Due Process: Do’s and Don’ts of Special Education Litigation

Due process litigation under the Individuals with Disabilities Education Act (IDEA) has significantly increased in Michigan over the past three years. Though receiving a due process complaint is unpleasant, knowing the right steps to take will position your school for the best possible resolution. Summarized below are important steps school officials should take upon receiving a complaint.

• Promptly notify your insurance carrier.
  Coverage for litigation costs does not begin until the carrier is notified and accepts the claim. You may request that the carrier assign the case to a particular attorney or a law firm; assignment of your preferred counsel is not guaranteed.
• Promptly notify your attorney.
  Regardless of whether you have been consulting with an attorney on the specific case, contact the special education attorney with whom you usually work and forward the complaint to that attorney as soon as possible.
• Retain all documentation related to the student.
  Called a “litigation hold,” courts expect a school to preserve all information (including emails, texts, and electronic records) that could be relevant to the complaint. Send an email to employees who may possess records directing them to gather all documentation related to the student and to forward it to the appropriate special education administrator. Employees who may have relevant documentation include, but are not limited to, the student’s teachers, related service providers, counselors, school nurses, and administrators for the previous two years.
• Gather emails and other communications related to the student.
  The school’s attorney and/or the parent will likely request emails and other communications to use as evidence during the due process hearing. The best way to ensure that all relevant emails are identified is to have the school’s technology department run a server search for all emails that contain the student’s name so that an email is not missed.
• Do not withhold any documentation from your attorney.
  Allow your attorney to determine whether a document is relevant to the case. There are few worse moments in a due process hearing than when a parent testifies about a document that the school had but withheld from the school’s attorney. The school’s attorney will need the student’s entire CA-60 file, the special education file, all discipline records (including referrals that did not result in discipline), any documents held by individual teachers or other employees, any emails requested, and any other documents relating to the student that may exist.
• Calendar deadlines.
  Soon after receiving the due process complaint, the school will receive a packet of documents from the Michigan Office of Administrative Hearings and Rules (MOAHR). That packet will include an order from the assigned judge scheduling a pre-hearing conference that the school and its attorney must attend. Additionally, school officials should note on their calendars the date by which a resolution session must be held or waived, which is within 15 days of receiving the due process complaint or within seven days for an expedited complaint.
• Do not sign a resolution or mediation agreement if it does not obligate the parent to dismiss the due process complaint.
  If the school has agreed to give the parent something in exchange for the parent dismissing the complaint, the written agreement must state that. If it does not, the school is obligated to provide what it offered, and the parent is not obligated to withdraw the complaint. Have the school’s attorney review any settlement document before signing by a school official, even if the attorney has not participated in the settlement discussions.

Although due process litigation may be daunting, it can serve as a learning tool. School officials and staff may learn strategies to avoid a complaint in the future or how to dispense with a complaint as quickly as possible once they have experienced the process.

If your school receives a special education due process complaint or you would like more information or training on the IDEA’s dispute resolution processes, contact a Thrun special education attorney.