by Amanda Glass, Equal Justice Works Fellow

After trying unsuccessfully to resolve your dispute with the school through informal resolution methods, you consulted with a special education lawyer and decided that a due process hearing is the best option left to you. You spent time preparing for the hearing, gathering all of your evidence, preparing your witnesses, and drafting an opening statement and closing argument. You filed your due process complaint, engaged in a resolution session, and still could not resolve your dispute. After participating in the pre-hearing conference, you went to your due process hearing. All the evidence has been presented and arguments have been made—now what?

Administrative Law Judge (ALJ) Issues a Written Decision

After the due process hearing is finished, the ALJ must consider all evidence and testimony and make a determination about each of the issues presented in the due process complaint. The ALJ will put her conclusions of law and fact in a written decision and must mail a copy of the decision to each of the parties.

How Long Should It Take to Get a Decision?

A final hearing decision must be made no more than 45 calendar days after the resolution period ends. This means that from the time the due process complaint is filed until a decision is made should be no more than 75 days, although the ALJ may grant extensions of time at the request of either party, and timelines may be affected by things like the filing of an amended complaint.

What Types of Relief Might an ALJ Order in her Decision?

According to the Individuals with Disabilities Education Act (IDEA), a judicial officer can order “the relief that the court determines to be appropriate.” The ALJ’s authority to order relief has been interpreted as being the same as a state or federal judge’s authority to do so.[1]

For more information on what types of relief are generally ordered, check out our blog post on remedies, which will be posted next week.

Are Due Process Hearing Decisions Final?

A decision made in a due process hearing is final, except that either party can appeal the decision by bringing a civil action in state or federal court.

An appeal from a due process hearing decision must be filed within 35 days of the ALJ’s decision. The appealing party should alert the Office of Administrative Hearings (OAH), and the OAH will provide a record of the due process hearing to the court trying the appeal. After considering any additional evidence and the arguments of the parties, the federal or state judge will make a decision and grant whatever relief the judge feels is appropriate.

You can read more about how to file a civil lawsuit contesting an ALJ’s decision on the Center for Parent Information and Resources website.

Can I Skip the Due Process Hearing and Just File a Lawsuit in Court?

No! In order to file a lawsuit in state or federal court claiming a violation of the Individuals with Disabilities Education Act (IDEA), a party must have already gone through due process. If a case is filed in court and there is no due process hearing decision, the court will dismiss the case for “failure to exhaust all administrative remedies.” This means that a party must try to get a resolution through an administrative remedy (due process through the Office of Administrative Hearings) before going to state or federal court. This requirement is written into the IDEA.

Some disability-related claims may arise under laws other than IDEA, such as Section 504 of the Rehabilitation Act and the Americans with Disabilities Act. Generally, claims under these other laws that are not related to the IDEA’s Free and Appropriate Public Education (FAPE) requirement do not require you to exhaust administrative remedies before filing in state or federal court. However, if the claim is related to FAPE, you are likely to be required to exhaust, even if you don’t specifically bring up IDEA. This is a complex legal area to navigate, so we recommend consulting a special education attorney if you are not sure if you need to exhaust administrative remedies before filing a lawsuit in state or federal court.

We have now provided information about dispute resolution options available for violations of IDEA. However, there is another federal law related to the educational rights of students with disabilities—Section 504 of the Rehabilitation Act (Section 504). When a parent believes a school has violated Section 504, there are different dispute resolution options available. Tomorrow, we will discuss what Section 504 is, what a violation might look like, and what complaint options are available to parents of students with disabilities under that law.

Tomorrow’s Tip-of-the-Day: Section 504 (Part 1): Overview

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[1] Forest Grove Sch. Dist. v. T.A., 129 S. Ct. 2484, 2494 n. 11 (2009).