In California due process hearings, parents lose—or do not fully win—the majority of the time. The win rate hovers between 13% and 20%, based on the most recent and historic data. This is ridiculously low. The reasons vary considerably, however, after practicing for some time there are several reasons that stick out in each loss.
Lack of Experts
Not having an expert on your side puts parents at a significant disadvantage. The Office of Administrative Hearings (OAH) believes everything a district witness says. So, if the parent is stating that option “A” is best, and the district witnesses are saying option “B” is best, 9 times out of 10 the judge is going to believe the district.
Further, in a due process trial the district is going to be lining up their staff to testify on their behalf, while a parent’s only witness may just be them. This is why many attorneys in our field suggest that parents get independent educational evaluations. Not only does this help parents get a better understanding of what the special education program of their child should look like, but it also gives them a fighting chance if they need to go to due process.
Understanding of Procedure
Over the last 10 years or so, Judges have put a lot more emphasis on whether parents have followed the procedures described out in the IDEA. The most common we have seen is holding an IEP. If a parent raises a concerns in a due process, let’s say not addressing behavioral concerns appropriately, on questions a judge may ask is, “Did you call and IEP to discuss your concerns?” If the parent says no, a judge could rule that the district was not on “notice” of the issue. This is not actually required under the law, but OAH sometimes decides it is. Again, this is why attorney usually ask clients if they have brought their concerns or issue to the IEP team.
OAH Itself
Many attorney’s, advocates, and Parents complain that OAH is not a fair court. Meaning, they are biased in favor of schools. The data does support this. This seems likely due to the experience of OAH judges prior to becoming a judge. It is rare to find a judge who actually practiced special education prior to joining OAH. That lack of practical experience puts judges at a significant disadvantage when trying to interpret special education federal and state law, on top of general education programming, services, and placement.
Attorneys on both sides of the aisle often complain that the judge in their mediation and/or struggle to understand special education law. In fact, it is not uncommon for judges to mention the lack of experience of their colleagues. Again, that lack of knowledge puts parents at a huge disadvantage, as judges with less experience are going to come into a hearing with a more positive view of the school than the parent.
How to Proceed
At minimum, prior to going to a due process, parents should speak with an attorney. This is a complex process and having an experienced special education attorney discuss your issues and concerns can be invaluable. Look to independent educational evaluations to help bolster your claim(s), and ideally ensure you have an expert to prove your case. Understand this is a difficult process, it can feel very unfair and sometimes it is. Preparation is key. Taking the time to hold IEP meetings, put things in writing, and having you experts lined up will bey key to success.
