Due ProcessWilliam Allan Kritsonis, PhD

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.

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.

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”).

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 didn’t 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.

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 Officer’s decision in any way.

You should know that the school district WILL be represented by an attorney.

The Hearing Officer’s 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 don’t , 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.

If the Hearing Officer rules in your favor it is possible to get your attorney’s 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.

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.

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.