William Kritsonis, School Law, Ch 4 Due Process

1
Due Process

• William Allan Kritsonis, PhD

2
The Due Process Clause

• The fifth amendment provides that no
  person(shall) be deprived of life, liberty, or
  property without due process of law nor shall
  private property be taken for public use without
  just compensation.
• No State shall deprive any person of life,
  liberty, or property, without due process of law.
  (Fourteenth Amendment)
• Is essentially a guarantee of basic fairness.

3
The Due Process Clause

• Serves two basic goals
• One is to produce, through the use of fair
  procedures, more accurate results to prevent
  the wrongful deprivation of interests.
• The other goal is to make people feel that the
  government has treated them fairly by listening
  to their side of the story.

4
Aspects of Due Process

• 1. The government must provide notice of the
  charges against you.
• 2. The government must be able to show that there
  is an articulated (non-vague) standard of conduct
  which you are accused of violating.
• 3. The government must provide you with an
  opportunity to rebut their charges against you in
  a meaningful way and at a meaningful time (the
  hearing requirements).

5
Aspects of Due Process (cont.)

• 4. In order to sustain its position (i.e., its
  deprivation of your liberty or property), the
  government must establish at a minimum that
  there is substantial and credible evidence
  supporting its charges.
• 5. The government must provide some explanation
  to the individual for the basis of any adverse
  finding.

6
What to know about Due Process Hearings

• A request for Due Process must occur within one
  year of the date you knew or should have known
  about the problem for which you are requesting
  the hearing.
• The timeline does not apply if you didnt file
  your request due to the school saying it had
  resolved the problem or if the school kept
  information from you that it was required to
  provide.

7
What to know about Due Process Hearings (cont.)

• Specific information is required for your
  request, including what you believe will resolve
  the problem.
• Due process hearings are independent of the Texas
  Education Agency. The TEA may not influence the
  Hearing Officers decision in any way.
• You should know that the school district WILL be
  represented by an attorney.

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What to know about Due Process Hearings (cont)

• The Hearing Officers decision is a legal one and
  can only be challenged through an appeal in state
  or federal district court.
• You are not required to hire an attorney for a
  due process hearing, but if you dont , you will
  be expected to represent yourself. You will need
  to be very familiar with the laws and rules that
  apply to your case.
• Again the school district will have an attorney.

9
What to know about Due Process Hearings (cont)

• If the Hearing Officer rules in your favor it is
  possible to get your attorneys fees covered.
• There are clear timelines for the Due process
  Hearing to resolve the conflict including a 30
  day resolution period before a 45 day timeline to
  issue the Final Decision. Due process is not a
  quick fix to your conflict.

10
What to know about Due Process Hearings (cont)

• Due Process hearings are confidential. The are
  open only to those directly involved in the case.
• The party requesting the hearing will be
  responsible for the burden of proof. If that is
  the school district then they will have to show
  proof.
• TEA legal staff can not offer you legal advice or
  counsel in a Due Process matter. The can provide
  general information about Due Process Hearings.

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What to know about Due Process Hearings (cont)

• The legally binding written Settlement Agreement
  is a new requirement of IDEA 2004. The Settlement
  Agreement makes the decision of the due process
  hearing enforceable by a federal court of law.
  It is intended to make sure that the decisions
  made in due process are honored by both parties.
• The bottom line know your School Law.