1. ACSA’s ECCS:
iLearn, iGrow, iSucceed
DUE PROCESS BOOTCAMP
January 16, 2014, by:
!
Mona Neter
Director of Special Education, Alhambra USD
!
Cole Dalton, Esq.
Dalton Law Group, PC
Overview
• What is due process?
• Who files?
• Why?
• What if I don’t want to?
DPH: What is it?
• It’s a walk in the park
• It’s a week of your life
• It’s phone calls from nervous
witnesses
• It’s a meeting with the teacher’s
union
Who files?
DPH
!

2. DPH: Why file?
On any matter relating to
the:
•
•
•
•
identification,
evaluation,
educational placement, or
provision of an appropriate education.
(34 CFR 300.507; Ed. Code § 56501)
Due Process Issues
• The party filing a due process case has the
burden of proof in the proceeding.
(Schaffer v. Weast (2005) 546 U.S. 49 [126 S.Ct. 528])
• The hearing may involve issues of both
procedural and substantive due process.
(Board of Education of the Hendrick Hudson Central School District v. Rowley (1982) 458 U.S. 176)
• Substantive: whether the IEP was reasonably
calculated to provide educational benefit.
Procedural Violations
Denial of FAPE from procedural violation
only occurs where the the violation:
• impedes the right of a child to a FAPE
• significantly impedes the opportunity of
the parents to participate in the decision
making process
• causes a deprivation of educational
benefits
(20 USC 1415(f)(3)(E); Ed Code § 56505(f)(2))
OAH’s Receipt of Request
When OAH receives a request for mediation
and due process hearing, it will issue and
mail to the parties a “scheduling order and
notice of due process and mediation”
generally within 48 hours.

3. The timeline is shorter than in parent-filed
cases because no resolution session is
required. OAH has 75 days to issue its
decision in a parent-filed case.
Decision Timeline
Under state and federal law, when a
school district files a request for mediation
and due process hearing, the OAH has
45 days within which to issue its decision.
Resolution Session
!
When a request for mediation and due
process hearing is filed with OAH by a
parent, the school district is required to hold
a “resolution session” within 15 days of
receiving notice of the filing.
Waivers
Dismissals
Cost vs. Benefits
TIME
Political Issues
MONEY $$$
Notice of Insufficiency
(20 USC § 1415(b)()7(B) & (c)(2); (Ed. Code § 56502)
!
Motion to Continue
!
Motion to Amend/File + consolidation
RESPONSE TO COMPLAINT
RELATIONSHIPS

4. Response To Complaint:
Motion To Dismiss
• Issues alleged by the parent are not
within the jurisdiction of OAH.
• Parents refused to participate in a
resolution session convened by district.
• Student is not a resident of the district.
• Parents fail to prosecute the case.
Parent can file a motion to determine
the stay put placement of their child
during the pendency of the hearing
procedures.
The Case is Proceeding
What if I don’t
want to go?
Witness Interviews
When
Why
How
Where
What...should they bring?
Document Review
Motion For “Stay Put”
(See, Student v. Mt. Diablo USD (2011) OAH Case No. 2010061370)

5. Preparing Witnesses
• Your background
• Your acquaintance with the student.
• What occurred at a specific time or
place (e.g., at an IEP team meeting
or an assessment).
• Other relevant information.
Mediation
•OAH shall complete mediation within 30
calendar days after request for mediation
and due process hearing is filed by the
district.
!
•Both parties can agree to extend time for
completing mediation.
(Ed. Code § 56043(q))
Other Forms of Resolution
• Voluntary Settlement Conference
• Voluntary Prehearing Request For
Mediation Conference
Statutory Settlement Offers
AKA Limiting Attorneys’ Fees
Why You Need To Consider This Now

6. Subpoenas
Of People or Things
Former Employees
NPA Employees
(5 CCR § 3082(c)(2))
Notice of Representation
• The other side must know you’re
being represented by an attorney
“at least 10 calendar days prior to
hearing, pursuant to subdivision
(a) of Section 56507.”
(Ed. Code § 56043(t))
10 Day Disclosures
The other side must be informed of the
issues to be decided at hearing and
the proposed resolution, at least 10
calendar days prior to the hearing.
(Ed. Code §§ 56505(e)(6), 56043(u))
Prehearing Conference Statement
File and serve at least 3 business days
prior to the prehearing conference

7. Notice of Witnesses & Evidence
at least 5 business days prior to the hearing
(Ed. Code §§ 56505(e)(7), 56043(v))
Cost vs. Benefits - Revisited
RELATIONSHIPS
TIME
Political Issues
MONEY $$$
Are you sure?
Because your Hearing is about to start….
Oral Evidence
!
Oral evidence shall be taken only
on oath or affirmation.
(Govt. Code § 11513(A))
Oral Evidence
NOTE: listening
to opposing
testimony can be
incredibly painful

8. Your Case Is Only As
Good As Your Witnesses
“My old drama coach used to say,
‘Don’t just do something, stand there.’”
Clint Eastwood
Witness Testimony
Your Case Is Only As
Bad As Your Witnesses
Witness Testimony
you’ve called your witnesses,
you’ve introduced your exhibits;
you’ve cross-examined opposing
witnesses;
what’s left?
(Govt. Code § 11513(b))
Evidentiary Rights of Parties
After the District completes its questioning, the
family’s representation will question you.
The hearing officer may also ask you questions
for clarification. When you have finished
testifying, the hearing officer will thank you
for your appearance at the hearing.
At that time, you may leave the hearing room.

9. rebut evidence introduced against
one of your witnesses
if respondent does not testify in his
or her own behalf he or she may be
called and examined as if under
cross-examination
(Govt. Code § 11513(b))
Evidentiary Rights of Parties
impeachment evidence; or
When Can We Make The Other
Side Stop Talking?
The presiding officer has discretion to exclude
evidence if its probative value is substantially
outweighed by the probability that its
admission will necessitate undue consumption
of time.
(Gov Code §11513(f))
1. Is it a statement?
2. Was it made out of court?
3. Is it being offered to prove the truth of the
matter asserted? (Evid. Code §1200(a))
Hearsay v Administrative Hearsay
A doctor’s report stating that Jill has ASD, the
doctor is not testifying.
(Gov. Code, § 11513(d); (Student v. Downey (2005) OAH Case No. 2005070481))
Privilege
11513(e)
• The rules of privilege shall be
effective to the extent that they are
otherwise required by statute to be
recognized at the hearing.
(Newport-Mesa Unified School District (1986) 508 IDELR 263 [doctor patient
privilege; see also, Capistrano Unified School District (2010) OAH Case No.
2010050368 [statements made during settlement discussions)

10. Attorneys’ Fees Awarded
to Parents
• Court awarded $65,803 to parent, of
$120,784 in attorneys’ fees.
• Parent only prevailed on 2 of 24 issues.
• Most critical factor in assessing attorneys’ fees
is the degree of success, not number of issues.
(S.A. v. Patterson Joint Unified School District (E.D. Cal. 2010) 55 IDELR 11)
Attorneys’ Fees Rarely Awarded
to Districts
Fees were recoverable where litigation
continued after the frivolous nature of the
litigation was obvious. (Bridges v. Barrie (D.D.C. 2010) 54 IDELR 186)
Appeals
An appeal of a due process hearing
decision shall be made within
90 calendar days of
receipt of the hearing
decision.
(Ed. Code §§ 56505(k), 56043(w))
Walk Aways

11. Good Bye!
Thanks
for
coming
!