits by categories. The first numbered exhibit should be the IEP which is in dispute, but everything after that should be chronological, with the most recent documents at the top.
5. Omit irrelevant and/or borderline evidence. Hearing officers don't need to see every document that was ever created around a child's needs. Omit particularly the old, out-of-date documents and redundant evidence (for example, two witnesses who viewed a classroom simultaneously don't need to repeat each other's testimony).
6. Use strong and credible experts as your witnesses. As we discussed in an earlier article concerning independent evaluators, make sure you find someone with a solid reputation who will follow through with you as needed.
7. Schedule all necessary evidence-gathering steps well before the hearing begins. This includes obtaining the full student record; having the school system's program and any alternative program(s) that might be considered at the hearing observed by your expert(s); making sure all relevant testing is up to date; and obtaining all other records that may help.
8. Use (but don't abuse) the available discovery procedures. Usually the rules and procedures for due process hearings allow parties to obtain documents and written answers to a limited number of questions ("interrogatories") prior to the hearing. It is often very useful to request copies (with names blacked out) of the IEPs of other students with whom the school system plans to group the child in question. It also helps to see materials that describe the program, its curriculum, behavioral plans, and other documents that will help clarify the school's offering. It is useful, too, to obtain resumes and other information about the teachers and other service providers who are proposed to work with the child. Remember that anything parents request of the school system will most likely be asked of them as well, particularly if they seek an outside placement. (It is important to ensure that the outside placement will cooperate in providing information, even though they are not a "party" in the proceeding. Hearing officers will certainly hold a failure to provide information against the parents.)
9. Evaluate who should testify besides the expert witnesses. Remember that the parent's testimony is generally relevant as observation of the child's behavior and apparent progress, what has happened at TEAM meetings and in other communications with school personnel, what exactly the parent is seeking, and so forth. The parent's testimony will not generally be accepted as opinion evidence concerning the child's special educational needs, however. The parent is usually not qualified as an "expert" witness. Consider also whether the student him/herself should, or can, testify. Hearing officers often want to hear, especially from an older student, if s/he is cognitively intact.
10. Watch the hearing officer closely. S/he will often give signals through her questions or statements of what s/he considers critical in the case and/or his or her leanings. Sometimes the signals are strong enough to influence a party to reconsider their willingness to settle the case by compromise.
11. Most special education disputes can and should be settled. There is no such thing as a guaranteed victory in the hearing process. Neither parents nor school systems will necessarily be happy with the results of a negotiated settlement - in fact one mark of a successful settlement is that each party leaves the table feeling less than triumphant, though each party does leave with their dignity intact. Consider all pieces of the case as potential chips in settlement negotiations and develop a clear, prioritized list of issues. Be prepared to give up something significant to obtain the major objective. (If you are seeking an outside placement, can you provide transportation in return for tuition? Can you cost-share the placement?) Negotiate through an attorney or advocate if possible, so that you have time to think about proposals and won't react too quickly in a face-to-face discussion.