Legal options for resolving disputes in special education

Exceptional Parent, The, Nov, 2007 by Perry A. Zirkel

Sec. 504 Due Process Hearing

Although not as well known, Sec. 504 expressly requires every district to have available an impartial hearing process for parents who want to avail themselves of an adjudicative process for alleged discrimination on the part of their child with a disability. In the relatively few states that have legally authorized their IDEA due process hearing officers to decide Sec. 504 issues alone, i.e., without accompanying IDEA issues, there is no big problem for school districts. But in the other states, the district has the responsibility to arrange for the impartial hearing officer within a reasonable period of time, which may serve as another strike against the district in case of a complaint to OCR.

Conclusion

The mechanisms for students with IEPs under the IDEA are multiple, and knowledge of them--even without necessarily resorting to them--can be advantageous to parents and other caregivers. If the parent does resort to one or more of these procedures, an attorney is not required, even--based on a Supreme Court's decision earlier this year--for IDEA litigation in federal court. However, having the advice of a specialized attorney or at least advocate would be useful for all of these options, and the representation by such an attorney or, in the various states that allow it, an advocate is generally advisable for the adjudicative options. In the long run, however, it is to everyone's advantage, including the child with a disability, for disputes to be avoided or resolved through open communications and mutual trust. Nevertheless, knowing that there are various legalized mechanisms, which parents may use singly or in combination, may help both them and their district counterparts resolve matters through the preferable, informal route.

Requests for references used in this article can be made to jhollingsworth@eparent.com.

Perry A. Zirkel is university professor of education and law at Lehigh University. He has a Ph.D. in Educational Administration and a J.D. from the University of Connecticut. He has a Master of Laws degree from Yale University. He has written more than 1100 publications, with an emphasis on legal issue in special education. He is the author of the two-volume reference, Section 504, the ADA, and the Schools and the recent CEC monograph, The Legal Meaning of Specific Learning Disability.

Perry A. Zirkel, Professor of Education and Law, Lehigh University