Appealing a School Decision
There are times when a family and school staff do not agree on the services or accommodations a student with a disability needs at school. Federal law provides parents the right to appeal a decision by the school in both special education (IDEA) and Section 504 accommodations for eligible students with disabilities. Also, state laws and regulations may provide additional rights or procedures. Every school is required to provide a description of the appeal process upon request. If you are considering this option, the first step is to request a copy.
The special education and Section 504 programs in your school district may have different procedures, so be certain that you are pursuing your rights through the correct department of the school system.
Individuals with Disabilities Education Improvement Act of 2004 (IDEA)
IDEA contains procedural safeguards that apply to the identification, evaluation, or educational placement of students who may be in need of special education and related services so they are able to receive a free and appropriate public education (FAPE). IDEA and its implementing regulations allow for a variety of mechanisms to resolve disputes, including requesting mediation, filing a complaint with the state education agency, or requesting a due process hearing.
Before Filing an Appeal
Consider these options first:
Informal Meeting—If school staff members are not aware of the depth of your concerns, consider asking for an informal meeting with all the staff involved in your child’s education to express your concerns. Be clear about the resolution you are seeking. Listen to the concerns of the school staff and identify what areas of agreement you have
Requesting a Due Process Hearing (An Appeal)
The formal request for a due process hearing to appeal the decision of the school district typically must be filed within two years of when the parent or school district knew or should have known of the alleged violation of IDEA. The request for a due process hearing must be provided in writing to the other party, and filed with the state or local education agency responsible for providing the due process hearing. The written request for a hearing must include:
A hearing will not be scheduled until proper notice is delivered to the other party and filed with the state or local education agency. States are required to disseminate a model form for how to develop the notice requesting a hearing. The content of the notice is considered to be sufficient unless the receiving party requests additional information within 15 days of receiving the notice.
Since 2004, prior to a due process hearing, if mediation is not used, the parents and school district are required to attend a mandatory resolution session. The resolution session is scheduled by the local school district after a request for a due process hearing is filed. If the parent refuses to attend mediation, the resolution session must be scheduled within 15 days of receiving the request for a due process hearing. If the parties decide to schedule a resolution session, the session must be completed within 30 days after the school district receives the request for a due process hearing. If the parent and school district are able to reach an agreement about how to resolve the dispute, then a written settlement agreement will be drafted for both parties to sign. Both parties have the right to revoke the agreement within three days of the end of the resolution session. If no agreement is reached, then the due process hearing will be scheduled.
Although the resolution session is mandatory, the parents and school district may agree in writing to waive the session, or opt to use mediation to attempt to resolve the dispute. If the parents refuse to participate in the resolution session, the request for a due process hearing can be dismissed. It is important that prior to deciding whether to seek mediation or a resolution session, that parents seek advice from local qualified special education attorneys and advocates who are able to provide guidance on which dispute resolution mechanism is most appropriate given their particular circumstances.
If parents are still unable to resolve their dispute through informal meetings, mediation, resolution session, or other mechanisms, then parents have the option of proceeding with their request for a due process hearing. The due process hearing will be conducted by an independent hearing officer or panel of impartial hearing officers. Depending on the state, the decision of the due process hearing may either be appealed directly to the local federal district court, or the decision may first need to be reviewed by an appeals panel of the state education agency. In either scenario, the U.S. District Court reviews the case, can decide whether to request additional evidence, and then will issue a decision based on the Court’s findings of facts.
The regulations implementing IDEA have timelines in place for when decisions must be issued after a due process hearing. Within 45 days of the education agency receiving the request for a hearing, the independent hearing officer must reach a decision, and mail a copy of the decision to the parents and school district. Also, within 30 days of receiving a request for the state appeals panel to review the decision, a final decision must be reached and a copy of the decision mailed to the parent and school district. Also, the regulations allow for either the parents or the school district to submit a request to the hearing officer for extension of the timelines. Typically, after a hearing officer issues a decision, IDEA requires that an appeal be filed within 90 days in either a state or federal court.
Section 504 of the Rehabilitation Act of 1973
Due process hearings can also be requested when a student is denied accommodations under Section 504 of the Rehabilitation Act of 1973. The Office of Civil Rights (OCR) of the US Department of Education is responsible for enforcing Section 504 in programs and activities that receive federal financial assistance from the Department of Education. According to OCR’s website, typically OCR requires that any appeal be made through a due process hearing, although OCR will investigate complaints received regarding systematic violations of Section 504.
State Law May Impact the Appeal
Before attempting to appeal a school district decision, consult the websites of the state and local education agencies for guidance on state laws and regulations that may impact the filing of an appeal in that particular state. For example, state law determines whether a non‐lawyer can represent either party in a due process hearing, and where an appeal must be filed. Also, state laws may have more restrictive timelines or requirements for filing a notice requesting a due process hearing. It is important to remember that due process hearings are a formal and potentially time‐consuming and expensive means to attempt to resolve a dispute.
Resources for Finding an Advocate or Attorney
When looking for an attorney or legal advocate, it is important to find one with experience in disability rights. The National Resource Center on ADHD is not able to provide direct referrals to individual attorneys; however, we can offer some suggestions on how to find an attorney who has experience with disability law:
The Protection and Advocacy (P&A) System and Client Assistance Program make up a national network of Congressionally mandated, legally-based disability rights agencies. P&A agencies have the authority to provide legal representation and other advocacy services, under all federal and state laws, to all people with disabilities (based on a system of priorities for services).
Your local CHADD chapter may be able to make informal recommendations about attorneys in your community. Contact the CHADD chapter nearest you and ask if the chapter has a resource directory of local services and professionals.
Special Needs Alliance (SNA). A national, nonprofit organization of attorneys dedicated to the practice of disability and public benefits law. Individuals with disabilities, their families and their advisors rely on the SNA to connect them with nearby attorneys who focus their practices in the disability law arena.
Legal Services Corporation (LSC). LSC funds 136 independent nonprofit legal aid programs providing legal assistance to low-income individuals and families throughout the US.