April 23, 2010 1

Due Process:Views from the Sides

Linda J. Deal, Teacher of the Gifted

and

Jay Clark, Parent and Attorney for Gifted Students

April 23, 2010 2

Have you read the ProceduralSafeguards?

• Both educators and parents should actually read them.

• They spell out safeguards for parents to follow if they feel their child does not have appropriate educational opportunities.

April 23, 2010 3

Mediation, Due Processor Both?

Views from the sides

Not binding Binding

No legal precedence set Sets legal precedence

Less formal Formal

No Attorneys Attorneys

No expense Attorney fees

April 23, 2010 4

What is Due Process?

• The conduct of legal proceedings according to established rules and principles for the protection and enforcement of private rights, including notice and the right to a fair hearing before tribunal with the power to decide the case.

• Black’s Law Dictionary, 8th Edition

(a procedure that simulates a court proceeding to help make a decision between parties that don’t agree: the district and parents)

April 23, 2010 5

The Purpose of Due Process

• To obtain a decision on issues of disagreement by an independent, third-party.

It is not something to fear

• It may be tense at times

• It is easier if you think about the child involved

• You can get along with participants when it’s over, but occasionally it may take time

• Sometimes it’s a relief to have a neutral person look at issues.

April 23, 2010 6

April 23, 2010 7

Due Process under Chapter 16Initiated by Parents -16.63(a)

• For a Student who is gifted or who is thought to be gifted relating to:– Identification - 16.21 (questions over identification process)

– Evaluation - 16.22

– Educational Placement - 16.41

– Provision of a Gifted Education

April 23, 2010 8

Educational Placement - 16.41• GIEP Team must base education placement

based on the gifted student’s needs. 16.41(a)• The placement must:

– (1) Enable the provision of appropriate specially designed instruction based on the student’s need and ability. (PLEP - 16.2(d)(2)

– (2) Ensure that the student is able to benefit meaningfully from the rate, level and manner of instruction. (Goals)

– (3) Provide opportunities to participate in acceleration or enrichment, or both, as appropriate for the student’s needs. These opportunities must go beyond the program that the student would receive as part of a general education. (Goals, objectives and SDI 16.2(d)(3)

April 23, 2010 9

Gifted Education Defined - 16.1

• (vi) Individualized to meet the educational needs of the student. (GIEP)

• (vii) Reasonably calculated to yield meaningful educational benefit and student progress.

• (viii) Provided in conformity with a GIEP. (the explanation of services provided)

• (i) Conducted in an instructional setting. (school options)

• (ii) Provided in an instructional or skill area. (skill or content)

• (iii) Provided at no cost to the parents. (except for taxes ;-(

• (iv) Provided under the authority of a school district, directly, by referral or by contract.

• (v) or Provided by an agency.

Specially designed instruction to meet the needs of a gifted student that is:

Handout: optional services

April 23, 2010 10

Due Process under Chapter 16Initiated by District -16.63(b)

• Initial Evaluation - 16.22

• Re-evaluation when a parent fails to respond to the district’s proposed evaluation or reevaluation - 16.23

• When a parent rejects the district’s proposed educational placement, other than the initial placement, the school district may request an impartial due process hearing.

April 23, 2010 11

Due Process under Chapter 16Initiated by District -16.63(b)

Prohibited

• If the parent fails to respond or refuses to consent to the initial provision of gifted services, neither due process nor mediation may be used to obtain agreement or a ruling that the services may be provided.

April 23, 2010 12

Due Process Procedures

• Dispute Resolution Manual - Section 502– http://odr.pattan.net/files/ODR/SEDR_Man.pdf

• File a Due Process Claim

• Form on ODR website– http://odr.pattan.net/dueprocess/RequestForms.aspx

April 23, 2010 13

Due Process Hearing• Open vs. Closed Hearing must be requested

by parent at least 5 days before hearing - 16.63(d)

• Evening hearings may be requested by parent when the DP claim is filed

• Five-calendar Day Evidence Rule - 16.63(j)

• Access to Student Records - 16.63(i)

April 23, 2010 14

Timelines for Hearing• Hearing should be held within 30 calendar

days after initial request for hearing.

• Decision should be issued within 45 calendar days after the request for a hearing.

• Continuances/Extensions– None for the Decision deadline (ODR responsibility)

– Requested not infrequently, but infrequently given.

April 23, 2010 15

Burden of Proof

• Burden of proof is the responsibility of the party bringing the action.– Burden of production: Party’s duty to

introduce enough evidence on an issue to have the issue decided by the hearing officer. (decided prior to the hearing by the hearing officer)

– Burden of persuasion: Party’s duty to convince the hearing officer to view the facts in a way that favors that party. (this happens during the hearing)

• Black’s Law Dictionary, 8th Edition

April 23, 2010 16

Representation at Hearing

• District generally represented by counsel

• Parents may represent themselves (pro se)

• Parents may have legal representation– Attorney fees not reimbursed

• Parents may be accompanied and advised by individuals with special knowledge and training with respect to students who are gifted

April 23, 2010 17

Evidence and Testimony

• Right to present evidence and testimony, including expert medical, psychological or educational testimony

• (IEE = Independent Educational Evaluation. This may be done by people outside of the district. Both the district and the parents may have evaluations done at their own expense.)

April 23, 2010 18

Types of Evidence

• GWR

• GIEP

• NORA

• Assessments

• Emails

• IEE

April 23, 2010 19

Evidence Notebook

• Chronological - Oldest to newest

• Numbering of Exhibits - P-1 or SD-1

• Numbering of Pages - 1 of 5

April 23, 2010 20

The Due Process Hearing(just like a court hearing)

there is also a court stenographer recording all the testimony

• Opening Statement

• Direct Examination

• Cross Examination

• Handouts - due process for educators

• Due process for parents

April 23, 2010 21

Tips for Witnesses

• Reply only to the question asked• Use the evidence book. The attorneys will

refer to this as questions are asked.• Be honest. • Ask if you don’t understand a question.• Pause when Objections are made

• Educator Handout, p. 12

April 23, 2010 22

Tips for Teachers

• Don’t take it personally

• Stay focused on the student needs and abilities - not what others expect whether parents or administrators

• Chapter 16 rules - not District Policies

April 23, 2010 23

Tips for Parents

• Try to stay calm. Your answers will be more coherent and logical.

• State facts as you know them. Stay focused on the needs of your child. Present solid data.

• Avoid comments that attack or demean. These comments might not add to your case.

April 23, 2010 24

Transcript of Hearing

• Written transcript provided to parents at no cost.

• Written or electronic format.

April 23, 2010 25

Decision• Findings of Fact: A determination by hearing

officer of a fact supported by the evidence in record.

– Black’s Law Dictionary, 8th Edition

• Discussion of case and law

• Conclusions of Law: An inference on a question of law, made as a result of a factual showing, no further evidence being required.

– Black’s Law Dictionary, 8th Edition

April 23, 2010 26

Decision

• Must be based solely upon the substantial evidence presented during the course of the hearing. 16.63(e)

April 23, 2010 27

Appeals

• No Appeals Panel - new to Chapt. 16 revision• Appealed directly to Commonwealth Court• Basis for Appeal

– Constitutional rights were violated

– An error of law was committed

– The necessary findings of fact were not supported by substantial evidence

April 23, 2010 28

Implementation of Hearing Officer Decision

• Upon receipt of final decision from hearing officer or court, the school district must provide to PDE an assurance of its implementation of the order.

• Assurance must be filed within 30 school days of the date of the final decision.

April 23, 2010 29

Other Resources

• Chapter 16 Regulations– http://www.pacode.com/secure/data/022/chapter16/chap16toc.html

• Past Due Process Cases on the ODR website– http://odr.pattan.net/dueprocess

• Millersville University Listserve• http://listserv.millersville.edu/cgi-bin/wa?SUBED1=gifted-atmu&A=1