When is due process not due process?

 When is due process not due process?            

 

Federal and state law guarantees families the right to due process in seeking an appropriate education for their children.  The laws are really very clear.  There is even a stipulation in the law that the parents’ legal fees will be reimbursed by the school district if they win at the hearing.  Sounds good right?   But some school districts have figured out a way to deny due process while seeming to be cooperative.

This is how it all works.   Parents can go to mediation.  That is a process where both sides present their position to an independent mediator.  It is supposed to be a less expensive way and a less litigious way for issues to be settled.  However, families need to hire an attorney for the process and if they win, they do NOT get reimbursed so they are out that money.  If the parents don’t get what they want for their child, they go to a formal due process hearing that will cost them more money.  They can’t count on winning and getting their legal fees back.  Since Maryland law changed a number of years ago, the party proposing the placement has the burden of proof.   In over 98% of the cases, the party proposing the placement is the parent.  So even though the law says that the school district MUST provide a free and appropriate education for a child with special needs, the burden to prove that is on the parents NOT the Maryland school district. There was a bill in last year’s legislature to return the burden of proof to the school district but it failed to get out of committee.

School districts have attorneys on retainer.  These people are experienced at delaying tactics that cost the families money.  Very often money they can barely afford.  Once the hearing date is set, the school district attorney tells the hearing officer and the family how many days the school district expects for presenting their side of the case.  The school district attorneys add multiple witnesses and days to the hearing.  Often saying that their side will need 6-7 days to present.  Families then need to pay their attorney for those days plus days for the families’ case.  At $400/ hour or more, few families can afford this cost.  Additionally, the hearing officers are trained by the state so they tend to lean that way.  In fact, before the burden of proof was switched to the family, parents won 97% of the cases.   Now with the change to the burden of proof being on the party proposing the change, families only win about 8% of the cases.

Due process isn’t due process if this isn’t a fair fight.  Taxpayers don’t win either because that highly paid school district attorney not only has a retainer but he/she also gets an additional hourly fee for that extended hearing.  And since these are attack attorneys, they get paid top hourly dollars in addition to the retainer they have already received.

The system has been corrupted.   Taxpayers are spending huge sums for legal fees; parents can’t afford to fight the district.   Then there is the child- oh right-wasn’t the child the one due process was set up to protect?