Date Published: Mar 2, 2020
Source: 
Journal of Law & Education
Authors: 
Zirkel, Perry A.
Volume: 
49
Issue: 
1
Page Numbers: 
99-109

The IDEA provides a range of collaborative, investigative, and adjudicative avenues to resolve disputes between parents and schools related to IEPs. This article examines how the “decisional” processes of investigative complaint procedures (CP) and adjudicative due process hearings (DPH) relate to each other, and how each might meet—or thwart—the interests of schools and parents. As Zirkel notes, “the IDEA’s regulatory framework for CP includes provisions for a complicated and still-evolving interrelationship with the DPH mechanism.”

            The challenges of this “interrelationship” are evident in two scenarios, both of which may disadvantage families. First, in cases where a complaint investigation and a due process request are concurrent and contain overlapping issues, those issues are set aside in the investigation until the DPH concludes. Previous research shows that CP outcomes benefit parents more often than do DPH decisions, and so districts may gain advantage by filing for DPH while a complaint investigation is underway.

            Second, parents or districts may resort to DPH upon notice of a CP decision they deem unfavorable. Given the time and costs associated with DPH, this is more often done by districts than by parents. While a DPH is not understood as an appeal of a prior CP decision (unless state law addresses such), the relationship between DPH decisions and CP outcomes may lend such an appearance.

            Zirkel concludes that “the appropriate resolution of the two identified questions is via their structural separation. First, if a school district files for DPH in response to an ongoing parent-initiated CP on the same issues, the preclusive effect of the set-aside provision of CP should not apply. Second, if either party files for DPH in response to a completed and adverse CP decision, the appellate effect of DPH should not apply. Thus, the proper interpretation is for each process to stand separately on its own based on its distinctly different scope and standards. This interpretation is not only reasonable but also fair in relation to the overall intent of the IDEA.” (p.109)

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