What is Special Education Law?

By Dorene Philpot, J.D

January, 2009

Parents often lack information about their child’s rights in terms of the education and services offered by the public schools. Parents are often intimidated by the number and demeanor of the school staff during meetings and feel that they have little input into their child’s Individualized Education Program (IEP). This lack of knowledge can have a serious impact on the progress a child is able to make in school.

Federal and state laws govern the creation of an individualized education program for a child in the public schools. The IEP must be based on the child’s specific needs (not on the school’s staffing or budget problems), and the program must be reasonably calculated to confer meaningful educational benefit. Anything less than that does not comply with the law and is actionable through a due process administrative proceeding. This proceeding is conducted like a trial, with both parties presenting evidence to a hearing officer who acts as both judge and jury.

A child’s right to due process can be violated in procedural and/or substantive ways. Procedural due process violations result from failing to follow the procedures specified under the law. Substantive due process violations result from failing to grant to the child what the law guarantees, such as a free appropriate public education. Additional examples of how schools commit procedural and substantive violations of the law include the failure to do the following:

  • Devise an appropriate IEP based on the child's individual needs.

  • Implement the IEP as written.

  • Allow the parents to meaningfully participate in the IEP development process.

  • Have the proper personnel present during the case conference committee meetings. (At a minimum, these meetings should include the child’s special education teacher, parent(s), an administrator who can make decisions about allocation of resources, and a regular education teacher if the child will be participating in general education activities or services. Also, if a school evaluation is being discussed for the first time, the evaluator or someone in his/her stead must appear to answer parent questions about the assessment.)

  • Give notice of rights and planned meetings.

  • Prevent punishment of the child for actions or inactions caused by the child's disability.

  • Train staff and aides in the child's areas of disability.

  • Train parents in the child's areas of disability.

  • Maintain proper records.

  • Determine placement and services after the IEP, using input from the meeting. 

  • Conduct necessary evaluations of the child.

  • Provide education and services in the least restrictive environment, based on the child's individual needs.

  • Offer extended school-year services to the child, resulting in regression of skills during the summer vacation that cannot be recou ped quickly.

  • Convene a case conference committee meeting.

  • Identify the child as one in need of special education or services, despite evidence that the child is struggling academically or behaviorally.

  • Provide records either within 45 days or prior to a due process hearing when requested by parents.

  • Allow the special needs child to participate in activities to the same extent as his non-disabled peers when the child could participate with accommodations provided by the school. (This would apply to sports, extracurriculars, gifted and talented programs, field trips, etc.)

When violations such as these occur, and parents are unable to reach agreement with the school on how to remedy the situation, the parents have the right to take the matter to court. The court proceeding is referred to as a due process hearing. A favorable outcome for parents forces a school to comply with the federal and state protections afforded children with special needs.

The Due Process Hearing

Here are the events that make up a due process hearing.

  1. A request for a due process hearing is submitted to:
  • The state's education agency
  • The school 
  • The cooperative or interlocal. (These are most often found in smaller school districts and rural areas where schools form a pool or group in order to provide better resources to the special needs children in the general geographic area.)

The request describes what the issues of contention are and what the proposed resolutions are, to the extent known by the parents.

(Note: An attorney is not required to file a due process hearing request. A parent can file the request on his/her own. All states are required to devise and make available, usually through a website, a simple form that can be used to request a due process hearing. Parents can use the state’s form, or they can submit the request in the form of a letter or in the form of a formal complaint-style pleading.)

  1. The state education agency assigns an independent hearing officer (IHO) to the case. The officer is selected from a rotating list.
  2. The IHO contacts the school and the parents’ attorney to set up a time for a prehearing conference, a telephone conference to address all of the details of making the due process hearing happen. At this point, the parties are not arguing the merits of their cases, and the hearing officer is not making any decisions about the outcome, although he/she might form general impressions of the parties.
  3. Both parties (the school and parents) prepare their case for the due process hearing. (In my practice, I give parents “homework assignments” to help me prepare their case for hearing. The assignments are useful to me and also help to keep parents’ legal fees lower. Before the hearing, I share my due process trial plan with the parents to give them a roadmap of where we’re going and how the hearing will be conducted. We generally meet the night before the case begins to go over any last-minute questions.)
  4. Sometimes the parties can avoid a hearing, resolving the case through mediation. The school or state must pay the cost of the mediation, and generally the parties attend without their attorneys, who are on call via phone for questions. (I highly encourage my clients to make an attempt at mediation if they believe there’s a chance of resolution with the school.)
  5. According to law (IDEA 2004), a resolution session must take place within 15 days of the hearing request unless both parties agree to waive it. Attorneys are discouraged from attending the resolution session and may only come if both sides are bringing an attorney.
  6. The due process hearing is conducted according to the plan devised at the prehearing conference.
  7. Each party presents its opening statement, with the party requesting the hearing going first. Then each side has its witnesses speak. To conclude the hearing, each party presents one of the following: verbal closing arguments, written closing arguments, or closing briefs. 
  8. At the end of the hearing, the IHO states when the decision will be made and mailed to the attorneys for both sides. Each party has a choice of receiving an electronic or printed-out copy of the transcript. (Electronic versions are easier to use, copy, and e-mail to others. However, if you decide you want a printed version later, you are faced with printing out what can be more than a thousand pages of transcript.)
  9. Each party has a right to appeal the decision of the IHO. In some states the appeal is heard by the Board of Special Education Appeals, referred to as a “second tier.” In most states, there is no second tier, and the party who is appealing can go directly to state or federal court after the hearing officer renders his/her decision. Check with your state’s Department of Education to learn whether your state is a one- or two-tier state.

The appeal will not be successful if the basic argument is “We disagree with the hearing officer.” Typically, a successful appeal must show that the hearing officer’s decision was one of the following:  

  • Arbitrary and capricious
  • An abuse of discretion  
  • Contrary to law or contrary to a constitutional right, power, privilege or immunity
  • In excess of the jurisdiction of the independent hearing officer
  • Reached in violation of an established procedure
  • Unsupported by substantial evidence.
  1. If parents in a two-tier state are unhappy with the outcome of the appeal with the board, they can appeal again, this time to either a federal or state court. As before, the reason for the appeal cannot be that you want to reargue the case or say merely that you disagree with the decision. It must be because of some violation made by the board in a two-tier system or by the hearing officer in a one-tier system in rendering the decision.
  2. In some situations it may be necessary to file a suit for fees in either a local or federal court. A suit for fees is needed when there is no appeal and no agreement from the school on the payment of prevailing parents’ attorney fees. To be successful, the parents’ attorney must show that the parents prevailed on some substantial issue and that the hourly rate and hours expended on the case were reasonable. (In my experience, I have not yet had anyone argue that the hourly rate or hours expended were unreasonable. Usually the argument is: Did we prevail on a substantial issue? Our definition of “substantial” can vary from the school’s definition. Then the court decides.)


Dorene J. Philpot, of Philpot Law Office LLC, is an attorney who represents children with special needs and their parents in Indiana and Texas. She is a frequent speaker for parent advocacy organizations and disability advocacy organizations on the rights of children with disabilities. Her website, dphilpotlaw.com, has free educational resources for parents. 

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