What happens if you disagree with a decision that your child’s public school has made regarding how, when, what kinds of, or even if they will receive special education services?
It’s called a due process hearing, and it’s a formal legal proceeding conducted by an impartial administrative law judge.
All parents and school districts have a right to request a due process hearing to resolve issues around the identification, evaluation, reevaluation, classification, educational placement, disciplinary action, or provision of free appropriate public education for a student with a disability. At the hearing, the sides lay out their cases before an impartial judge.
Proof requirements disadvantage families
Currently, in Washington state, the burden of proof falls to parents and guardians to prove that a district’s decision was wrong — for example, that their child does, indeed, need services the district has declined to provide. Under this scenario, the district is not required to defend its decision.
Therein lies a big problem when it comes to fairness and equity. Proving the facts in a due process hearing can be an expensive and time-consuming process for families. It may include hiring lawyers or experts in order to make the strongest case for decision reversal. Parents and guardians without a lot of resources face a great disadvantage when it comes to advocating for their children and ensuring they receive the services they need to thrive.
Further, caregivers who don’t speak or read English or who face other communication barriers may be even further disadvantaged by the parental burden of proof rule.
“Often, there is inequity in Washington state when families have to advocate for their children to receive special education services,” says Arik Korman, Interim Co-CEO at Seattle-based League of Education Voters (LEV) “Most families do not have access to legal teams and support staff, unlike many school districts. By shifting the burden of proof to school districts in special education due process hearings, the playing field will be more level for families.
“For the student, it jeopardizes an important accountability check,” Korman adds. “If their Individualized Education Program (IEP) isn’t right – or if they were incorrectly denied one – they can’t access education. Due process helps ensure the process works for kids.”
Bill would reverse the proof burden
A proposed law now moving through the Washington State Legislature would reverse the burden of proof rules, placing the burden of proof on districts.
If Senate Bill 5883 (SB 5883) becomes law by the time the 2024 legislative ends in early March, districts would have to defend their decsions with clear reasoning and high-quality data — a preponderance of evidence — before the judge.
The only exception would be parents or guardians asking for tuition reimbursement for a private school they have chosen for their child. In these cases, the burden of proof stays with parents. They would have to prove with clear evidence that moving the child to the new school was appropriate.
Free webinar about due process hearings
This week, the League of Education Voters hosted a free webinar on the topic — “Ensuring Fair Due Process in Special Education.” Panelists in the hour-long lunchtime discussion lay out their arguments for SB 5338 and why switching the burden of proof to school districts protects children with disabilities. Panelists for the discussion include:
- Washington State Senator Yasmin Trudeau (D-Tacoma)
- Kathy George, partner at Johnston George LLP, a Northwest law Firm
- Karen Pillar, Director of Policy and Advocacy at TeamChild
- Andrea Kadlec, Attorney at Disability Rights Washington
Live Spanish and ASL interpretation and closed captioning in English are provided. A recording of the LEV learning session is now available online.