In our experience, due process is rarely necessary. Most school districts will work with parents and their advocates to resolve disagreements. There will inevitably be times, however, where despite the best efforts of everyone involved, you cannot agree on the educational needs of your child. At such a point due process becomes an important option to consider.
A special education due process hearing is not something to be taken lightly and should only be considered as a matter of last resort. Filing a due process hearing request is tantamount to suing your school district, which will undoubtedly hire expert legal counsel to represent their interests. Plus, the laws surrounding special education are complex. While hiring an attorney can be a costly endeavor (rates vary, but in Maine they average $150 - $300 an hour), representing yourself (known as “pro se” representation) in a due process hearing rarely results in a favorable outcome for the parents. These factors are important to consider when weighing whether to go it alone or hire legal counsel.
In the words of my favorite (fictional) attorney, Alan Shore: This business is not an ethical arena. Our legal system is adversarial by nature, where it is often the very function of a lawyer's job to prevent the truth from ever coming out. We get paid to suppress and squash and conceal evidence. Remember, this is the system that freed O.J. but also convicted Rueben “Hurricane” Carter. Every first year law student is taught to don’t ever – ever – equate legal ethics with morality. They’re almost always mutually exclusive. It’s an ugly world where underhandedness is often celebrated.
We at Midcoast Advocacy recognize that not all families can afford private attorneys and advocates, and recommend these free resources:
Disability Rights Maine – Located in Augusta, DRM is Maine’s federally funded Protection and Advocacy organization. DRM employs attorneys and advocates that can help you through due process. Due to the sheer volume of requests DRM receives, they only work with families whose child is in dire circumstances, such as a pending suspension, expulsion or if the student has been subjected to restraints and seclusion.
Kids Legal – With offices in Portland and Bangor, Kids Legal is a statewide project within Pine Tree Legal Assistance. They specialize in legal services addressing the needs of low-income Maine children. To receive services your income must meet Federal Poverty Level guidelines.
Maine Volunteer Lawyers Project – Similar to Kids Legal, this organization provides legal assistance to low income families.
Maine Department of Education Due Process Office – Their website contains the necessary forms for requesting due process hearings and complaint investigations. Published decisions are posted as well.
Do It Yourself Due Process - Texas attorney Dorene Philpot has written an excellent e-book to guide pro-se parents in special education due process hearings.
Google Scholar - The easiest way to research court decisions related to special education.
Midcoast Advocacy can assist you in your due process hearing or complaint investigation, however, we are not attorneys and cannot represent you or provide legal advice. The information provided here should only serve as a guide and you are encouraged to contact the above providers directly if you have questions.