Due process hearing and OCR complaint (socks on a rooster) 2010

[ajasfolks2]

OPening Post:

socks on a rooster

So, I understand about filing a complaint with OCR pertaining to 504 plans. That would be the next step after being unable to reach an agreement with a SD. What I'm interested in is learning more about is Due Process. Is there a reason that someone would just jump past the OCR step? If the OCR rules against you would you then go the Due Process Route? How does one request Due Process? What type of attorney would handle this kind of case? I have spoken to one Special Ed attorney and although kind, he didn't really know anything about the rights of LTFA students and didn't sound like he'd be the right choice. Ideally, I think I'd like a civil rights/discrimination attorney with lots of experience with disabilities. Could one also file a civil suit against a SD. What would be the three potential outcomes in terms of gain? I mean, an OCR ruling would benefit other LTFA by setting precedent, whereas Due Process would settle one's individual case, but would it also set some kind of legal public precedent? And, would a civil suit just be about money, or would a judgement require a SD to make changes? What kind of case was Gloucester for example?

I realize I am rambling which goes to show how little I know about any of this. For those of you who have experience with this, would you mind sharing what it's like?

Thanks!

Follow ons:

kindergartenmom

The procedural safeguard is a little different for 504 and IDEA. I'm going through this as we speak. With 504 you can have a free mediation session with no attorneys involved. If mediation does not work you can have a due process hearing. You many skip mediation and go straight to due process. Both parties must agree to mediation. Your district must provide you with the procedural safeguards. At due process you can bring an attorney or you may go without one. The district brings an attorney. The attorneys I was told to get were disability attorneys. I know there have been civil right cases regarding 504 plans and accommodations. I'm not sure how each step plays out yet. If you win the due process you can request the district pay your attorney fees. You may also skip due process and just sue the school district. I think most people leave or home school before they get to this point so there is not a lot of information.

Related class action http://www.pattan.net/files/Gaskin/GaskinSet091605Final.pdf

CMdeux

We have had a number of members file with OCR.

THAT process generally does not end satisfactorily UNLESS the 'problem' is a blatant failure to follow the PROCEDURE set forth under section 504.  Read carefully-- because a lot is left open to interpretation.  Most OCR offices won't investigate a district or school if they are following their own procedures; individual 'appropriateness' of accommodations is simply NOT OPEN FOR DISCUSSION by OCR.

(Not saying that I think that's right, btw-- only that this is how OCR sees things-- they see those kinds of things as Due Process matters.)

Gloucester, is, I believe, this type of case.  The reason for the investigation, in that instance, was that the district in question was basically doing an END RUN around the law by refusing to even fairly evaluate a child with a clear history of LTFA. Also be aware that there are some regional OCR offices which probably wouldn't have gone that far.



Due Process hearings:

Again, we have few people that have gone this route.  I know of one win, and two losses, personally.

The person that won-- used an attorney.  This was a truly harrowing process for that person's family, and it took two years.

Some things to consider about due process:

•   find out how hearing officers are selected.  If the school district HAND-PICKS them, you're probably sunk.
  
  
• if you cannot find (or afford) a VERY good attorney that understands the specifics very clearly (ie-- someone that doesn't think that LTFA aren't a 'real' disability), you may want to think twice.
  
  
• understand that your child (or your family, for that matter) may very definitely face discrimination and retaliation right up to the edge of what can be PROVEN to be malice.
  

Many of the same cautions apply with a civil suit.  It will make you a target in the media.  Just know that going in-- you will NOT be portrayed sympathetically.  It just doesn't happen that way.   

notnutty

So, I understand about filing a complaint with OCR pertaining to 504 plans. That would be the next step after being unable to reach an agreement with a SD. What I'm interested in is learning more about is Due Process. Is there a reason that someone would just jump past the OCR step?

They are different processes.  An OCR complaint has to be based on a procedure the SD did not follow.  They will not rule on individual accommodations (unless the situation is extraordinary, such as Gloucester).

If the OCR rules against you would you then go the Due Process Route?

You could.  You could do both at the same time.  It depends what you are trying to accomplish.

How does one request Due Process?

Ask the SD for your procedural safeguards.  They should give you a written document for you to follow.

What type of attorney would handle this kind of case? I have spoken to one Special Ed attorney and although kind, he didn't really know anything about the rights of LTFA students and didn't sound like he'd be the right choice. Ideally, I think I'd like a civil rights/discrimination attorney with lots of experience with disabilities.

If you file a formal OCR complaint you can easily do it yourself.  Due process may require an attorney.  A special education attorney that understands LTFA.

Could one also file a civil suit against a SD. What would be the three potential outcomes in terms of gain?

You could ask for monetary damages or an injunction.  Damages may be hard to prove and it will be a long and expensive process.  Consider this very carefully with a very knowledgeable attorney.

I mean, an OCR ruling would benefit other LTFA by setting precedent...

Not necessarily.  The regional OCR office that handled my formal complaint was very specific that when it comes to OCR rulings, they are not precedent setting in the same way as case law.  The OCR does not need to follow another OCR ruling.

whereas Due Process would settle one's individual case, but would it also set some kind of legal public precedent?

I'm not sure the value of precedent from due process.  I think it has more weight than an OCR ruling, but I am not sure about this.

And, would a civil suit just be about money, or would a judgement require a SD to make changes?

see above...civil suits are usually about damages.  You would need to prove the SD violated a law and as a result you were damaged.  An injunction could require the school to do (or not do) certain activities.

What kind of case was Gloucester for example?

A OCR ruling.

I realize I am rambling which goes to show how little I know about any of this. For those of you who have experience with this, would you mind sharing what it's like?

Thanks!

I am not an attorney.  This is not advice.  These are just my thoughts based on my research and experience.  I do not know the specifics of your situation in order to try to help you determine a correct path.  Have you contacted a parent advocacy group in your state?  Sometimes they can give you advice and direct you to attorneys who may specialize.

[ajasfolks2]

Follow ons

socks on a rooster

In my state (every state?)you can file a complaint for discrimination, civil rights violations, and disability issues to the state department of education. Is this the same thing as Due Process or is this yet a 4th option? Kindergartenmom, when you talk about Procedural Safeguards, is that for due process? Who at the school or district do you ask for Procedural Safeguards? Mediation is through OCR right?

The unsafe food is not eaten in the classroom, but right in front of her at recess, or handed out just before school lets out. I'm not ok with either. It is a wild food culture school, and I don't see it changing.

So, CM it sounds like OCR isn't going to be helpful if it isn't in my 504 to begin with? Or, if we can show a pattern of exclusion that is documented and of which the school is fully aware, might we win?

socks on a rooster

I feel like doing nothing is just not an option. This is a district who is willing TO PAY FOR a separate treat for dd rather than include her.

Or, I could try to get a transfer to a neighboring district that has a clear food policy I really like. (2 food parties per yr, must be INCLUSIVE of all, no bdays, no food rewards, no goody bags. Ever.)

CMdeux

If you're fighting the inherent CULTURE of a school (or anything else, for that matter)--

it's a losing proposition.

Seriously-- even if you win (in court, etc-- and get full inclusion), you lose.

You will be (and more importantly YOUR CHILD WILL BE) 'those people.'

(Who stopped all the fun... who screwed the district over in court... who filed that frivolous lawsuit... who went berserk over kid's birthday treats... )


No, it isn't RIGHT.  I know that.  Believe me, I know it as well as ANYONE.  (Ask me about swimming.  Really.  Just ask.  Er-- or don't, for that matter.)



There does come a point beyond which the only acheivable objective is REVENGE/VENGEANCE...





That point is highly individual.  My suggestion to people over the years has always been to DECIDE FOR YOUR FAMILY where that personal limit is... 

Have a plan for what happens when you're faced with it.  Do you walk away?  Lay out cash to fight it in court?  Subject your family to the media attention and take comfort in the fact that you know that you're "right?"

Not saying that there is anything WRONG with that position, btw.  Just noting that nobody else can decide it for someone else.

Personally, I am of the opinion that I'd rather spend my time ON my child than on her BEHALF.  So when it becomes a power struggle, I'm very quick to evaluate how important it is TO HER-- and what our other options are that will meet her needs-- even if that means "letting those *******s get away with that crap."  That's me.  You should also know, though, that this is a huge part of the reason that my child was homeschooled.

notnutty

It is unlikely the OCR will help you because you are in disagreement with your SD with regard to accommodations.

Did the SD give you a copy of their procedural safeguards?  If not, ask for them in writing.

The other thing you can do to determine what the OCR thinks is to call them and ask for technical assistance.  You can explain your situation and see what type of feedback you get.  Sometimes they are helpful, sometimes not so much.  It might be worth a call.

notnutty

So when it becomes a power struggle, I'm very quick to evaluate how important it is TO HER-- and what our other options are that will meet her needs-- even if that means "letting those *******s get away with that crap." 

Yes, this. 

socks on a rooster

From the dept of education website:

9. What does noncompliance with Section 504 mean?

A school district is out of compliance when it is violating any provision of the Section 504 statute or regulations.

If section 504 prohibits exclusion, even if it's not specifically in MY 504, maybe we'd be ok? Or, do you think exclusion is too subjective?

CMdeux

It's covered under the specific accommodations, because what "inclusion" means is, in fact, entirely situational.  Specific to the QID.

It's not a procedural violation. 

Ergo-- it's a matter not for OCR but for... "due process."


KWIM?