Step 1 – Understand Your Case

What Is Your Case About?

First, you need to understand the cause of your dispute with the school district. The following are typical examples of disputes between schools and parents of children with disabilities. You will need this to describe the problem in your due process complaint.

Free Appropriate Public Education (“FAPE”)

You believe the school is not providing an appropriate education for your child given his/her disabilities and learning difficulties. Every state that accepts federal funds for special education must ensure that a “free appropriate public education is available to all children with disabilities residing in the State between the ages of 3 and 21, inclusive, including children with disabilities who have been suspended or expelled from school.” 20 U.S.C. 1412(a)(1)(A). A FAPE means at no charge to the parents/family of the child with a disability; meets state standards for education; includes appropriate preschool, primary and secondary programs; and conforms to the child’s Individualized Education Program (“IEP”). 20 U.S.C. 1401(9). The U.S. Supreme Court said the standard for FAPE requires an IEP to be “appropriately ambitious in light of the child’s circumstances [disabilities]” and much more than the minimum.  Endrew F v. Douglas County School Dist. RE-1, 137 S. Ct. 988, 1000, 580 US __, 197 L. Ed. 2d 335 (2017).

Eligibility / Child Find

The school says your child is not eligible for special education and related services. The State and school district have a legal obligation to identify, locate, test (evaluate), and create a special education program in place for every child with a disability in their area. 20 U.S.C. 1412(a)(3) and 1413(a)(1). A “child with a disability” is one whose diagnosis falls within one (or more) of 10 categories of disability and who, because of such disability, needs special education and related services. 20 U.S.C. 1401(3).

Evaluations / Testing

You believe the school hasn’t properly tested your child to see how the disability currently affects his/her learning. Using “technically sound instruments” and “a variety of assessment tools and strategies”, your child’s school must perform a comprehensive evaluation to determine how your child’s disability affects his/her performance in the classroom. 20 U.S.C. 1414(a), (b), and (c). Once deemed eligible, your child must be comprehensively re-tested “at least once every 3 years” but “not more frequently than once a year.” 20 U.S.C. 1414(a)(2)(B).

Individualized Education Program (“IEP”)

You believe that the services listed in the IEP are inadequate or inappropriate for your child or that the school is not following the IEP. In written document form, an IEP must contain:

  • “a statement of the child’s present levels of academic achievement and functional performance” (PLAAFP), which is how your child’s challenges are currently affecting his/her performance in the learning environment
  • “a statement of measurable annual goals, including academic and functional goals” to meet his/her needs
  • how your child’s progress towards those goals will be measured and when periodic progress reports will be issued
  • the special education and related services and supplementary aids and services that will be provided to your child, including modifications and supports during the school day
  • how much time each school day your child will spend outside the regular classroom
  • whether your child will participate in statewide standardized testing
  • the start and end date of the IEP
  • transition services (beginning no later than age 16) for when your child is preparing to graduate or turn 21
  • consent form for parents to either accept or reject the proposed IEP.

20 U.S.C. 1414(d)(1)(A). The IEP must be developed by an IEP Team that includes at a minimum:

  • “the parents of a child with a disability”;
  • “not less than 1 regular education teacher of such child”;
  • “not less than 1 special education teacher” or provider of such child;
  • a school district representative who is qualified to provide, or supervise special education and services; and
  • an individual who can interpret the instructional implications of testing (which can be one of the other members already listed).

20 U.S.C. 1414(d)(1)(B). It may also include “other individuals who have knowledge or special expertise regarding the child, including related services personnel as appropriate” and when appropriate, your child. 20 U.S.C. 1414(d)(1)(B).

The IEP must be in effect before the start of the new school year. 20 U.S.C. 1414(d)(2)(A).

Educational Placement and Stay Put

You believe that your child’s learning environment is not in compliance with the Least Restrictive Environment (“LRE”) requirement. “To the maximum extent appropriate, children with disabilities, including children in public or private institutions or other care facilities, are educated with children who are not disabled,” and any exclusion from the regular education classroom “occurs only when the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.” 20 U.S.C. 1412(a)(5).

Or you allege that the school has made a placement decision without your input. Parents must always be involved in deciding the educational placement of their child. 20 U.S.C. 1414(e).

After you have filed a due process complaint and your child has an IEP, neither the State nor the school district may change your child’s placement or IEP during those proceedings. 20 U.S.C. 1415(j). This is known as ‘Stay Put’, but is often violated by schools.

Prior Written Notice (“PWN”)

Whenever your child’s school district “proposes to initiate or change or refuses to initiate or change the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to the child,” it must provide a written notice to you, the parents. 20 U.S.C. 1415(b)(3). This is called a “Prior Written Notice” and must contain the following:

  • a description of the action proposed or refused by the agency;
  • an explanation of why the agency proposes or refuses to take the action and a description of each evaluation procedure, assessment, record, or report the agency used as a basis for the proposed or refused action;
  • a statement that the parents of a child with a disability have protection under the procedural safeguards . . . ;
  • sources for parents to contact to obtain assistance in understanding the provisions of this section;
  • a description of other options considered by the IEP Team and the reason why those options were rejected; and
  • a description of the factors that are relevant to the agency’s proposal or refusal.

20 U.S.C. 1415(c)(1).

There are more specifics in each of the listed issues plus other issues not listed here, so you should consider consulting with an advocate or lawyer if you need more information. Once you can describe why you disagree with your school about your child’s education, go to . . .