Due Process Procedural Safeguards

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IDEA stresses the fundamental importance of the role of educational administrators as well as parents in the matter of each individual students academic performance. IDEA outlines the necessary actions for a school district to implement an individual educational program, also known as an IEP. The first step each district must follow is to inform the parents of the student in question. "IDEA sets forth requirements for States and local educational agencies (school districts) in providing special education and related services to children with disabilities, ages 3 through 21 (US Dept. of Educ., 2010, para.1). The district must also provide a "prior written notice" to the parents. At specified times, the school district must provide parents with a "procedural safeguards notice" which explains their rights under Part B of the IDEA. Prior to July 1, 2005 state and federal regulations required school districts to provide the parent with a copy of procedural safeguards upon each notification of an Individualized Education Program (IEP) meeting (US Dept. of Educ., 2010, para.1).

The typical state regulation used today "school districts only require the provision of procedural safeguards statement to be given to the parent one time per school year, during initial referral for evaluation for students, also on the date to make any changes to the students IEP, as well as a parental request for any additional copies, and furthermore upon the first occurrence of the filing of a due process hearing request or child complaint is another time a parent will receive the safeguard statement" (DESE, 2010, part B para. 2).

Under 34 CFR 300.503(c), each individual school district must give parents a written in the native language of the parent and dated when any chances are made in the education of the student. Under 34 CFR 300.503 (a) the school district must notify parents if a student is refused any educational services pending evaluation results. Taylor, S (2005). Basically after eligibility is determined, parents are notified, and if in agreement, the IEP for the student will be developed and implemented. However concerns arise with parents and educators of what is deemed appropriate for the individual student.


Typically a complaint made by either a parent or school administrator deems a need for a due process hearing. Each party will present their evidence with an ample amount of factual information to reach a conclusion of action. Parents and educators will explain their grievances in an appropriate manner. Parents and educators will routinely refer back to the students IEP. If plaintiff makes a complaint that is not part of the students IEP, typically the result will not be favorable for that particular party. Each party needs to have evidence to support their argument. The goal is to convince the judge to make a decision in favor of the evidence provided. The complaint must be caused by the school's actions, or lack of action, pertaining to the students educational welfare, and/or if the student is not receiving educational benefit that is stated in IEP and without corrective measures, the student's education will be harmed.

Each school district must take appropriate measures, including the provision of supplementary aids and services determined appropriate and necessary by the child's IEP Team, to provide children with disabilities an equal opportunity for participation in education.

Section 300.308 requires that the IEP teams determining the eligibility for children suspected of having a learning disability are to include: the child's parents; a team of qualified professionals including the child's regular education teacher; at least one person qualified to conduct individual diagnostic examination of children, e.g. a school psychologist or reading specialist. Section 300.309(a) a team can find that a child has a learning disability if the child doesn't achieve adequately for the child's age or doesn't meet grade-level standards.


When dispute resolution, mediation have not helped a due process hearing is the next step to make a more definite plan of action pertaining to a students educational needs. What is due process? A due process hearing is usually an official, trial between parents and school districts. Each party will be represented by their own chosen council.

According to William B. nor shall any State deprive any person of life, liberty, or property, without due process of law.

Typically a parent or school official will bring a compliant to either party. The compliant will include a description of the issue and possible remedies to the problem or change.

Then the next step is a response, that is necessary within 10 days of receipt of a due process request; the non-complaining party (school or parent) must send a written response to the complaining party. Within 15 days, the hearing officer and the other parties must be notified in writing if the hearing notice is thought to be insufficient. The hearing officer has 5 days to determine the importance of the notice. Parents and members of the IEP team meet to discuss and to try and resolve the complaints. Typically a hearing would be held within 15 days of receipt of request for hearing unless both parties: agree to go to mediation or agree in writing to waive the hearing.

In a Due Process Hearing, the Judge will make a decision based on testimony and facts submitted to the court on a determination of whether the student received a (FAPE) free and appropriate public education and/or whether a procedural violation occurred. Either party has the right to appeal the judge's decision to federal or state court, or as far as the Supreme Court. The Due Process hearing can be financially costly for all parties. The decision to request a Due Process Hearing requires thoughtful consideration and should be contemplated only after all other options have been exhausted.

In the end a judgment is made and will require one party to provide a service or pay a sum of money to the other party. Sometimes the losing party feels victimized by the Court and refuses to pay or continue with the judgment made by the court. These actions typically lead to more conflict. An


example of would be after the U. S. Supreme Court case of Brown v. Board of Education, some Virginia school boards closed their schools. These school boards used massive resistance to avoid complying with the decision.

According to Brown v. Board of Education, 347 U.S. 483 (1954 ) "Resistance also slowed implementation of the Brown decision in schools and led to many additional court cases. For example, Prince Edward County, Virginia, closed all of its public schools-for whites as well as blacks-rather than integrate.

The most influential case I researched was TINKER v. DES MOINES SCHOOL DIST., 393 U.S. 503 (1969). This case focused on student wearing armbands in protest of the Vietnam War.

Petitioners, three public school pupils in Des Moines, Iowa, were suspended from school for wearing black armbands to protest the Government's policy in Vietnam. They sought nominal damages and an injunction against a regulation that the respondents had promulgated banning the wearing of armbands.

However due to the insistence of students following in the political social propaganda as their parents a selection of students meet and decided to make a stand by wearing armbands to school as a form of protest of the war. When word of this new sense of an anti-war message reached the school officials,

"principals of the Des Moines schools on December 14, 1965, the school adopted a policy that any student wearing an armband to school would be asked to remove it, and if he refused he would be suspended until he returned without the armband.

The students were aware of the new school policy, yet ignored the warning.

It upheld [393 U.S. 503, 505] the constitutionality of the school authorities' action on the ground that it was reasonable in order to prevent disturbance of school discipline. 258 F. Supp. 971 (1966).


According to TINKER v. DES MOINES SCHOOL DIST., 393 U.S. 503 (1969) The District Court dismissed the complaint on the ground that the regulation was within the Board's power, despite the absence of any finding of substantial interference with the conduct of school activities. The District Court recognized that the wearing of an armband for the purpose of expressing certain views is the type of symbolic act within the Free Speech Clause of the First Amendment. The conclusion of the school authorities was reasonable because it was based upon their fear of a disturbance from the wearing of the armbands.

Another interesting point made by TINKER v. DES MOINES SCHOOL DIST., 393 U.S. 503 (1969)

"Their deviation consisted only in wearing on their sleeve a band of black cloth, not more than two inches wide. They wore it to exhibit their disapproval of the Vietnam hostilities and their advocacy of a truce, to make their views known, and, by their example, to influence others to adopt them. They neither interrupted school activities nor sought to intrude in the school affairs or the lives of others. They caused discussion outside of the classrooms, but no interference with work and no disorder. In the circumstances, our Constitution does not permit officials of the State to deny their form of expression."

In the end, the case was to be a "matter for the lower courts to determine" The case was reversed and remanded. TINKER v. DES MOINES SCHOOL DIST., 393 U.S. 503 (1969). What is interesting is that only 7 students of 18,000 disobeyed the new policy regarding the armbands. Five students being from the Tinker family ages 8-15.

Another case that demonstrates the use of due process in education is,

"West Virginia v. Barnette, supra, this Court held that under the First Amendment, the student in public school may not be compelled to salute the flag. Our problem lies in the area where students in the exercise of First Amendment rights collide with the rules of the school authorities."


Another controversy is the cost of the due process hearing. Parents and School Districts have to use the family savings and or the school budget for attorney fees, court cost, and implementation of either transportation for students, new programs and or supplementary aids and teaching resources for teachers. Parents worry about the training and experience of the teachers who are educating their children. This is a crucial obstacle of trust and communication that can be lacking from both parties.

Assessment is vital in the early education of all students. The earlier any intervention can be performed the better a student will be to achieve the satisfactory setting with peers. The steps involved include making sure the student is eligible for services, determine what the student needs to be evaluated on, determine what assessment is best for the student, observe the student, evaluate and interpret the findings, and then create a curriculum that fits the students learning abilities best.

Possible questions to remind an educator during assessment and observation is: Does the child have a need/deficiency in the skill or ability? Does the child have a beginning level of skill or ability? Or does the child have a mastery level of skill or ability?