Due Process

Definition

Due process of law refers to the regular administration of a system of laws, which must conform to fundamental and generally accepted legal principles and be applied without favor or prejudice to all citizens. Due process is the fundamental principles of justice as opposed to a specific rule of law.

How is Due Process Applied to School Systems?

Within the school system, due process is generally seen as the steps and rules established to ensure fairness in providing educational opportunities for all children. With the advent of Public Law (P. L.) 94–142, the Education for All Handicapped Children Act in 1975, to the most current reauthorization of this law called the Individuals With Disabilities Education Act (IDEA), 1997, a specific procedure called an “impartial due-process hearing” has provided parents and schools an avenue for resolving disputes and complaints. This due-process hearing affords the parents and schools the right to present their complaint and is conducted by the state's educational agency or by the local educational agency. A complaint by the parent can relate to the identification, evaluation, educational placement, or the provision of a free appropriate public education (FAPE) of children.

In addition to an impartial due-process hearing, IDEA also established a process called “mediation” to ensure that procedures are established and implemented to allow the parties who are in conflict to resolve such disputes through a mediation process. Mediation is available whenever a hearing is requested. Mediation has to be voluntary on the part of both parties; and it is not to be used to deny or delay a parent's right to a due-process hearing. A qualified and impartial mediator who is trained in effective mediation techniques conducts the mediation. It should be noted that an impartial due-process hearing might occur without mediation.

Description of Individuals That Typically Participate in Due-Process Hearings

Individuals who participate in due-process hearings are most likely the parents of a child with a disability who have a grievance with the school system. During the dispute, a parent advocate or an attorney may accompany the parents. The school district is usually represented by its own counsel, but administrators, school psychologists, counselors, teachers, and other school personnel may be involved most often as expert witnesses, but they could be part of a team that prepares the defense.

Common Stages of a Due-Process Hearing

The first stage of a due-process hearing is the complaint regarding the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education. Whenever a [Page 178]complaint has been received, the parents involved have an opportunity for an impartial due-process hearing or mediation. During the due-process hearing, unless the parents agree otherwise, the child involved in the dispute will remain in his or her current educational placement.

At least five business days prior to a hearing, each party shall disclose to all other parties the evaluations and recommendations that they intend to use at the hearing. Any party to a hearing shall be accorded the right to be accompanied and advised by counsel and by individuals with special knowledge or training with respect to the problems of children with disabilities. Each party has the right to present evidence and confront, cross-examine, and compel the attendance of witnesses. They also have the right to a written or electronic verbatim record of the hearing, and the right to written or electronic findings of fact and decisions. The decision made in a hearing is final, except that any parties involved in such hearings may appeal to the State educational agency. If appealed, this agency will conduct an impartial review of the decision and will make an independent decision. Any party who does not have the right to an appeal and any party aggrieved by the findings and decision has the right to bring a civil action with respect to the complaint presented.

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