American Judge

Special Education 

Due Process Hearings

What is a special education due process hearing?

If you and your child's school district disagree as to whether your child is eligible for special education, whether assessments should have been provided but they weren't. Or you disagree as to the results of assessments, what should be included in your child's program, or whether elements of the program were implemented, you may consider filing for due process. 

As pertains to special education, due process constitutes the rights and procedures that apply to deciding disputes between parents and school districts. 

A due process hearing is the formal hearing procedure used to resolve these disputes.

What happens at a special education 
due process hearing?

Special education due process hearings before the Office of Administrative Hearings are similar to trials in superior court in that at a judge presides at the hearing, in this case an administrative law judge; the parties present evidence; and following the presentation of all of the evidence at hearing, the administrative law judge issues a decision regarding the issues under consideration. 

Of note is that as is true of many trials in superior court, many special education due process hearings last several days.

Prior to the hearing, the administrative law judge may issue decisions regarding motions made by either party, such as a motion to dismiss the case or a motion for a continuance.

The evidence that the parties present at the hearing will include witness testimony and documentary evidence. Sometimes the parties may have to issue subpoenas for witnesses or evidence. 

During the hearing, a party may object to evidence if there is a questions as to its relevance, reliability, or admissibility. A common object is that there is a lack of foundation for the evidence. This means that the document has not been established to be authentic. Another common objection is relevance. Relevant evidence is evidence that tends to prove or disprove a fact at issue in the matter. 

What happens after all of the evidence is presented at the hearing?

After the parties present their evidence, they will summarize their case with a closing argument, which may be oral or written. The closing argument may discuss what law applies.

The judge will issue a decision within 45 days of the complaint. When parents file the complaint, there must be a resolution session unless both parties waive it. The 45 days begins to run after the 30 day resolution period. When a school district files a complaint, the 45 days begins to run when the school district files and serves the complaint. The parties may agree to extend the 45 day period.

The judge will write a decision including the factual findings and legal conclusions. The factual findings state the relevant evidence that the judge believes to be true and relevant based on the evidence presented. The legal conclusions state the relevant law that applies to each issue in the case. The judge will analyze how the law applies to the facts. The judge will determine whose evidence was more persuasive on each issue.  

 

Also included in the decision will be legal remedies, if a party has won on an issue and legal remedies are appropriate. The judge's decision is immediately binding on the parties. The decision will state that either party may appeal the decision.  

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The information on the Caledattorney website is general information for California residents only. Nothing on this site should be taken as legal advice or relied on for any individual case or situation.  We serve clients throughout California and  Northern California including Fresno, San Jose, PlacervilleStockton, Redding, Chico, Auburn, Grass Valley, Sacramento, Truckee, Marysville, Redding, San Francisco, Truckee, Elk Grove, Yuba City, EurekaSanta Rosa, Vacaville and Fairfield.

Molly Watson is available to meet with parents by Skype or FaceTime.

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MOLLY WATSON

530-273-2740