Due Process

When disagreements arise between Parents and Districts over the identification, evaluation, educational placement, or other provisions applicable to the provision of a Free Appropriate Public Education (FAPE), the Individuals with Disabilities Education Act (IDEA) and Section 504 provide a formal process for resolution, known as Due Process proceedings.

What is a Due Process Complaint?

Under 20 U.S.C. § 1415(b)(6) and 8 NYCRR § 200.5(i), a Parent or District may file a due process complaint when a dispute occurs regarding the educational rights of a student with a disability. These complaints are heard by an Impartial Hearing Officer (“IHO”) in a legally binding administrative proceeding.

What Issues Can Be Addressed Through Due Process?

There are many issues and concerns which can be brought under an Impartial Due Process Hearing, both procedurally and substantively. Many of these issues are those explained and identified in our Areas of Sped Assistance Page(s), but also are not included. Some of these issues, but most certainly not all can include:

  • Failure to Identify or Evaluate a Student Suspected of a Disability (Child Find);

  • Inappropriate or Inadequate IEP Development and/or Implementation;

  • Improper Placement or Services under Least Restrictive Environment Standards (“LRE”);

  • Denial of Procedural Safeguards or Parental Participation;

  • Retaliation or Disciplinary Actions in Violation of IDEA Protections;

  • Extended Delays in Evaluations or Service Provision;

  • Failure to Provide Services or Accommodations as Listed in an IEP or 504 Plan;

  • Failure to Implement Pendency;

  • Failure to Comprehensively Evaluate a Student with an IEP;

  • And Many More…

What Are the Steps in a Due Process Proceeding / Hearing?

1. Filing a Due Process Complaint

  • The Due Process Hearing Complaint must allege a violation occurring within two years of the date the Parent knew or should have known of the issues alleged in the complaint;

  • The complaint must also include specific information pursuant to 34 C.F.R. Part 300 & 8 NYCRR Part 200.

  • The complaint must be signed and delivered to the District, and can be either completed on an individual form, or a “DIY” form as produced by the New York State Department of Education on their website here — “Complaint Form”

2. Resolution Meeting or Mediation

  • Within 15 days of receiving the complaint, the District must convene a resolution meeting, unless both parties waive it or choose mediation instead.

  • After 30 days, the resolution window closes, and the matter proceeds to the scheduling of hearing dates with an IHO.

3. Impartial Hearing

  • If the matter is unresolved through resolution and the waiting period, the case proceeds to a formal hearing before an IHO.

  • Both parties may present their case, present evidence, examine witnesses under oath, and submit documentary evidence.

  • The IHO retains authority over all procedural and evidentiary matters during the hearing.

4. Finding of Fact & Decision

  • The IHO will at the conclusion of the hearing, either hear closing arguments, or what is more typically performed is a closing brief or memorandum of law, not exceeding 35 pages pursuant to 8 NYCRR Part 200.

  • The IHO will then issue a written decision outlining findings of fact and determining whether the District met its burden to provide the Student with a FAPE in the LRE.

5. Appeal to SRO (If Sought)

  • The IHO’s decision is then binding unless appealed by either party.

  • A Notice of Intention to Seek Review must be filed within 25 calendar days after the date of the decision of the impartial hearing officer requesting to be reviewed, and must be hand-delivered to the opposing party, such as the School District Clerk, any trustee or member of the Board of Education, the Superintendent of Schools, or a person in the superintendent’s office who has been designated by the Board to Accept service.

  • A Notice of Intention to Seek Review must also be filed with the Office of State Review with other accompanying information. Additionally, the Request for Review to the Office of State Review (“OSR”) must be made within 40 days of the decision, and a State Review Officer will issue a written decision within 30 calendar days.

  • See the NYSED Office of State Review page for more information on — “Filing a Request for Review”

What Relief Can Be Granted?

An IHO may award:

  • Compensatory Education;

  • Reimbursement for Private Services or Placement;

  • Corrective Action or Service Implementation;

  • Declaratory Findings of Violations or Procedural Noncompliance;

  • Prospective Modifications to the IEP or Placement; and

  • Any Other Relief the IHO Deems Just and Proper.

If you believe your child's educational rights have been violated, or if you're unsure whether a due process application is right for your situation, contact us at WNYFACES today. Our experienced advocates can guide you through every stage of this complex process.

Equal Protection

While IDEA and Section 504 provide procedural rights and educational guarantees, families may also pursue Equal Protection claims when a District engages in discrimination, disparate treatment, or arbitrary denial of services that affects students with disabilities in comparison to their peers.

What is an Equal Protection Violation?

Under the Fourteenth Amendment of the United States Constitution, students with disabilities are entitled to the equal protection of its laws. Equal protection claims often arise when students are:

  • Treated differently from similarly situated peers without a rational basis;

  • Denied services or benefits based on their disability or classification;

  • Subjected to more severe discipline or exclusion due to disability;

  • Targeted by policies that disproportionately impact students with disabilities;

  • And more…

These actions may violate both constitutional rights along with federal and state disability laws such as Section 504 and the Americans with Disabilities Act (“ADA”).

What Are Common Examples?

  • A district consistently refuses services to students classified under a specific disability category, like Autism;

  • A district routinely punishes students with disabilities more harshly than non-disabled peers for the same behavior;

  • A district implements policies or practices which systemically exclude or segregate students with disabilities;

  • A failure to respond to bullying or harassment of a student with a disability while protecting other students.

How Are Equal Protection and Constitutional Claims Brought?

These claims may be:

  • Raised in federal Court as a 42 U.S.C. § 1983 Civil Rights Action;

  • Incorporated as part of a broader Office of Civil Rights (“OCR”) Complaint or federal agency investigation;

  • Included in an IDEA or Section 504 due process proceeding.

Successful claims may result in:

  • Injunctive Relief

  • Compensatory Damages

  • Policy Changes or Monitoring

  • Declaratory Judgments

If you suspect your child has been discriminated against or treated unfairly in comparison to other students, you do not need to face this alone. WNYFACES can assess the facts, identify potential Equal Protection violations, and pursue systemic remedies to promote justice and inclusion in education.