On April 15, 2015, the U.S. Department of Education's Office of Special Education and Rehabilitative Services issued a strong warning to school districts throughout the country
about pushing families into due process. Under the Individuals with Disabilities Education Act (IDEA), if families believe their child is not receiving appropriate special education services, they have the option of pursuing a complaint through due process, or, by filing a state complaint.
In this “Dear Colleague” letter, the U.S. Department of Education expressed concern that some school districts are filing for due process over issues that parents have already chosen to address via state complaints.
Sue Swenson, Acting Assistant Secretary, and Melody Musgrove, Ed.D., Director of the Office of Special Education Programs, states that "...it appears that in some instances, public agencies may have filed due process complaints against parents in an effort to prevent the state complaint process from moving forward."
The letter goes on to state that “...this type of action … may unreasonably limit parents’ dispute resolution options, and force parents either to participate in a potentially more adversarial, lengthy and costly due process complaint and hearing, or to fail to participate in the due process complaint and hearing and thereby risk the hearing official’s ruling in favor of the public agency.”
The Department of Education “strongly encourages” the public agency school districts to honor the choices of parents in selecting a forum for resolving special education disputes.
Forcing parents who have already exercised their right to file a state complaint into a potentially more adversarial and more costly due process hearing harms the “cooperative process” that should be the goal of parents and districts alike. Furthermore, the letter from Swenson and Musgrove reminds public agencies that the diversion of resources into adversarial processes is “contrary to Congressional intent” of the 2004 amendments to IDEA’s dispute resolution procedures that were expanded in order to give parents and schools more opportunities to resolve disagreements in “positive and constructive ways.”