SPECIAL EDUCATION RIGHTS AND RESPONSIBILITIES
Chapter 6

Information on Due Process Hearings/Compliance Complaints

From a 12-Chapter Manual - Available by Chapter and in Manual Form

Seventh Edition

Written by:

Community Alliance for Special Education (CASE) and

Protection & Advocacy, Inc. (PAI)

Copyright © 1992 by CASE and PAI - Revised January 1998

Written permission of the Community Alliance for Special Education (CASE) and Protection and Advocacy, Inc. (PAI) must be obtained for duplication of the materials contained in Special Education Rights and Responsibilities.

These materials are based on special education laws and court decisions in effect at the time of publication. Federal and state special education law can change at any time. If there is any question about the continued validity of any information in the handbook, contact CASE, PAI or a legal authority in your community.

Click here to go directly to the Table of Contents.


Community Alliance for Special Education (CASE), provides legal support, representation, technical assistance consultations, and training to parents throughout the greater San Francisco Bay Area whose children need appropriate special education services. Trained advocates and attorneys assist parents at IEP meetings, Mediation Conferences and Due Process Hearings. CASE also provides free consultations about special education rights and services to parents and professionals by telephone or face-to-face. CASE is a nonprofit organization serving all children with disabilities who need or may need special education services. For more information, contact:

CASE

  • 1031 Franklin Street, Suite B5, San Francisco, CA 94109, Tel. - (415) 928-2273, FAX - (415) 928-2289
  • 680 W. Tennyson Road, Room 1, Hayward, CA 94544, Tel. - (510) 783-5333, FAX - (510) 783-8822
  • CASE-South Bay Legal Aid Society of Santa Clara County, 480 North First Street, San Jose, CA 95103, Tel. - (408) 283-1535

Protection and Advocacy, Inc. (PAI), is a private, nonprofit organization that protects the legal, civil and service rights of Californians who have developmental or mental disabilities. PAI provides a variety of advocacy services, including information and referral, technical assistance, and direct representation. For information or assistance with an immediate problem, call:

PAI - Toll Free/TTY: (800) 776-5746

8:30 AM to 5:00 PM - Monday through Friday

  • Central Office, 100 Howe Ave., Suite 185-N, Sacramento, CA 95828, Legal Unit - (916) 488-9950 / Administrative - (916) 488-9955
  • Southern California Area Office, 3580 Wilshire Blvd., Suite 902, Los Angeles CA 90010, Tel. - (213) 427-8747
  • San Francisco Bay Area Office, 449 - 15th Street, Suite 401, Oakland, CA 94612, Tel. - (510) 839-0811

PAI receives funding under the Developmentally Disabled Assistance and Bill of Rights Act and the Protection and Advocacy for Mentally Ill Individuals Act. Any opinions, findings, recommendations or conclusions expressed in this publication are those of the authors and do not necessarily reflect the views of the organizations which fund PAI.


 On June 4, 1997, the Individuals with Disabilities Education Act (IDEA) was amended by Congress and signed into law by President Clinton. Most of the new provisions in IDEA became effective on that date. Community Alliance for Special Education (CASE) and Protection & Advocacy, Inc. (PAI) have incorporated these amended IDEA provisions into the Seventh Edition of the Special Education Rights and Responsibilities (SERR) manual.

Because special education services in California are funded in part with federal money, these IDEA amendments take precedence over any prior inconsistent federal law or current state law, except where state law provides more protections or at least the same level of protections. In this edition of SERR, citations of federal law refer to the section numbers where these amendments appear in federal law at Title 20 of the United States Code. Citations of federal regulations refer to current, unrevised federal regulations at Title 34 of the Code of Federal Regulations. State citations refer to current California law and regulations.

New federal regulations must now be developed to implement the new federal statutes. The new federal regulations are supposed to be issued by July 1, 1998. However, this process may take longer. In addition, California special education law and implementing regulations will also be amended once federal regulations are issued. CASE and PAI will monitor the development of these final federal regulations, and state law and regulations, so that final federal and state laws and regulations can be incorporated into later supplements and editions of SERR.

It is important for you to know that the Individual Education Program (IEP) provisions of the IDEA amendments do not become effective until July 1, 1998. Since IEPs written for the 1998-99 school year must meet the new IDEA IEP requirements, CASE and PAI have chosen to include these new IEP provisions in this edition of the SERR manual (Chapter 4). We hope that this information will help as you develop IEPs for the 1998-99 school year and beyond.

For further information on the development of federal and state law and regulation, or clarification about IDEA implementation, please contact CASE or PAI.


SPECIAL EDUCATION

RIGHTS AND RESPONSIBILITIES

TABLE OF CONTENTS

Chapter 1 Information on Basic Rights and Responsibilities

Chapter 2 Information on Evaluations/Assessments

Chapter 3 Information on Eligibility Criteria

Chapter 4 Information on IEP Process

Chapter 5 Information on Related Services

Chapter 6 Information on Due Process Hearings/Compliance Complaints

Chapter 7 Information on Least Restrictive Environment

Chapter 8 Information on Discipline of Students with Disabilities

Chapter 9 Information on Inter-Agency Responsibility for Related Services (AB 3632/882)

Chapter 10 Information on Vocational Education

Chapter 11 Information on Preschool Education Services

Chapter 12 Information on Early Intervention Services

NOTE: The text in each chapter refers to specific questions in other chapters by using the titles shown above.


SPECIAL EDUCATION

RIGHTS AND RESPONSIBILITIES

Chapter 6

Information on Due Process Hearings/Compliance Complaints

TABLE OF CONTENTS

Question

1. What is a due process hearing?

2. What is a compliance complaint?

3. What is the difference between a compliance complaint and a due process hearing?

4. Would I follow different complaint procedures if OT/PT or mental health services are not provided as specified in my child's IEP?

5. Who can file a compliance complaint?

6. What can I do if a teacher or other school staff person hurts my child -- other than bringing a civil lawsuit against a school district or reporting the incident to the appropriate law enforcement authorities?

7. When should I file a compliance complaint directly with the CDE?

8. How do I file a compliance complaint with the CDE?

9. What happens after I file a complaint?

10. How does the CDE investigate complaints?

11. Who handles complaints when the CDE does not intervene directly?

12. How do I file a compliance complaint with my local school district?

13. How does a local school district conduct investigations?

14. Can a local school district try to mediate a complaint as part of its local investigation process?

15. What happens if I disagree with the local education agency's report?

16. What happens when the CDE finds a public education agency to be out of compliance?

17. What can I do if I do not agree with the CDE's decision?

18. Can I file a complaint with any other agencies?

19. How would I file a complaint with the OCR?

20. When would I file a Section 504 discrimination complaint with OCR?

21. How does the OCR act on complaints?

22. Can I file a discrimination complaint with the CDE?

23. When would I request a due process hearing?

24. When must a school district notify me if the district proposes to change or modify my child's special education program?

25. What information should the school district include in this notice?

26. Are there any other notices that the school district must give?

27. What information must the procedural rights notice contain?

28. What happens to my child if I file for a due process hearing?

29. Are there exceptions to my child's right to remain in his current educational placement while due process proceedings are going on?

30. Under what circumstances and for how long may school officials change my child's placement without my consent?

31. Must the school officials do anything else if they choose to change the my child's placement for any of the reasons described in the previous answer?

32. Under what circumstances and for how long may a hearing officer change my child's placement without my consent?

33. My child's behavior is the result of his disability. Is there any requirement that my child's disability be taken into consideration before he is placed in a 45-day alternative placement without my consent?

34. Who determines what is an appropriate alternative educational setting for my child and what are the criteria for that determination?

35. May I challenge the IEP team's determination of an appropriate alternative placement by filing for due process?

36. If due process has not been completed within the 45-day limit for alternative placement, are there any circumstances when the alternative placement may be extended?

37. My child, who is being expelled, has not been made eligible for special education but I believe he would qualify if the school district assessed him. What will happen with my child's placement while we are waiting for the results of that evaluation?

38. My child, who is being expelled, has not been made eligible for special education but I believe she would qualify if the school district assessed him. Is my child protected by any special rules regarding discipline procedures for students with disabilities that have not been officially recognized by the school district?

39. How do I set up a due process hearing?

40. Can the local education agency request a due process hearing?

41. Once a request for a due process hearing is made, how long does the special education hearing office (SEHO) have to hold the hearing and make a decision?

42. What is a mediation conference?

43. What are the pros and cons of going through mediation?

44. Are there any dispute resolution procedures other than the compliance complaint and due process mediation and hearing?

45. Should I file for due process immediately, that is as soon as it becomes apparent that the school district and I are at an impasse over services or placement at the IEP meeting?

46. How do I know if I am prepared for the due process hearing?

47. Where do I get the evidence I will need to present at the due process hearing?

48. Can experts testify at a due process hearing?

49. How would I use an expert witness?

50. Instead of having witnesses come to the due process hearing, can I submit letters, records, or other documents to prove my case?

51. Will the hearing officer read all the documents that I submit and the district submits?

52. Must I be represented by a lawyer in order to go through due process?

53. What if I have already initiated due process but I need more time to prepare or to find a representative before the hearing?

54. Where is the due process hearing held?

55. Who attends the due process hearing?

56. Can the parties submit written information to the hearing officer? How soon must they submit it? Do the parties have to disclose their exhibits and lists of witnesses before the hearing?

57. Is the due process hearing a trial or like court?

58. How does the hearing proceed?

59. What is the record?

60. What if a witness does not want to attend the hearing?

61. Does the hearing officer at a due process hearing simply listen to witnesses and review the documents submitted, or can the hearing officer participate in the hearing process?

62. Can I get the public education agency to pay for my attorney and expert witnesses?

63. If I lose the due process hearing, can I do anything?

64. What remedies can I ask for when I file for a due process fair hearing or an action in court?

65. How can a parent ensure that a school district honors the "stay put" provision?

66. Sample Letter - Compliance Complaint

67. Sample Letter - Due Process Hearing Request


 SPECIAL EDUCATION

RIGHTS AND RESPONSIBILITIES

Chapter 6

Information on Due Process Hearings/Compliance Complaints

1. What is a due process hearing?

When the parents of a student with disabilities and the educational agency disagree about the child's eligibility, placement, program needs or related services, either side can request a due process hearing. At the hearing, both sides present evidence by calling witnesses and submitting any pertinent reports and evaluations that support their position. An independent hearing officer (hired by the state) decides whose witnesses and documents are correct and what program is appropriate. A DUE PROCESS HEARING IS GENERALLY NOT APPROPRIATE TO ADDRESS ISSUES ADDRESSED BY THE COMPLIANCE COMPLAINT PROCESS. See Question 2.

2. What is a compliance complaint?

When the educational agency appears to have violated a part of special education law or procedure (for example, will not assess or refer a child to special education, does not follow time lines for assessment and referral, does not inform parents of an individualized education program [IEP] meeting, does not implement the IEP, or fails to implement a due process hearing decision), a parent, individual, public agency or organization can file a complaint with the California State Department of Education (CDE). An investigator from the CDE investigates the allegations and makes a written determination of whether the education agency was "out of compliance" with law or with the student's IEP. If the CDE finds an education agency to be "out of compliance", it should order the agency to come back into compliance. In addition, the CDE may order the agency to submit a plan of correction -- a document describing the steps the agency has taken and will take to assure that the problem does not occur again, either to this student or to others.

3. What is the difference between a compliance complaint and a due process hearing?

Although people often confuse compliance complaints and due process hearings, the main difference is this:

-- when there is a disagreement about what should go into a child's IEP, or where to implement the IEP, then a due process hearing is appropriate;

-- when the education agency has not followed special education laws or procedures or has not implemented what is already specifically written into a student's IEP, then a compliance complaint is appropriate.

In other words, a due process hearing involves a disagreement over what a child's program should include, while a compliance complaint involves a failure by the educational agency to follow the rules or to do what has already been agreed to in writing in the IEP.

4. Would I follow different complaint procedures if OT/PT or mental health services are not provided as specified in my child's IEP?

If occupational or physical therapy (OT/PT) or mental health services are not provided in accordance with your child's IEP, you can file the complaint described in Question 2 and/or a complaint under the Assembly Bill (AB) 3632 interagency dispute resolution procedures. Filing complaints under both processes may bring a quicker resolution. The interagency dispute resolution procedures apply if your child is not receiving OT/PT or mental health services as specified in the IEP. In that situation, you can file a notice of failure to provide related services with the Superintendent of Public Instruction (Superintendent) or the Secretary of Health and Welfare (Secretary). [California Government Code (Cal. Gov. Code) Sec. 7585(a).]

Secretary of Health & Welfare, Superintendent of Public Instruction, 1600 Ninth Street, 4th Floor 721 Capitol Mall, Room 524, Sacramento, CA 95814 Sacramento, CA 95814

Before reviewing your complaint, the agencies involved will want to see a copy of your child's IEP. You should send a copy of the IEP with your complaint.

The Superintendent and the Secretary must meet to resolve the issue within 15 calendar days of receiving the complaint. They must mail a written copy of the meeting resolution to you, to the local education agency, and to the affected departments, within 10 days of the meeting. [Cal. Gov. Code Sec. 7585(b).]

If the issue cannot be resolved within 15 days to the satisfaction of the departments involved, it can be appealed to the Office of Administrative Hearings (OAH). The OAH will review the issue and submit findings within 30 days of receipt of the case. The OAH decision is binding on all parties to the dispute. [Cal. Gov. Code Sec. 7585(c)-(e).]

When a complaint is filed pursuant to Section 7585(a), the student affected by the dispute must receive the service pending resolution of the dispute if the student had been receiving it. [Cal. Gov. Code Sec. 7585(f).]

5. Who can file a compliance complaint?

Any individual, public agency, or organization (such as a parent group) may file a written complaint. [5 California Code of Regulations (Cal. Code Regs.) Sec. 4600(b).] The complaint may concern a single child, a group of children, or a policy of a local education agency which you think violates federal or state special education law.

6. What can I do if a teacher or other school staff person hurts my child -- other than bringing a civil lawsuit against a school district or reporting the incident to the appropriate law enforcement authorities?

If a child or group of children is in immediate physical danger, or the health, safety or welfare of a child or group of children is threatened, you may file a complaint with the CDE under the Uniform Complaint Procedure [Title 5, Cal. Code Regs. Sec. 4600 et seq.], and the CDE must investigate directly. [Title 5 Cal. Code Regs. Secs. 4611(a) and 4650(a)(viii)(C).]

7. When should I file a compliance complaint directly with the CDE?

Nearly all the violations that can form the basis of a compliance complaint should be filed with the CDE. The CDE must directly intervene (not refer the complaint to the local agency for self-investigation) in any of the following situations:

(A) The complaint indicates that a public agency, other than a local educational agency, as specified in Cal. Gov. Code Sec. 7570 (AB 3632), has failed or refused to comply with an applicable law or regulation relating to the provision of free, appropriate public education to individuals with disabilities.

(B) The complaint indicates that the local educational agency or public agency has failed or refused to comply with the due process procedures established in federal and state law and regulations, or has failed or refused to implement a due process hearing order.

(C) The complaint indicates that the child or group of children may be in immediate physical danger or that the health, safety or welfare of a child or group of children is threatened.

(D) The complaint indicates that a student with disabilities is not receiving the special education or related services specified in the student's IEP.

(E) The complaint involves a violation of federal law governing special education, 20 U.S.C. Sec. 1400 et seq., or its implementing regulations. [5 Cal. Code Regs. Sec. 4650(a)(viii).]

If the facts of your situation fit into any one or more of the five situations described above and if you feel that your local school district should not investigate your complaint, you should specifically request that the CDE investigate your complaint directly. See Sample Letter - Compliance Complaint, at the end of this chapter. You should identify the letter(s) outlined above -- (A) through (E) -- that most resembles your situation. You should mention the specific subsections in your complaint letter. Since subsections (A) through (E) cover most of the situations that can lead to filing a Compliance Complaint, you should be able to identify a subsection that fits your situation.

Outline the reasons for your request in your complaint letter. Your reasons may not conform exactly to the criteria stated above. However, this should not prevent you from at least making the request. The Compliance Unit will determine whether or not to first refer your complaint for a local investigation.

8. How do I file a compliance complaint with the CDE?

To file a Compliance Complaint with the CDE, write to:

Complaint Management and Mediation Unit, Special Education Division, California State Department of Education, 515 L Street, Suite 270, Sacramento, CA 95814

You should fully describe the situation that caused you to request the compliance investigation, including which parts of the law have been violated and the basis for your request. You may not know the exact section(s) of law that have been violated. That is all right. If you describe the situation adequately, the Complaint Management and Mediation Unit should match the correct section(s) with your particular situation. If your child's IEP or other documents are relevant to your complaint, you should attach them. See Sample Letter - Compliance Complaint at the end of this chapter.

9. What happens after I file a complaint?

Under federal and state law, the CDE has 60 calendar days from receipt of the complaint to carry out any necessary investigation and to resolve the complaint. [34 Code of Federal Regulations (C.F.R.) Sec. 76.781; 5 Cal. Code Regs. Sec 4631(a).] When it receives your complaint, the CDE must review the complaint to determine if it is a matter for state or local investigation. Once the CDE makes its determination, CDE must immediately notify you of its decision and either refer the complaint for local investigation or begin its direct investigation. [5 Cal. Code Regs. Sec. 4651.]

Although the complaint office must process your complaint within 60 days, the office has developed a process to "fast-track" certain complaints which present a small number of uncomplicated issues and provide resolution much more quickly than 60 days. Very often parents need resolution much more quickly than 60 days. The most obvious examples of this are when school districts do not comply with an IEP or with the laws during an extended school year program or when certain services are to be provided by a school district during any field trip or end-of-the-year activity and the school district refuses such services a matter of days before the event. If your reason for filing a compliance complaint involves one or two simple compliance issues, you may wish to ask in your complaint for "fast-track" treatment. Examples of a simple complaint might include: "my child's IEP specifies that he is to receive transportation and the bus has not come for two days," or "my child's teacher does not attend his IEP meetings," or "my child's IEP specifies that he have an instructional aide during certain periods of the day and the aide has not been provided," or "my child's principal has told me that because of my child's behavior at school I should not bring him back." After filing your complaint, you may also wish to call the compliance office to find out who the complaint has been assigned to and to remind that individual of the simplicity of your complaint and your desire or need for expedited processing.

Whether or not you file your complaint as a fast-track complaint, if you do not hear from the Complaint Management and Mediation Unit within 10 days after you mail your complaint, you should call the Compliance Unit at (916) 455-4632 to follow up.

10. How does the CDE investigate complaints?

When the CDE either directly investigates your complaint or you appeal a local education agency's decision after a self-investigation, the CDE must offer to mediate the dispute. The mediation must be conducted within the 60-calendar-day time line for completion of the complaint investigation. The time to complete the mediation cannot exceed 30 days unless you and the local education agency agree to the extension. [5 Cal. Code Regs. Sec. 4660(a)(1) and (c).]

Either you or the local education agency can waive (give up) your right to the mediation process. If mediation is waived or if mediation does not resolve the issues, CDE must conduct an on-site investigation of the complaint. However, the parties may agree to mediate some of the issues and submit the other issues for state investigation. [5 Cal. Code Regs. Sec. 4660(a)(2), (b).]

If an on-site investigation is necessary, the CDE will appoint a compliance investigator to act on your complaint. At least two weeks before the investigation, the CDE will send a written notice of the investigator's name and the investigation dates. The notice will also explain the investigation process. The investigator will contact you and the local education agency to obtain both views of the problem and will review records if necessary. [5 Cal. Code Regs. Secs. 4662, 4663.]

The CDE must complete its investigation and resolve the complaint within 60 calendar days after receiving a request for direct state intervention or an appeal of a local investigation. [34 C.F.R. Sec. 76.78; 5 Cal. Code Regs. Sec. 4662(d).]

11. Who handles complaints when the CDE does not intervene directly?

If the CDE chooses not to intervene directly, it must send the complaint immediately to the local education agency involved for investigation. [5 Cal. Code Regs. Sec. 4640(a)(1).] In addition, the CDE must notify you by letter that it has transferred the complaint and that the CDE is requesting local resolution of the complaint. The letter must also advise you of the appeal procedures should you disagree with the results of the local investigation. [5 Cal. Code Regs. Sec. 4640(a)(2).]

12. How do I file a compliance complaint with my local school district?

You should file a compliance complaint with your local school district unless you are requesting a direct investigation by the CDE. See Question 6. You should send the complaint to your Superintendent of Schools or the Director of Special Education. [5 Cal. Code Regs. Sec. 4630(b)(2).]

Each school district must have its own written complaint investigation policy and procedure that has been approved by its Board of Education. Be sure to request a copy of your school district's specific complaint investigation process before you file a complaint with your local district.

You should fully describe the situation that has caused you to request the compliance investigation, including which parts of the law have been violated. You may not know the exact section(s) of law that have been violated. That is all right. If you describe the situation adequately, the school district should match the correct section(s) with your particular situation. If your child's IEP or other documents are relevant to your complaint, you should attach them. See Sample Letter - Compliance Complaint at the end of this chapter.

13. How does a local school district conduct investigations?

The school district has 60 calendar days after receiving your complaint to complete an investigation. This time period may be extended only with your written agreement. [5 Cal. Code Regs. Sec. 4631(a).]

You or your representative, or both, and the school district must have the opportunity to present information relevant to the complaint. Depending on your school district's policies and procedures, the investigation may include a way for you and the school district to meet and discuss the complaint or to question each other or each other's witnesses. [5 Cal. Code Regs. Sec. 4631(b).]

The school district's decision after investigation must be in writing. It should contain findings of fact, a determination of whether the school district was out of compliance, corrective actions required by the school district (if any), and the reasons for making the decision. The decision should also include a notice of your right to appeal to the CDE and the procedures you must follow in making an appeal to the CDE. [5 Cal. Code Regs. Sec. 4631(c).]

14. Can a local school district try to mediate a complaint as part of its local investigation process?

Yes. School districts may develop a mediation procedure in order to resolve complaints before conducting a formal investigation. This mediation process cannot extend the 60-day time line for resolving complaints unless you agree in writing to the extension. However, mediation cannot be a mandatory part of the process. You may waive this mediation step. [5 Cal. Code Regs. Sec. 4631(d).]

15. What happens if I disagree with the local education agency's report?

You may appeal directly to the CDE, Superintendent of Public Instruction, for review of the local decision. You must make any appeal to the CDE for review of a local education agency decision within 15 days after you receive the final written decision of the local agency. [5 Cal. Code Regs. Sec. 4652(a).] If you appeal a decision to the Superintendent of Public Instruction in the CDE, an impartial review must be completed and a report mailed within 60 days of receipt of the request for appeal. [5 Cal. Code Regs. Sec. 4662(d).] See Questions 9 and 10 for the CDE investigation process.

When appealing a local education agency decision, your complaint must set out the reasons for appealing the decision. The appeal must include a copy of the original complaint and a copy of the local education agency decision. [5 Cal. Code Regs. Sec. 4652(b) and (c).]

16. What happens when the CDE finds a public education agency to be out of compliance?

If the investigation indicates a failure by the public education agency to comply with law, the CDE may require corrective action. The CDE investigation report must set forth the corrective actions the education agency is to take, along with time lines for correction. [5 Cal. Code Regs. Sec. 4664.]

If the non-compliance is not remedied, the Superintendent shall take further action. Actions may include a court proceeding for an order compelling compliance, or a proceeding to recover or curtail state funding to the non-compliant local education agency. [5 Cal. Code Regs. Sec. 4670(a).]

17. What can I do if I do not agree with the CDE's decision?

If you or the local education agency are dissatisfied with the CDE's investigation report, either of you may request reconsideration by the Superintendent within 35 days of receipt of the CDE's investigation report. The Superintendent may respond in writing within 15 days, either modifying the conclusions or corrective actions of the CDE's report, or denying the request outright. The CDE's report remains in effect and enforceable pending the Superintendent's reconsideration. [5 Cal. Code Regs. Sec. 4665(a).]

If you are dissatisfied with the final decision of the Superintendent of Public Instruction for the CDE, you may request review of that final decision by the U.S. Department of Education, Office of Special Education and Rehabilitative Services (OSERS). [5 Cal. Code of Regs. Sec. 4665(c); 34 C.F.R. 300.660-300.662.] OSERS's review is discretionary. In other words, OSERS may, but is not required to, review every request for review of the CDE's final decisions.

Any request for OSERS review of the final decision of the CDE must include the following:

  1. A copy of the CDE's final decision on the complaint;
  2. A copy of the complaint filed with the CDE that resulted in the CDE's final decision; and
  3. A letter that outlines the specific aspects of the decision with which the requester disagrees, the basis for that disagreement, and the relief that the requester is seeking.

Review by OSERS is not a new investigation. It is simply a review of the matter based only on the written materials listed above.

Requests for review should be directed to:

Judith E. Heuman, Assistant Secretary, Office of Special Education and Rehabilitative Services, 330 C Street, S.W., Suite 3006, Switzer Building, Washington, DC 20202-2500

If review is granted, an OSERS staff person will be assigned the review and will notify the requester by letter that review has been granted. There is no time line for receipt of this letter.

The criteria used by OSERS to grant review are generally as follows:

  • Complaint raises issues of the proper interpretation of federal special education law by the CDE and where there does not appear to be disagreement about the pertinent facts.
  • Complaints that raise issues of national or statewide significance for the education of children with disabilities are more likely to be granted review.
  • Complaints which raise new issues or issues on which states or courts have issued conflicting decisions and review would give OSERS an opportunity to clarify the situation for everyone.

Review will generally not be granted when the complaint presents factual disputes. Factual disputes must be filed under the due process hearing procedure. In addition, complaints that raise issues which depend on laws other than federal special education law (such as state law or Section 504 of the Rehabilitation Act or the Family Education Privacy Rights Act, etc.) will not be granted review. OSERS will in most cases advise the requester in writing the general reasons for denial.

If a review is granted, the decision of the CDE will either be upheld by OSERS or it will be overturned. If the CDE decision is overturned, there will be an order from OSERS regarding the appropriate corrective action to be taken by the CDE. As an alternative, if OSERS finds that the CDE decision failed to address and resolve all issues presented by the complaint, OSERS may order the CDE to do so. The parent, or whoever is pursuing the complaint, may ask for review by OSERS of the results of the CDE further consideration of the complaint.

18. Can I file a complaint with any other agencies?

Yes. If your complaint involves an issue of educational discrimination under Section 504 of the Rehabilitation Act of 1973 (see Question 19), you can file a discrimination complaint with the U.S. Department of Education, Office of Civil Rights (OCR). Complaints of educational discrimination against students by education agencies may also be filed with the CDC. [5 Cal. Code of Regs. 4600(c); 4630(b); 4650(a)(ii).] Issues of educational discrimination, however, are usually appropriate for filing with the OCR under Section 504.

19. How would I file a complaint with the OCR?

The OCR is responsible for investigation of complaints regarding allegations of discrimination on the basis of disability that may constitute violations of Section 504 of the Rehabilitation Act of 1973. [29 U.S.C. Sec. 794.] You will find the regulations defining what constitutes discrimination in education under Section 504 at 34 C.F.R. Sec. 104.1 et seq.

If you wish to file a complaint with the OCR, you should write or call OCR at the address below and ask for a copy of the complaint form and instruction sheet for filing such a complaint.

U.S. Department of Education, Office for Civil Rights, Region IX Office, Old Federal Building, 50 United Nations Plaza, Room 239, San Francisco, CA 94102, Telephone: (415) 437-7700; TTY (415) 437-7786; FAX (415) 437-7783

Complaints that do not allege violations of Section 504, but may constitute violations of P.L. 94-142, should be filed with the CDE as a compliance complaint. See Questions 1, 2, 3, 5, 6, 19 and 20.

20. When would I file a Section 504 discrimination complaint with OCR?

A parent or other interested party may wish to file a Section 504 complaint whenever, as a result of the conduct or policy of the education agency, a student with a disability does not receive educational benefit from the program commensurate with that received by his/her non-disabled peers. This includes, of course, the situation where a student with a disability is excluded from participation in any federally funded program or activity, such as public education. [34 C.F.R. Sec. 104.4(a).] Schools generally receive federal funding. A student does not have to be a special education student for you to file a discrimination complaint with OCR against a school. (See Chapter 1, Question 6 of this manual.) Such complaints could include access issues like architectural barriers or program access. You must file a discrimination complaint within 180 days from the date of the discrimination. [34 C.F.R. Sec. 100.7(b).]

21. How does the OCR act on complaints?

The OCR will acknowledge your complaint within 15 days of its receipt. However, OCR may take up to 45 days to review your complaint if additional information is necessary to process your complaint. OCR will investigate your complaint and send you a letter of finding within 120 days from the start of the investigation. If it finds the school district to be out of compliance, OCR will seek voluntary compliance within 60 days from date the school district receives the letter of finding. If arrangements for compliance cannot be achieved, OCR will begin enforcement measures within the next 30 days.

If you requested a state due process fair hearing on the same issue that you filed with OCR, OCR will postpone action on your complaint until resolution of your request for a hearing.

22. Can I file a discrimination complaint with the CDE?

Yes. You may file a complaint of discrimination under the CDE Compliance Complaint process. Complaints alleging discrimination are one type that calls for direct CDE intervention, as opposed to local education agency self-investigation. [5 Cal. Code of Regs. Sec. 4650(a)(ii).] Complaints alleging discrimination must be filed within six months of (1) the discriminatory conduct or (2) when the complaining party first learned of the discriminatory conduct. The Superintendent of Public Instruction may extend the six-month filing period by 90 days for good cause upon a written request that describes the reasons for needing the extension. [5 Cal. Code or Regs. Sec. 4630(b).]

The individual who files the complaint must ask for direct CDE intervention pursuant to Section 4650(a)(ii). Otherwise, the complaint should have been filed with the local education agency. [Cal. Code of Regs. Sec. 4630(b)(2).]

These investigations must be conducted in a manner that protects the confidentiality of the parties and the facts. [5 Cal. Code of Regs. Sec. 4630(b)(3).]

23. When would I request a due process hearing?

Normally, you would request a due process hearing after an IEP meeting (1) if you disagree with the special education service or placement being proposed by the district, or (2) when the district refuses to provide an assessment, a service or a placement for your child which you believe is necessary. [Cal. Ed. Code Sec. 56501(a); 34 C.F.R. Sec. 300.506(a).] At the present time, under state law, students cannot initiate due process procedures unless they are emancipated or are wards or dependents of the court for whom no parent can be identified or located and for whom no appropriate surrogate parent has been appointed. [Cal. Ed. Code Sec. 56501(a).]

24. When must a school district notify me if the district proposes to change or modify my child's special education program?

An important first step to due process of law in special education is an adequate written notice from the school district to you of exactly what the district is proposing or refusing to do and why. Any time a school district proposes to initiate or change the identification, evaluation, or educational placement of a student or the provision of a free, appropriate public education, it must provide the parent of the student with a written notification. In other words, any time a district proposes:

  • To change a student's special education qualifying condition or "label" (e.g., learning disability) including a determination that the student has no special education qualifying condition;
  • To initiate or change an evaluation of a student;
  • To change a student's educational placement; and
  • To change a component of a child's IEP, it must provide the parent a written notice that contains all the information described in question 25. [34 C.F.R. 300.504(a)(1).]

In addition, any time a district refuses a parent's request for a specific identification (qualifying condition) change, for a certain evaluation or change to an existing evaluation, for an educational placement change, for a change in a component of her child's IEP, the district must provide the parent with the same kind of written notice described below which explains and supports the reasons for its refusal. [34 C.F.R. 300.504(a)(2).]

25. What information should the school district include in this notice?

The written notice required above must contain all of the following:

  1. A full explanation of all procedural rights available to the student, including rights to pursue due process procedures and rights to confidentiality of information as provided in federal special education regulation;
  2. A description of the action proposed or refused by the district; an explanation of why the district proposes or refuses to take the action, and a description of any options the district considered and the reasons why those options were rejected;
  3. A description of each evaluation procedure, test, record, or report the district used as a basis for the proposed or refused action;
  4. A description of any other factors that are relevant to the district's proposal or refusal.
  5. The notice must be written in language that is understandable to the general public and must be provided in the native language or other mode of communication of the parent, unless it is clearly not feasible to do so.
  6. A statement that the parents have certain rights and how the parents can obtain a written description of those rights.

[20 U.S.C. 1415(c).]

The information contained in a written notice is crucial to a parent making intelligent and informed decisions. In Union School District v. B. Smith, 20 IDELR 987, a Federal Circuit Court in California ruled that notice provisions were not merely technical requirements but substantive rights, and precluded the district from arguing the appropriateness of a placement that had been verbally offered by the district and refused by the parents.

Unfortunately, this notice of proposed or refused changes by districts is one of the most universally ignored provisions of special education law in California.

26. Are there any other notices that the school district must give?

Yes, the district must give parents a written notice of their procedural rights at the time the child is first referred for special education evaluation, every time the parents are notified of an IEP meeting,[(1)] whenever a child is re-evaluated, and whenever a parent files for a due process hearing. [20 U.S.C. Sec. 1415(d)(1).]

27. What information must the procedural rights notice contain?

The procedural rights notice must be in the native language of the parents (unless the school district is clearly unable to do so). It must be written in an easily understandable way and must contain a full explanation of all of the following:

  1. Your rights to an independent educational evaluation (see Chapter 2 of this manual);
  2. Your rights to the prior written notice of change or refusal to change a program or service, etc., for a pupil (see Question 25 above);
  3. The requirement of parental consent to the assessment, program and placement of your child;
  4. Your rights to access your child's educational records;
  5. Your right to file complaints and/or to request a due process hearing;
  6. Your child's right to remain in his/her current placement while a due process hearing is pending, and any limitations or exceptions to that right;
  7. The procedures required to be used by school districts for pupils who are subject to placement in alternative educational settings for limited periods of time by school officials or hearing officers;
  8. The requirements for parents when they wish to place their children in private schools and seek public financing for such placements;
  9. The availability of and procedures for mediation;
  10. The procedures concerning due process hearings including the requirement that all evaluation results and recommendations be disclosed by the parent to the district and by the district to the parent at least five days before the hearing;
  11. The availability of court appeals following a due process hearing decision; and
  12. The availability of attorneys' fees from a school district to the parents where the parents are the prevailing party in a due process hearing, and a full explanation of any limitation on that right or potential denial of or reduction in attorneys' fees for parents.

[20 U.S.C. Sec. 1415(d)(2).]

NOTE: As a result of recent amendments to federal special education law, a special education pupil's rights to remain in his/her current educational placement during due process proceedings or until his/her IEP has been changed with a parent's consent, as well as a pupil's rights in the discipline (suspension and expulsion) process [see Chapter 8] have been lessened somewhat by the federal law. However, California law has not been amended and may still provide some protections which the federal law no longer provides. Where either federal or state law provides special education pupils more rights and protections than the other law, the law providing more rights and protections is the controlling law. [20 U.S.C. Sec. 1402(8)(B); Town of Burlington v. Department of Education, 736 F.2d 773 (1st Cir., 1984); David D. v. Dartmouth School Committee, 775 F.2d 411 (1st Cir., 1985); Geis v. Board of Education, (3d Cir., 1985); Board of Education v. Rowley, 458 U.S. 176 (1982); California School for the Blind v. Honig, 736 F.2d 538 (9th Cir., 1984); Doe v. Angrig, 651 F.Supp. 424 (D. Mass., 1987).] It is likely that school districts will begin to operate under the new lower standard of protection of the federal law immediately and ignore the existing state law. Parents should be aware, however, that until state law is amended to conform to the federal law, pupils should be entitled to any of the higher protections of state law in the due process and disciplinary procedures.

28. What happens to my child if I file for a due process hearing?

Except in certain situations, your child must remain in her then current educational placement and have her current IEP fully implemented (including all related services) from the time you request a hearing until the due process hearing proceedings (and judicial proceedings, if any) are completed. Your child's current educational placement is the operative placement actually functioning at the time the dispute first arises. This "status quo" can be altered if the parents and local agency agree to a change in placement or services. The status quo might also change if, as a result of her dangerous behavior or possession of weapons or drugs, the school district obtains a court order barring the student from returning to her then current placement. This protection is sometimes called the "stay-put" provision. [20 U.S.C. Sec. 1415(j); 34 C.F.R. Sec. 300.513; Cal. Ed. Code Sec. 56505(d).] However, as a result of recent changes in law, school districts are less likely to resort to using the courts. Schools may prefer or may be required to use temporary alternative educational settings to address safety issues rather than seeking to have a court bar a pupil from all educational services for an indefinite period of time.

Note: Although the "stay-put" provision applies after filing for a due process hearing and during the period of any due process mediation conference, this protection does not apply to the pre-due process mediation conference provided for by Cal. Ed. Code Sec. 56500.3. See Question 44.

Sometimes districts attempt to move a student to a new school or class that also meets the program description of the IEP. The district may then argue that such a change is not a "change in placement", thus allowing the district to make the move while due process is pending. State Hearing Office decisions have held that such a move is unlawful, unless the original placement has been discontinued by the district for budgetary reasons. Student v. Saddleback Valley Unified School District, SN60-94; Student v. Oxnard Elementary School District, No. 777-94A.

The "status quo" rule has been considered to be inapplicable to a situation where a student is placed by a district in a private school and the parents then move to a new district. This understanding has been fostered by 5 Cal. Code Regs. 3067, which allowed the new district to provide an alternative public placement if it does not believe continued placement in the private school is necessary. However, Section 3067 was declared void by the Legislature in Section 11 of AB 1250, effective January 1, 1995. A Federal District Court in Maine has held that the "status quo" rule does apply to this situation, even when the parents move to a new state. It is arguable that Section 3067 conflicted with IDEA. Now that it has been voided, it appears that a parent of a publicly funded private school student who moves to a new district and files for due process can require the new district to continue to fund that placement while due process is pending.

29. Are there exceptions to my child's right to remain in his current educational placement while due process proceedings are going on?

Yes, even if due process is pending, and at any other time as well, school officials or administrative hearing officers may change a pupil's placement to another educational setting under certain circumstances and for certain periods of time without parental consent. [20 U.S.C. Sec. 1415(k).]

30. Under what circumstances and for how long may school officials change my child's placement without my consent?

School officials may place a special education pupil in an appropriate interim alternative educational placement for up to 10 school days for any behavior for which a non-special education pupil could be placed in an alternative setting. (For a list of behaviors for which pupils can be placed in these alternative settings, see Chapter 8 of this manual or Cal. Ed. Code Sec. 48900.) [20 U.S.C. Sec. 1415(k).]

In addition, school officials may place a special education pupil in an appropriate alternative educational placement for up to 45 calendar days if the child has done either of the following:

  • Carried a weapon to school or to a school function (weapon means any device or material used for, or readily capable of, causing death or serious bodily injury; weapon does not include a pocket knife with a blade less than 2.5 inches long), or
  • Knowingly possessed or used illegal drugs or sold or solicited for sale a controlled substance while at school or a school function (controlled substances are listed at Title 21 U.S.C. Sec. 812(c); illegal drugs are all the controlled substances except those legally possessed or used under the supervision of a health care professional).(2)

[20 U.S.C. Sec. 1415(k)(1)(A).]

31. Must the school officials do anything else if they choose to change the my child's placement for any of the reasons described in the previous answer?

Yes, if school officials change a special education pupil's placement for either 10 days or 45 days, as described in the previous answer, they must, either before or 10 days after changing the placement, convene an IEP meeting to develop an assessment plan. The assessment plan must be for a functional behavioral assessment. Generally speaking, a functional behavioral assessment is an evaluation to determine what function the unacceptable behavior achieved for the pupil and what behavioral services may be necessary to eliminate that behavior and teach socially acceptable behaviors in its place. If the school district has already done a functional behavioral assessment and implemented a behavior plan, then the IEP meeting must still take place before or within 10 days of the placement change, but it shall be for the purpose of reviewing the behavior plan and modifying it, as necessary, to address the behavior that led to the placement change. [20 U.S.C. 1415(k)(1)(B).]

32. Under what circumstances and for how long may a hearing officer change my child's placement without my consent?

Federal law now provides that, following a request by school officials, a hearing officer may order a pupil into an appropriate alternative educational placement for not more than 45 calendar days if the hearing officer does all of the following.

  • Finds, by substantial evidence, that if the pupil remains in her placement, she is substantially likely to cause injury to herself or others.
  • Considers the appropriateness of the child's current placement. (It is unclear from the law what significance a finding of appropriateness or inappropriateness would have on the hearing officer's decision whether to change the pupil's placement. Presumably, if the hearing officer found the current placement appropriate, he/she would find that factor satisfied in favor of the school officials. If the hearing officer found the placement inappropriate, presumably, that factor would weigh against the school official's request to change the placement. If school officials were serving the pupil inappropriately when the pupil displayed these behaviors, school officials should not have their request for a change in placement granted. Rather, the child should be returned to his placement with whatever the hearing officer found inappropriate about the placement fixed before he/she returned.)
  • Considers whether the school has made reasonable efforts to minimize the risk of harm in the current placement, including the use of supplementary aids and services. (Again, it is unclear what significance the results of this consideration will be. If the hearing officer found that the school has not made reasonable efforts, presumably, this would be sufficient cause to deny the school's request to change the placement.)
  • Finds that the alternative educational placement will enable the pupil to continue to participate in the general curriculum, will continue to provide the services specified in the IEP, and will include services to address the child's behaviors.

[20 U.S.C. 1415(k)(2).]

NOTE: Since the amendments to federal special education law in June of 1997, the Special Education Hearing Office has taken the position that this new right of school officials to request that a hearing officer change a pupil's placement for 45 days on the grounds of likelihood of injury sets a lower standard of protection than does California law. The Special Education Hearing Office has, therefore, declined to act on requests by school officials to change pupils' placements for up to 45 days on these grounds. [See Stanislaus County Office of Education and Ceres Unified School District v. Student, SN 1357-97.] Until California law is amended to be consistent with federal law on this point, changes in pupils' placements without parental consent on the grounds of likelihood of injury will have to be made by state or federal court judges.

33. My child's behavior is the result of his disability. Is there any requirement that my child's disability be taken into consideration before he is placed in a 45-day alternative placement without my consent?

Prior to the placement change being made by school officials or a hearing officer, there is no requirement of any consideration of whether the child's disability may have caused the objectionable behavior. However, on the day the decision to change a pupil's placement is made by school officials, the parents must be notified of that decision and of all their rights. No more than 10 days later, the IEP team, including the parents, must meet to review the relationship between the child's disability and the behavior in question. [20 U.S.C. 1415(k)(4)(A)&(B).]

(For a discussion of the requirements for that IEP, please see Chapter 8, Questions 4-9.)

34. Who determines what is an appropriate alternative educational setting for my child and what are the criteria for that determination?

The determination must be made by the IEP team. The alternative placement must enable the student to participate in the general curriculum (although in another setting), and continue to receive services and modifications, including those described in the IEP that enable the child to meet IEP goals. The placement must include all services and modifications designed to address the behavior in question so that it does not reoccur. [20 U.S.C. Sec. 1415(k)(3).]

35. May I challenge the IEP team's determination of an appropriate alternative placement by filing for due process?

Yes, you may challenge the alternative placement in due process, on the basis that the district has not met the legal requirements to justify a change of placement, or on the basis that the alternative placement does not meet the standards set out in Question 34 above. You also have the right to go to due process to appeal the decision of a hearing officer who has put your child in an alternative placement under the "substantially likely to result in injury to self or others" criteria discussed in Question 32. [20 U.S.C. Sec. 1415(k)(6).] This potentially gives you twodue process hearings before, presumably, two different hearing officers on the issue of whether your child meets these criteria. Of course, during these appeals your child remains in the alternative placement pending the decision(s) of the hearing officer(s) or upon the expiration of 45 days, whichever occurs first. [20 U.S.C. Sec. 1415(k)(7)(A).] Since, under normal timelines for due process hearings, the case might not be decided by the time the 45 days have expired, the law allows you to request the hearing office to schedule an expedited hearing. [20 U.S.C. Sec. 1415(k)(6)(A)(ii).]

36. If due process has not been completed within the 45-day limit for alternative placement, are there any circumstances when the alternative placement may be extended?

The district may request that the hearing officer extend the alternative placement on the basis that returning the child to his original placement would constitute a danger. Upon request, the hearing officer will hold an expedited hearing. The hearing officer may then order such an extension if he/she believes that the criteria have been met. If such a decision is made by the hearing officer, the student remains in the alternative placement until the final due process decision is made. [20 U.S.C. Sec. 1415(k)(7)(C).]

37. My child, who is being expelled, has not been made eligible for special education but I believe he would qualify if the school district assessed him. What will happen with my child's placement while we are waiting for the results of that evaluation?

Where you have requested an evaluation for special education eligibility after the behavioral episode that led to the expulsion recommendation, the evaluation must be expedited. However, until the results of the evaluation are available, the child will remain in the educational placement determined by school officials. (It is not clear from the law that whether Congress intended the expedited evaluation to be completed before any expulsion hearing takes place or whether an expulsion hearing could precede completion of the expedited evaluation.) [20 U.S.C. Sec. 1415(k)(8)(C).]

38. My child, who is being expelled, has not been made eligible for special education but I believe she would qualify if the school district assessed him. Is my child protected by any special rules regarding discipline procedures for students with disabilities that have not been officially recognized by the school district?

Your child is entitled to all the pre-expulsion protections which a special education child has if you can establish that the district had knowledge that the child had an eligible disability before the behavior that precipitated the disciplinary action occurred. The district is deemed to have such knowledge if, before the behavior in question: (1) the parent has expressed concern in writing to the district that the child was in need of special education (unless, because of illiteracy or disability, the parent could not comply with this requirement); (2) the behavior or performance of the child demonstrates the need for special education; (3) the parent requested special education evaluation by the district; or (4) the child's teacher or other district personnel have expressed concern about the behavior or performance of the child to the district special education director or other district personnel. [20 U.S.C. Sec. 1415(k)(8)(A&B).]

The parent should file for due process and ask for an expedited hearing in order to present these arguments as soon as possible.

39. How do I set up a due process hearing?

You must make your hearing request in writing and send it to:

Special Education Hearing Office, Institute for Administrative Justice, McGeorge School of Law, 3200 Fifth Avenue, Sacramento, CA 95817, (916) 739-7053 (916) 739-7066 (FAX)

You should also send a copy to the local education agency. [Cal. Ed. Code Sec. 56502.] If you ultimately prevail in the due process hearing and if you have used an attorney to represent you and wish to collect your attorney's fees from the school district, your request for fees may be reduced if you have not provided certain information in your letter initially requesting a due process hearing. At a minimum, your letter requesting a due process hearing must include: the name and residence address of the child and the name of the school the child is attending, a description of the nature of the problem, and a description of your proposed resolution or resolutions to the extent known to you at the time. [20 U.S.C. Sec. 1415(b)(7).] The California Department of Education is required to develop a model form to assist parents in filing for due process which includes all necessary information. [20 U.S.C. Sec. 1415(b)(8).] The Special Education Hearing Office which conducts the due process hearings and mediations recommends that the letter requesting due process contain some additional information. For that reason, you should use the Sample Letter -- Due Process Hearing Request at the end of this chapter.

When you make your written request for a due process hearing, you should also ask for a copy of the Special Education Hearing Office Notice of Procedural Safeguards, updated 6/97, and any amendments or updates to it, so that you know all the rules for conducting the hearing.

Within three days after receipt of your request, the local education agency must inform you of free or low cost legal services available in the area. [Cal. Ed. Code Sec. 56502.]

40. Can the local education agency request a due process hearing?

Yes. Either the parent or the local education agency may request a due process hearing. [34 C.F.R. Sec. 300.506(a); Cal. Ed. Code Sec. 56501(a).]

41. Once a request for a due process hearing is made, how long does the special education hearing office (SEHO) have to hold the hearing and make a decision?

The SEHO has 45 days from the day it receives the due process hearing request to make a decision. [34 C.F.R. Sec. 300.512; Cal. Ed. Code Sec. 56502(a).] Upon request, the SEHO can grant a continuance for good cause. [Cal. Ed. Code Sec. 56505(f).]

42. What is a mediation conference?

After a due process hearing request is made, the SEHO will provide a mediator to sit down informally with both sides and try to resolve the disagreement. The first step in due process is usually a mediation conference where a mediator from the SEHO helps the parent and school district to resolve their disagreement. The mediator will meet with the parties together and/or separately in an attempt to find common ground and issues on which the parties can move toward resolution. The mediator has no power to force either side to do anything, but only tries to help you reach an agreement.

You have a right to a mediation conference, but you can also waive your right to the mediation conference and proceed directly to the due process hearing. The educational agency has the same right to waive the mediation conference, even if you request the due process hearing. [Cal. Ed. Code Secs. 56502(c), 56501.] The mediation conference must be scheduled within 15 days of the request for mediation. Mediation must be completed within 30 days of receipt of the request for a due process hearing, unless both parent and district agree to extend time for completing mediation. [Cal. Ed. Code Sec. 56503(e).]

Although many disputes are settled in mediation, you cannot assume that your dispute will be resolved. Accordingly, it is in your best interests to be as prepared as possible at mediation. The benefits of being well prepared include having increased negotiating power at mediation, and advanced preparation for the due process hearing if that becomes necessary.

43. What are the pros and cons of going through mediation?

Mediation is encouraged because it gives both sides another chance to reach agreement. An impartial mediator increases the possibility of resolution. The mediation does not change the 45-day rule, although parents are sometimes asked to extend the 45 days to aid in the mediation process. From a tactical standpoint, mediation often gives parents more information about the education agency's point of view. Such information may be helpful if there is a due process hearing.

On the negative side, mediation requires additional time and energy. If it appears that there is absolutely no hope for agreement, it may be best to waive mediation. However, before waiving mediation, make sure that you are prepared to proceed to the due process hearing. Waiving mediation may result in the due process hearing being scheduled sooner than if you participated in mediation.

See Question 44 for a discussion of the distinction between "pre-due process mediation" and "due process mediation" conferences, and the disadvantages of the "pre-due process mediation" conference.

44. Are there any dispute resolution procedures other than the compliance complaint and due process mediation and hearing?

Yes. After identification of a disputed issue, you may ask for a "pre-due process" mediation. This pre-due process mediation is not mandatory and you may proceed directly to filing for a due process hearing.

A pre-due process mediation is conducted exactly like a due process mediation. The state will provide a mediator to sit down informally with both sides and try to resolve the disagreement. See Question 42. The pre-due process mediation must be scheduled within 15 days and completed within 30 days of receipt of your request by the Special Education Hearing Office. A copy of the written resolution, if any, must be mailed to you and the school district within 10 days following the pre-due process mediation conference. The Special Education Hearing Office will likely not offer a due process mediation after the parties have participated in a pre-due process mediation without success.

You must request your pre-due process mediation in writing. You should send your request to the Special Education Hearing Office with a copy to your local school district. See Question 39 for the address. In order to assist the Special Education Hearing Office, you should include a specific request for a pre-due process mediation in your letter. [Cal. Ed. Code Sec. 56500.3.]

There are several major disadvantages to participating in a pre-due process mediation. One disadvantage of the pre-due process mediation is that parents cannot have an attorney or independent contractor to provide legal advocacy and participate at the mediation. Another critical disadvantage of the pre-due process mediation, and the reason advocates do not recommend it, is because the "stay-put" protections, which guarantee that the student will remain in his existing placement until the dispute is resolved, do not apply until a due process hearing has been requested [Cal. Ed. Code Sec. 56500.3 and 56501.]

45. Should I file for due process immediately, that is as soon as it becomes apparent that the school district and I are at an impasse over services or placement at the IEP meeting?

If the school district is threatening to change your child's program or placement without your consent and you wish to keep things the way they are, you may have to file for due process just to preserve the status quo by taking advantage of the "stay-put" provision. See Question 28 of this chapter.

Generally, however, you should not file for due process until you are prepared to properly participate in due process, even if you feel your child is currently being inappropriately served. Nothing about the inappropriate program is likely to change simply by your filing for due process; on the other hand, the time spent preparing your evidence will increase your chances of a successful result.

Within a few days of filing for due process, you will receive a notice from the SEHO. The notice will contain the dates (2 consecutive days) set for the hearing. The notice will also include the name and telephone number of the assigned mediator. It will be up to you and the district to contact the mediator and make arrangements for a mediation conference prior to the hearing dates, if possible. If you are unable to arrange for mediation prior to the hearing dates, you will need to postpone the hearing. . The due process hearing dates will be set for approximately five weeks from the date the SEHO receives your request for due process. The reason these dates for mediation and hearing are set approximately three and five weeks from the date of receipt of your request for due process is because of the SEHO's attempt to comply with the federal law requiring your receipt of the due process hearing decision within 45 days of your request for due process.

46. How do I know if I am prepared for the due process hearing?

At the due process hearing, you will be required to present evidence which establishes that your child needs the services or placement you are seeking through due process. The following are some examples of common disputes.

  • You are dissatisfied with the goals and objectives of your child's IEP. For example, you believe that they are unclear or that your child could with certain services accomplish more than the district is willing to acknowledge. You will need evidence that the objectives you would like to write are reasonable expectations for learning and skill acquisition for your child in light of his her disability and the amount of time in which you would expect the objective to be reached.
  • You may agree with the goals and objectives but disagree with the district on the level of services needed to accomplish these objectives. You will need evidence regarding the level of services which will be required by your child to achieve the IEP objectives.
  • You may disagree with the placement the district is proposing. For example, you may believe that the placement does not offer your child maximum appropriate interaction with nondisabled children. You will need evidence regarding the supportive services that could be employed to make it possible to serve your child in the regular classroom or in a more integrated way than that which the district is proposing.

At a minimum, you may be prepared to enter a due process hearing after you have familiarized yourself with what the legal standards are for the IEP services or placement you hope to obtain. Before entering a due process hearing, you must also make sure that the proof you need to meet those legal standards will be available to you when you need it. If some of your proof is in the form of documents, you must have those documents at least five days before the hearing to exchange with the school district. The Special Education Hearing Office asks that you supply it with a copy of those documents seven days before the hearing. The witnesses you intend to use to prove your case must be planning on appearing to testify at the date, time and place set for the hearing.

47. Where do I get the evidence I will need to present at the due process hearing?

The information you will need to support and establish your beliefs on these issues may come from your testimony if you can give examples of other similar learning experiences, good or bad, which you have had with your child when he/she received a certain level or type or service or when he/she was placed in a certain environment. However, it is likely that there may be a need for testimony from someone who knows your child and who is knowledgeable in the education or training of persons with disabilities to establish some of these elements and to describe what kinds of services may be needed, and in what amounts, and in what environments, and why.

Before requesting due process, the parent, who believes such additional testimony is necessary or desirable for the best chance of success, must find such a witness and make sure that he/she is both willing and available to provide that kind of testimony approximately five weeks from the time the parent is contemplating filing for due process.

48. Can experts testify at a due process hearing?

Yes. It is often very important to have expert witnesses at a due process hearing. An expert witness is someone who has a great deal of knowledge about special education and, specifically, about your child's disability and special education needs. The expert witness can assess your child and the various components of the programs at issue and make a professional observation about what is and is not appropriate for your child.

49. How would I use an expert witness?

Since both sides usually have witnesses who will testify that their position is correct, it is important to have an "expert" testify for you. Normally, the expert will meet your child, review his educational records, visit his class, speak with his teachers, and generally analyze his special education needs and the programs/services the educational agency is offering. You will then call that expert as a witness to testify.

50. Instead of having witnesses come to the due process hearing, can I submit letters, records, or other documents to prove my case?

The SEHO follows a regulation which provides that a hearing officer may not base his or her decision on hearsay alone, but must have some other evidence to support the decision. Most documents are considered hearsay because they cannot be cross-examined by the other parties like live witnesses can. The right to cross-examine is an essential part of due process. Therefore, it is crucial to bring witnesses to the hearing who can testify about what they observed and/or what their opinions are concerning the issues in the hearing.

Documents further support and establish the testimony of the witness. Parents should gather and submit any and all documents that are supportive of their position in the case. However, parents should always make sure that some competent witness is available and willing to testify at the hearing on each major point the parents must establish in order to win.

51. Will the hearing officer read all the documents that I submit and the district submits?

You cannot assume that the hearing officer will read all of the records submitted by the parties prior to issuance of a written decision. Therefore, it is crucial to point out important statements and passages in the records you submit to the hearing officer, either directly or by references to those records by your witnesses while they are testifying. In addition, you should organize all the documents you plan to submit and identify them by numbers or letters. That way the hearing officer can easily refer to and locate documents both during and after the hearing.

52. Must I be represented by a lawyer in order to go through due process?

No, it is not required that you be represented by a lawyer. However, whether you need a lawyer depends on whether you can collect and properly present the evidence you will need to prevail. If you do not use a lawyer in due process, you should make every effort to consult with a lawyer or advocate who has training and experience in special education law and procedure.

A special education lawyer or advocate is important because he/she can inform you of what law applies to your child's situation. It is important to know what the legal standards are regarding the extent of your child's entitlement to special education services and placement. Your presentation of evidence through your witnesses and documents should be consistent with the legal standards that apply. The things which you and your witnesses will say and the contents of the documents you will submit must be consistent with what your child is entitled to under the special education laws in terms of the kinds and degrees of services and the location of the program.

If you choose to be represented by an attorney at the hearing, you must notify the other parties of this at least 10 days prior to the hearing. (Cal. Ed. Code Section 56507.)

If you do not use an attorney, you may wish to view Protection and Advocacy's video tape on preparing for and conducting a due process hearing.

53. What if I have already initiated due process but I need more time to prepare or to find a representative before the hearing?

As soon as you realize that you need more time, you should contact the school district to ask for the school district's agreement to a postponement. If the school district does not agree to a postponement, you should immediately make a written request for a postponement to the SEHO. A copy of that written request must also be sent to the district. Your written request to the SEHO must also indicate that a copy has been sent to the district. The SEHO has the authority to grant postponements for "good cause." What constitutes good cause is not specified by the SEHO. Therefore, you should mention as many reasons as you have for needing the postponement (for example, the need to obtain an independent educational evaluation, the unavailability of an important witness or the inability to retain an advocate or attorney to represent you). Recently, the Special Education Hearing Office has not found the unavailability of a witness, in and of itself, sufficient good cause to justify a postponement. The first postponement may be granted by the SEHO, but any further postponements may require much greater justification.

54. Where is the due process hearing held?

The due process hearing is often held at the educational agency offices. It must be at a time and place that is convenient for you and your child. [Cal. Ed. Code Sec. 56505(b).] However, you will not be consulted by the SEHO regarding convenient dates. If it is not possible for you to appear on the date assigned, you should request a postponement.

55. Who attends the due process hearing?

As a parent, you have the right to have the hearing open or closed. If the hearing is open, members of the public can attend. However, even if the hearing is open, you can still have witnesses sequestered. "Sequestered" means that witnesses cannot be present at the hearing to hear the testimony of other witnesses. [34 C.F.R. Sec. 300.508(b)(2); Cal. Ed. Code Sec. 56501(c)(2).]

If the hearing is closed, members of the public cannot attend. A closed hearing usually consists of you (and your child if you want), your representative, the hearing officer, the education agency's representative and the agency's advocate.

56. Can the parties submit written information to the hearing officer? How soon must they submit it? Do the parties have to disclose their exhibits and lists of witnesses before the hearing?

Both sides can submit exhibits (for example, letters of support, assessment reports, IEPs, etc.) and should do so. At least five days before the hearing, you must make sure the district has: (1) copies of all documents you intend to submit as exhibits at the hearing; and (2) a list of the potential witnesses you may call to testify at the hearing, along with a very brief and general statement regarding what each witness will testify about. Mailing this information five days before the hearing is not sufficient; the local education agency must receive these materials five days before the hearing. Likewise, the local education agency must submit its documents and list of witnesses to you at least five days before the hearing. Any exhibits or written material exchanged less than five days before the hearing can be prevented from going into the record, and any witnesses whose names were not disclosed five days before the hearing can be prevented from testifying. In addition, both you and the education agency should submit documents and lists of witnesses to the Special Education Hearing Office at least seven days before the hearing. [34 C.F.R. Sec. 300.508(a)(3); Cal. Ed. Code Sec. 56505(e)(6).]

At least 10 days before the hearing, each party must submit to each other party to the hearing a statement of (1) what that party believes are the issues to be decided at the hearing and (2) that party's proposed resolution of those issues. As a parent, you may have an attorney represent you and your child at the due process hearing. If you do not have an attorney in the due process proceeding, upon your request, a mediator must help you identify the proposed issues and resolutions. [Cal. Ed. Code Sec. 56505(e)(6).]

57. Is the due process hearing a trial or like court?

The due process hearing is not a trial and it is not technically like going to court (although they are similar in that witnesses are called). A due process hearing is an "administrative" hearing and does not take place in a courtroom or before a judge. The hearing officer is someone hired by the state who knows about special education, and who will impartially review all the evidence and make a decision.

58. How does the hearing proceed?

Normally, both sides give opening statements which generally describe the issues in the case. The party that calls for the hearing (the petitioner) then presents her case by calling witnesses. The responding party (the respondent) may then cross-examine the petitioner's witnesses, and the petitioner has the right to ask additional questions (re-direct) after the respondent has cross-examined.

After petitioner finishes her case, respondent calls her witnesses (the same procedure as before, examination, cross-examination, and then re-direct examination). Finally, both parties give closing arguments. You can also request that the record remain open so that you can submit a written closing argument. [34 C.F.R. Sec. 300.508(a)(2), Cal. Ed. Code Sec. 56505(e).]

59. What is the record?

The record is simply all evidence (written or oral) received by the hearing officer. Although not part of the evidence, the oral or written opening and/or closing statements of the parties are also included in the record of the administrative hearing. Oral evidence (testimony from witnesses), the opening and closing statements of the parties, and questions asked of witnesses are tape recorded by the hearing officer. The record also includes exhibits and other written material which have been accepted into evidence by the hearing officer. You are entitled to receive a copy of the tape recording after a decision is rendered if you ask for it. [34 C.F.R. Sec. 300.508(a)(4); Cal. Ed. Code Sec. 56505(e)(4).]

60. What if a witness does not want to attend the hearing?

The law provides that witnesses can be subpoenaed for a due process hearing. This means that the Special Education Hearing Office will give you subpoena forms to fill out and personally serve on the proposed witness. (For more information on personal service of subpoenas and other requirements for compelling attendance of witnesses, see Special Education Hearing Office Notice of Procedural Safeguards. It is available from the Special Education Hearing Office where you requested due process hearing.) A subpoena is an order from the state. It orders the witness to attend the due process hearing. [34 C.F.R. Sec. 300.508(a)(2); Cal. Ed. Code Sec. 56505(e)(3); 5 Cal. Code Regs. Sec. 3082(c)(2).]

61. Does the hearing officer at a due process hearing simply listen to witnesses and review the documents submitted, or can the hearing officer participate in the hearing process?

Hearing officers have a variety of powers in the conduct of a due process hearing, which allow them to participate in the process and to further develop the evidence on which they will base their decision. Hearing officers may do any of the following:

  1. Question a witness before any party does;
  2. With the consent of both parties, have conflicting expert witnesses discuss issues with each other on the record;
  3. Visit a proposed placement site;
  4. Call a new witness, not identified by any party, to testify if all parties consent or if there is a five-day postponement;
  5. Order an independent assessment and postpone the hearing until it is completed (with the costs of the assessment to be borne by the hearing officer);
  6. Call as a witness an independent medical specialist to testify about a student's medical disability (with the cost to be borne by the hearing officer).

62. Can I get the public education agency to pay for my attorney and expert witnesses?

Under federal law, if you are successful or partially successful in a mediation, a due process hearing, or a court hearing, then a federal court may award you reasonable attorneys' fees. [20 U.S.C. Sec. 1415(i)(3)(A)(B) Attorneys' fees are not available when you have an attorney represent you at an IEP meeting, except where the IEP meeting was convened at the order of a hearing officer or judge. [20 U.S.C. Sec. 1415(i)(3)(D).]

The term "reasonable attorneys' fees" means the lawyer's hourly charges consistent with rates in your area and the costs of pursuing the case -- for example, the cost of expert witnesses. The education agency may offer a settlement agreement which asks you to waive your right to attorneys' fees. Because of this possibility, you should thoroughly discuss it with your attorney at the time you hire him/her and before you enter into any discussions with the school district. . Other specific details about the federal attorneys' fee law cannot be included here. However, you can and should review these laws with your lawyer when you hire him. There are several laws concerning attorney's fees which parents should be aware of. A parent's attorney's fees may be reduced if the court finds that the parent did not do better as a result of the due process hearing than was offered to the parent in writing by the school district at least 10 days prior to the hearing beginning. Attorney's fees may be reduced if the court finds that the parent unreasonably delayed final resolution of the dispute. Attorney's fees may be reduced if the parent did not provide the required written notice to the district of certain information at the time of filing for a due process hearing. (See Question 40.)

63. If I lose the due process hearing, can I do anything?

Both sides have the right to go to court to appeal the due process hearing officer's decision. Any appeal to court must be filed within 90 calendar days of receipt of the administrative hearing decision. [34 C.F.R. Sec. 300.511; Cal. Ed. Code Sec. 56505(i).]

64. What remedies can I ask for when I file for a due process fair hearing or an action in court?

The most common remedy that parents request and obtain is an order that the school do something -- such as provide the educational services and/or placement that the parents believe constitutes a free appropriate public education in the least restrictive environment for their child. Other remedies include:

Reimbursement is the most common (and practically the only) type of monetary relief parents obtain. In the typical situation, the parents disagree with a school's decision about their child; the parents provide the services to the child at their own expense; a hearing officer or court holds that the parents' view was the correct one and gives the parents the remedy of reimbursement of unilateral expenses. This can include reimbursement of expenses for independent assessments, witness fees, private school tuition, etc.(3)

Compensatory education is sometimes awarded to a child when a school district's significant failure to provide a free appropriate public education has caused the child harm and the child needs additional education. Courts sometimes require evidence that the school district acted in bad faith before they will order compensatory education. This remedy results in the child getting extra schooling -- for example, summer school or school after age 22. It does not mean a monetary award. In California, compensatory education is generally difficult to obtain.

Generally No Damages. A hearing officer cannot award punitive damages for emotional distress or damages for educational malpractice or negligence. Actions requesting damages can be brought in court, but have generally not been successful.

Courts have not awarded damages for educational malpractice, because what constitutes acceptable educational practices has not been defined. They have in rare instances found a common-law theory of negligence for certain acts such as the negligent supervision of a student resulting in injury to the student.

Claims for punitive and emotional distress damages have generally not been successful. However, some students have been successful in actions brought exclusively against individual school personnel in their individual capacities and have obtained awards of damages for emotional distress and punitive damages. [Doe v. Withers (1993) 20 IDELR 422.]

In addition, as a result of changes in federal law, it may be possible in a few situations to obtain damages, including punitive damages, in court actions under Title 42 United States Code Section 1983 for violation of your child's statutory or constitutional rights. [See K. L. v. Southeast Delco School District (1993) 828 F.Supp. 1192 (20 IDELR 244); and Jane Doe v. Taylor Independent School District (1992) 975 F.2d 137 for cases involving physical and/or sexual abuse of students by school district employees.] One case, brought under Title 42 U.S.C. Sec. 1983 and under special education law, sought compensatory and punitive damages. [See Woods ex rel. T. W. v. New Jersey Dept. of Ed. (1993) 796 F.Supp. 767 (19 IDELR 327).]

Note also that recent amendments to the federal special education laws have clarified a student's/parent's right to sue a state in federal court for reimbursement for the costs of placement in an appropriate program where it is determined that a free appropriate public education was not made available to a student. This clarification reverses the U.S. Supreme Court decision in Dellmuth v. Muth, which held that the Eleventh Amendment guarantee of State Sovereign Immunity prohibited such a suit in federal court.

A more thorough discussion of the current status of the law regarding cases for damages and other relief is beyond the scope of this manual. For materials summarizing this topic, please contact the Sacramento Office of Protection & Advocacy, Inc.

65. How can a parent ensure that a school district honors the "stay put" provision?

Most school districts are aware of and usually honor the "stay put" provision. However, this issue has become more problematic in recent years. There are several alternatives available to help you enforce your "stay put" rights:

  1. As in all special education process interactions, a parent should let the school district know that you know your rights. This simple action puts the school district on notice that you expect them to fulfill their responsibilities according to federal and state law. Therefore, you could include a statement in your hearing request (a copy of which should be sent to your school district) asserting your "stay put" rights. Ask the school district to confirm your child's right to maintain his current placement and/or services within five days from the school district's receipt of your hearing request. If the school district does not respond, or refuses to honor your "stay put" rights, you may want to utilize option 2 or 3 below.
  2. You could file a compliance complaint with the state Department of Education. Unfortunately, CDE action may take too long for this to be of assistance to you. You could call the quality assurance office to request a "fast track" investigation or call your school district directly.
  3. Once you have filed for a due process hearing, you could file a "stay put" motion with the hearing office. This motion asks the hearing office to rule on your request for "stay put" prior to the mediation or hearing. Write a brief letter to the hearing office outlining your request and why you think the "stay put" provision should apply to your child's situation. A hearing office will review this basic information and issue an order in favor or against your "stay put" request. If the ruling is in your favor, the order will force the school district to enforce your "stay put" rights.

 Sample Letter - Compliance Complaint

Ms. Bev Blue
Address
City, CA Zip
Telephone Number

Date

Complaint Management and Mediation Unit
Special Education Division
California State Department of Education
515 L Street, Suite 270
Sacramento, CA 95814

Dear Sir or Madam:

This is a special education compliance complaint. [5 Cal. Code Regs. Sec. 4600 and following.] I feel that Local Unified School District (LUSD) is out of compliance with federal and state special education laws.

My child's name is John, and he is seven years old. He is developmentally delayed and has a physical disability which requires him to use crutches. I had the following problems with my school district:

NOTE: Pick the problems that apply to your child's situation. If you have a different problem from the ones listed, describe the situation fully and include the part of the law that has been violated. If you do not know the law that has been violated, the Compliance Unit should match the correct law to your situation. See Question 8.

  1. I never consented to psychological assessments done by the district on January 21, 1986. (Failure to get written parental consent for assessment, Cal. Ed. Code Sec. 56321.)
  2. When I asked the district for a copy of the tests done by the psychologist, they refused to give me a copy. (Failure to provide parent with requested records, Cal. Ed. Code Sec. 56504; 34 C.F.R. Sec. 300.502.)
  3. At the February 8, 1986, IEP meeting, LUSD refused to write down in the IEP the need for, and frequency and duration of, physical therapy services (related services). (Failure to provide frequency and duration of related service, 5 Cal. Code Regs. Sec. 3051; 34 C.F.R. Sec. 300-346.)
  4. John's IEP states that he will have lunch and music class with non-disabled students, but the district has not provided these opportunities. (Failure to implement the IEP, Cal. Ed. Code Sec. 56345; failure to provide least restrictive environment, Cal. Ed. Code Sec. 56364; 34 C.F.R. Sec. 300.550-553.)
  5. John's IEP states that he is to receive speech therapy twice a week for 30 minutes but LUSD says they do not have a therapist available. (Failure to implement the IEP, Cal. Ed. Code Sec. 56345.)

In order to resolve this complaint, I am asking for the following remedies:

  1. Allow me access to my child's records;
  2. Get my consent before future assessments;
  3. Order the district to allow John to have lunch and music class with non-disabled students as per his IEP;
  4. Modify the IEP to state that physical therapy three times per week, 30 minutes per week must be provided; and,
  5. Immediately begin the twice weekly speech therapy sessions specified in John's IEP.

I have enclosed a copy of my child's IEP and a letter to the district asking for a copy of the psychologist's report.

Because my complaint involves a matter which calls for direct State Department of Education intervention pursuant to Title 5 Cal. Code of Regulations Section 4650(a)(viii)(C) [if it involves immediate physical danger or threat to children], (D) [if it involves nonimplementation of a student's IEP], or (E) [if it involves a violation of federal special education statute or regulation (see Question 7 for a listing of those situations in which direct state intervention is required)], I have not filed with the local education agency. Rather, I request direct state intervention in this matter.

I ask for immediate investigation and resolution, as my child cannot afford to wait for these services. Thank you for your assistance.

Very truly yours,

Bev Blue

NOTE: See Due Process Hearings/Complaints for information on time lines that apply to compliance complaints.

NOTE: If you have not heard from the Compliance Unit within 10 days after you mail your complaint, we recommend that you call to follow up at (916) 322-0372 (direct).


 Sample Letter - Due Process Hearing Request

Ms. Bev Blue
Address
City, State, Zip
Telephone Number

Date

Special Education Hearing Office
Institute for Administrative Justice
McGeorge School of Law
3200 Fifth Avenue
Sacramento, California 95817

RE: Due Process Hearing

Dear Sir/Madam:

I am writing to request a due process fair hearing for my son, John Blue. John Blue's address is [address]. His date of birth is [date]. He is in the grade. He is attending [name of school district] district. John Blue resides in the [name of the school district in which the child resides] school district. I am the parent [or guardian] of John Blue and my residence address and telephone number are as noted above.

Besides the [name] school district, the [name of other public agency involved in the assessment or provision of special education or related services to the pupil] is involved in John's IEP.

I am requesting this due process proceeding because [explanation of disputed issues involved]. I believe these disputed issues could be resolved if [explanation of parent's/guardian's proposed resolutions to each disputed issue described above].

As noted below, I have sent a copy of this letter to [name of applicable school district special education official]. Please send me a copy of the Special Education Hearing Office Notice of Procedural Safeguards and any amendments or subsequent revisions of the Notice. Please contact me as soon as possible to advise me of the dates of the due process hearing and name and telephone number of the proposed mediator.

Sincerely,

Bev Blue

cc: [name of applicable school district superintendent to whom copy of this letter has been sent.]

NOTE: You can also use your school district's form for requesting a due process hearing, if your district has one, and if the form contains all of the information included above. You should send a courtesy copy of your request for a due process fair hearing to the superintendent of the school district.


 Endnotes

  1. The requirement is that parents receive a written notice of their rights whenever they are notified of an IEP meeting. The school district cannot, therefore, wait and hand out a copy of this notice at the IEP meeting itself.
  2. This item is an example of a distinction between federal and state law. Although state law has been amended to permit school officials to unilaterally change a pupil's placement for weapon possession (see Cal. Ed. Code Sec. 48915.6), it has not been amended to permit this for drug possession or use. Therefore, arguably, in California, school officials lack this authority and would have to proceed to court to obtain an injunction barring the student from school and overriding his/her right to remain in his current educational placement.
  3. A recent unanimous U.S. Supreme Court opinion ruled in the parent's favor and ordered reimbursement. [Florence County v. Carter, 20 IDELR 532.] The parents of a special education student had enrolled their child in a private school that the state department of education had not approved. The parents later established that all placements the school district had offered were inappropriate. They sought reimbursement from the school district for tuition at the private school. (This case is limited to retroactive reimbursement for placements by parents in nonapproved private schools. It cannot be used to argue that IEP teams may place students in nonapproved private schools.)

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