Staff post:
Ginny Fogg
Supervising Attorney

Important new law will benefit parents and students with disabilities in due process cases

The NC General Assembly recently passed a law that changes how due process cases make their way to federal or state court. A “due process” case is one of the two ways a parent can formally appeal a school’s decision about their child’s Individual Education Program (IEP). Before this new law passed, parents were forced to go through two tiers of administrative review before they could take the appeal to federal or state court. The new law eliminates the “second tier” of administrative review. This change allows a due process decision to be appealed directly to federal or state court. Prior to this change, NC was one of only seven states with a two-tiered system for due process hearings; the remaining 43 states required only one tier of administrative review.

Due process is inaccessible to most parents

The first tier of due process in NC is already lengthy, expensive, and complex. Parents filing due process need to be able to afford an attorney, since it is almost impossible to win their case without one. Expert testimony is also required for the parent to prove their case. However, expert testimony is expensive, and the court does not award recovery (payment) of expert fees even when the parent wins. The expenses involved with due process make it nearly impossible for parents, and non-profits like DRNC, to use this method of appeal.

The first tier is a very intense procedure, nearly identical to a full-fledged trial. Decisions are made by judges from the Office of Administrative Hearings(OAH), who are attorneys. Importantly, NC is the only state with a robust hearing process at the first tier.

Two tiers; many problems

The second-tier review, which is not required by Individuals with Disabilities Education Act (IDEA), significantly increased the time and expense for families trying to enforce their child’s right to a free and appropriate public education (FAPE). If families wanted a judicial review in federal or state court after an unfavorable ruling at the first tier, they would have to proceed through the second-tier review before filing in court. If a family received a favorable ruling in the first-tier hearing, the school could and usually did immediately appeal it to the second tier.

Significantly, the second-tier review officers were not required to be attorneys as judges in the first tier are required to be, and were not permitted to hear any new or different evidence or arguments than were presented at the first tier.

Meanwhile, any favorable decisions made at the first tier for a child, such as granting compensatory education or reimbursement for a student’s private school placement, were put on hold while the school district appealed to the second tier. These second-tier decisions could take months and sometimes years, penalizing students by not providing them with the remedy ordered by the judge at the first tier.

Families already at a disadvantage

Families already face an extraordinarily uphill battle at the first tier. In the thirty-five (35) cases from 2016-20 in which an OAH judge issued a written decision, families obtained fully favorable decisions in just four (4) cases and partially favorable decisions in six (6) cases. School districts, on the other hand, obtained fully favorable decisions in twenty-five (25)—over seventy percent (70%)—of cases.

Additionally, in cases decided in last five (5) years, the second-tier review added a delay in reaching a final decision ranging from 16 to 364 days.

The NC School Boards Association (NCSBA) opposed this change to the law, and fought the elimination of the second tier. Instead, they proposed a change that would further disadvantage children with disabilities: that the first tier be limited to five days of hearing.

Parents have the burden of proof in IDEA appeals, so that 5-day limit would disadvantage parents even more – preventing them from having the time needed to provide their case. Parents are required to put on expert testimony at the first tier, and the NCSBA’s proposed changes didn’t limit the time school district attorneys could take for cross-examination of each witness. Practically speaking, that could result in school district attorneys impeding cases that would result in even further reduction in time for the child’s case to be presented.

At DRNC, we see the new law eliminating the second-tier review as an important first step in making due process appeals more accessible and fair to parents and children with disabilities in our state.