Due Process of Law decisions regarding the education of students with disabilities must be made within the boundaries of due process of law that are established in IDEA

2 Procedural Safeguards Yell / The Law and Special Education, Second Edition Copyright © 2006 by Pearson Education, Inc. All rights reserved LEAs must establish and maintain procedures to assure that children with disabilities and their parents are guaranteed procedural safeguards with respect to the provision of a free appropriate public education

3 IDEA Safeguards Identification of parents General procedural requirements -Notice requirements -Consent requirements Opportunity to examine records - 45 days notice -Explanation and interpretation of records Independent educational evaluation Surrogate parents Impartial due process hearing Yell / The Law and Special Education, Second Edition Copyright © 2006 by Pearson Education, Inc. All rights reserved

4 Consent Informed consent must be obtained from a student parents/guardians before the school: – Conducts a pre-placement evaluation – Initially places a student in special education – Conducts a reevaluation When obtaining consent, the school must ensure that the parents understand and agreed to the proposal in writing Yell / The Law and Special Education, Second Edition Copyright © 2006 by Pearson Education, Inc. All rights reserved

5 Dispute Resolution (Now you did it, or didn’t) Yell / The Law and Special Education, Second Edition Copyright © 2006 by Pearson Education, Inc. All rights reserved  Mediation  Resolution Sessions  Written Settlement Agreement  Impartial Due Process Hearings  Due Process Hearings

6 Due Process Hearing Rights counsel present evidence, cross-examine, & compel attendance prohibit entry of evidence (5 days prior) persons with specialized knowledge written or electronic record verbatim (parents may choose to require electronic record) obtain written findings of fact & law have child in question present an open hearing Yell / The Law and Special Education, Second Edition Copyright © 2006 by Pearson Education, Inc. All rights reserved

7 Problems with IDEA’s Hearing Method Time consuming Emotionally taxing Expensive Yell / The Law and Special Education, Second Edition Copyright © 2006 by Pearson Education, Inc. All rights reserved

8 Right to Bring Civil Action: Public agencies may recover their attorneys’ fees from parents’ attorneys if the case was: – Frivolous – Unreasonable – Without foundation Public agencies may recover attorneys’ fees against the parents’ attorney or the parents if the case was presented for any improper purpose such as to: – Harass; – Cause unnecessary delay – To needlessly increase the cost of litigation Yell / The Law and Special Education, Second Edition Copyright © 2006 by Pearson Education, Inc. All rights reserved

9 Compensatory Education Compensatory services are designed to remedy the progress lost by students with disabilities because they were previously denied an appropriate education Examples: – Extending a student’s eligibility beyond 21 – Extended school year Yell / The Law and Special Education, Second Edition Copyright © 2006 by Pearson Education, Inc. All rights reserved

10 Punitive Damages Monetary awards in excess of actual damages, intended to serve as punishment and recompense for legal wrongs  IDEA  Section 504  Section 1983 of the Civil Rights Act Yell / The Law and Special Education, Second Edition Copyright © 2006 by Pearson Education, Inc. All rights reserved

11 Section 1983 Forbids public officials from depriving citizens of their rights under the US Constitution or Federal laws To assert a 1983 claim, the plaintiff must prove that:  The defendant was acting under color of law  The actions deprived the plaintiff of rights guaranteed by the Constitution or federal statutory law Doe v. Withers, (20 IDELR 442,1993) Yell / The Law and Special Education, Second Edition Copyright © 2006 by Pearson Education, Inc. All rights reserved