Very often, I am asked by prospective and current clients in my Connecticut special education law practice whether or not they should bring a Due Process Hearing on behalf of their child with disabilities. This is a very tough question, and really can not be answered in a general way, since each case is as different as each child. In addition, the likelihood of prevailing in a special education Due Process Hearing does vary dramatically from State to State.
What most parents who ask me this question really want to know is: “am I going to win?”
There is no way of knowing from the outset what your chances of “winning” your case are if you decide to proceed with a Due Process Hearing. However, it is important to consider what “winning” means to you. To me, obtaining as much of what you are looking to get for your child with as little risk and expense as possible is a successful outcome to a case.
Sometimes, “winning” also means compromising on some things now to secure an appropriate educational program for your child for the future.
Each case varies. Sadly, however, in general school districts win Due Process Hearings far more than parents do. Consider this article in the Wall Street Journal comparing statistics in different States http://online.wsj.com/article/SB118524665215575918.html (although I caution readers that many of us in the special education advocacy community question some of the statistics maintained by State Departments of Education, and further note that what is not reflected in such numbers are the thousands of cases which resolve amicably in the parents’ favor prior to a Due Process Hearing). Parents who are represented by good, experienced counsel are generally more successful than those that proceed without counsel.
However, proceeding with litigation is risky and expensive, and it is therefore always my goal to try to resolve a special education case amicably and short of a Due Process Hearing.
That being said, sometimes in order to obtain some or all of the services we want, we will have to file for a Due Process Hearing, even if we do not actually proceed with testimony and other evidence. There are some districts who will not even negotiate in good faith with a family unless a Due Process Hearing has been filed. This is unfortunate, because it means both sides increase the costs associated with settlement, as often attorneys’ fees are now significant considerations. Yet, with the pressure of a Hearing pending, sometimes school districts realize their legal exposure and go ahead with a reasonable offer of settlement in order to avoid the risks of litigation.
Keep in mind, though: sometimes an excellent case turns into a huge risk, or a mediocre case becomes excellent, based on one change in events.
Once the Hearing is filed, though, both sides’ estimation of the likelihood of success may be wrong. Witnesses may or may not be willing to testify, or you could find out that if they do, their testimony will not help you. Or, the results of standardized testing may come out during the course of the Hearing which either support the claim that the IEP was inappropriate, or shows just the opposite. Kids are incredibly unpredictable, and I have had more than a few unforeseen circumstances occur right in the middle of a Due Process Hearing that have dramatically altered the final results. And, of course, I am not even going through the many ways in which your choice of counsel, the Board’s attorney, and the Hearing Officer assigned to the case can factor in to how a Hearing is likely to go.
Ultimately, litigating a Due Process Hearing is a big risk, but sometimes it is a risk well worth taking.
My goal is always to do whatever I can to avoid Due Process on behalf of my clients. If I have to litigate a Hearing, though, I want parents to do so only when it is absolutely necessary. If a parent is going to “roll the dice” on a special education Due Process Hearing, I have to feel that they have exhausted all other reasonable avenues of resolution.
However, if we have given the district every possible chance to “do the right thing,” and they continue to resist, then sometimes litigating a Due Process Hearing is not only important, but essential.
Despite my strong, and sometimes harsh words, I happen to believe that the vast majority of educators out there really care about children. Plainly put, though, there are some really lawless school districts out there when it comes to the IDEA. Some special education administrators either don’t know or don’t care about their legal obligations to children with disabilities. When you come across such a person, you might not have any choice but to litigate for them to “get it.”
Most of the important changes in special education services in this country have occurred because parent was brave enough to fight their school district in Due Process, and sometimes beyond.
If you have attempted formal and information resolution of your special education case and such attempts have been unsuccessful; and you are confident that your case is strong; and you are not the only person who believes you have a good case; and you have been given good counsel by someone in your state who understands your likelihood of success; AND you feel you have no other alternative but to file, then by all means I recommend filing for a Due Process Hearing.
But be sure you’re in it for the “long haul.”
Many cases which are litigated on behalf of children with special education needs ultimately prevail, but many only after a great deal of perseverance and patience on behalf of the family. It can sometimes take years of litigation to prevail in a special education case, during which time you are likely to incur significant costs in obtaining educational and legal services, time away from work, and overwhelming stress, anxiety and even anger as you go through the process. Special education litigation is not for the faint of heart.
But when you do find justice, you have the comfort of knowing that not only have you resolved your own child’s case, but you just might have helped other children with special education needs as well by creating important precedent. As with all things in life, with great risk comes great reward.