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Due Process Hearings and Education-Related Complaints

Contents

    There are laws to protect students with disabilities. If you feel your child’s rights are being violated, you can file a complaint with the Michigan Department of Education (MDE) or the U.S. Department of Education (USDE). You might be able to ask for a due process hearing to resolve a dispute with your child’s school. 

    Due Process Hearings

    Due process hearings can be used in different situations. You can ask for a due process hearing if you disagree with the school’s opinion of your child’s special education needs. This includes identification, evaluation, eligibility, placement, or a manifestation determination if your child is being disciplined. You can also ask for a hearing if you believe your child’s school violated your child’s rights. Due process hearings are complex. If you are thinking of requesting one, you may want to speak with a lawyer. Use Find a Lawyer to find lawyers near you.

    To ask for a due process hearing, you must send your request to the school district and the MDE. Then the school will respond. After that, you will have a resolution session with someone from the school district and relevant members of your child’s Individualized Education Program (IEP) Team. If you do not come to an agreement, then you will have a due process hearing in front of an administrative law judge (ALJ).

    Due process hearings are important if your child is being suspended or expelled. Once you ask for a hearing, the “stay put” rule prevents your child from getting suspended or expelled. Your child could be moved to an interim (waiting period) setting, like in-school suspension, during the process.

    Due process hearings are complicated. The issue(s) you want the judge to review must be significant and based on the law. You may need expert witnesses who can help you make your point. You may want a lawyer to help you with the process. You can use Find a Lawyer to find legal services in your area.

    The Process

    To ask for a due process hearing, you must send your request to the school district. You must also send a copy of the notice to the MDE. In the notice, include your child’s name and contact information, and the name of your child’s school. Describe the reason(s) why you are asking for a hearing. If you have a solution to the problem, include it in your request.

    You can request a hearing within two years of the school’s action. The school district must answer you within 10 days of receiving your request. The school should respond to the issues you described in the request. The school district should explain why it did what it did and why other options were rejected. It should also describe any evaluations used to make its decision.

    The school district can also disagree with your request by saying it is insufficient (something is wrong with your request). The school district has 15 days to make this claim. If the district makes this claim, the ALJ reviewing your case will have five days to decide on the matter. If the ALJ decides the request was insufficient, you may be able to amend (change) your request. You can amend your request if the ALJ allows it, or if the school district agrees in writing.

    After the school district responds to your request, the next step is to attend a “resolution session.”

    Resolution Session

    Before the due process hearing happens, you must have a special meeting called a resolution session. The meeting will include you, members of your child’s IEP Team, and someone from the school district who has decision-making authority. The resolution session must happen within 15 days of the school district receiving your request for a due process hearing. You don’t need to have the meeting if both you and the school district agree in writing not to have it. If you agree to use a mediation process, then you don’t need a resolution session.

    There are two reasons to have a resolution session. The first reason is to give you a chance to talk about the facts and reasons for your request. The second reason is to give the school district a chance to fix the problem. The school district cannot invite its lawyer to the meeting unless your lawyer comes, too. If you and the district find a solution, you must sign an agreement. This agreement is like a legal contract that both of you promise to follow. However, either you or the school district can cancel the agreement within three days after signing it.

    The Hearing and Appeals

    If you and the school district do not come to an agreement at the resolution session, or if one of you cancels it, then you must go to a due process hearing. The ALJ will only make a decision about the issue(s) you put in your complaint. You can only bring up other issues during the hearing if the school district agrees.

    The hearing will be formal and will follow both federal and state laws. You will need to show evidence that helps to make your point. This can include expert witnesses. The process is complicated, so you may want to hire a lawyer. You can use Find a Lawyer to find legal services in your area.

    If you don’t agree with the judge’s decision, you can appeal. To appeal you must file a civil lawsuit in either federal or state court. If you decide to appeal in federal court you must file your appeal within 90 days of the ALJ’s decision.

    Watch the Going to Court video to learn about what to expect at a hearing and appeal.

    Complaint to the Michigan Department of Education (MDE)

    If your child’s school violates a law that protects students with disabilities, you can file a complaint with the MDE. Some examples of violations are a school refusing to offer your child services listed in his or her Individualized Education Program (IEP), or refusing to evaluate your child to see if he or she is eligible for Special Education Services.

    When filing a complaint with the MDE, you must follow certain rules. Your complaint must be written, signed, and sent to both the MDE and your child’s school district. The MDE address is:

    Michigan Department of Education
    Office of Special Education
    P.O. Box 30008
    Lansing, MI 48933
     

    Information to Include

    You must include your contact information, your child’s name and contact information (if different from yours), and the name of your child’s school. The complaint must have information about the issues(s) you are having and the rights you think the school is violating. This can include violations of any of the following:

    • Federal and state laws

    • Parts of the school district’s special education plan

    • How the MDE uses federal funds

    • Parts of your child’s IEP

    • A judge’s decision about Special Education Services

    Include facts that explain the school’s violation. Be as specific as possible and include times and dates. If you have a solution to the problem, put it in your complaint. Explain how the violation happened and the effect it had on your child, and possibly other children. If your child missed out on services he or she needed, you can ask for “Compensatory Education” (CE). Some examples of CE would be that your child receive extra therapy hours or summer services to make up for the missing services. Courts have said that CE replaces educational services the child should have received in the first place.

    You can use the Do-It-Yourself Complaint to the MDE to help you draft your complaint.

    Timeline and Possible Results

    You can file your complaint any time during one year after the problem occurs. Be sure to save a copy of your complaint for your records. The MDE will investigate your complaint. This often involves the compliance investigator from your child’s intermediate school district. The MDE has 60 calendar days from the time you file your complaint to investigate the complaint and make a decision. The 60-day timeline can be extended if any of the following happen:

    • You asked for a due process hearing for the same issue

    • You and the school have agreed to mediation

    • There are “exceptional circumstances”—like sudden school closures, a very complicated legal issue, or an issue affecting a lot of students

    If the MDE finds your child’s school did not follow the law, it will write a report and order the school district to correct its actions. The MDE’s report will include deadlines for when the school district must correct its actions. If the school district does not correct its actions, the MDE can do any of the following:

    • Take away the district’s authority to run special education programs

    • Refuse to give the school funding

    • Refuse to give licenses and accreditations

    • Take court action

    If the MDE finds the school followed the law and rejects your complaint, it still has to send a copy of its report to everyone involved. The report must also include your right to appeal.

    If you don’t agree with the complaint finding you may be able to challenge it. Challenging complaint findings is difficult. You may want to consider talking to a lawyer. Use Find a Lawyer to find legal services in your area.

    Complaint to the U.S. Department of Education (USDE)

    You can file a complaint with the USDE if you believe a school has discriminated against your child because of his or her disability. Your complaint will be reviewed by a regional Office of Civil Rights (OCR). Examples of discrimination are that your child is in a wheelchair and can’t participate in a class because the building is not accessible, or that the school placed your child in a separate school for children with disabilities without telling you why.

    You can file this complaint electronically. You can learn more about this by going to the Complaint Forms section of the USDE website.

    If you would prefer to mail your complaint, you can send your complaint to the regional office in Ohio. That address is:

    Office for Civil Rights, Cleveland Office
    U.S. Department of Education
    1350 Euclid Avenue
    Suite 325
    Cleveland, OH 44115
     

    You can also send a copy to the Department Headquarters in Washington, DC. That address is:

    Office for Civil Rights
    U.S. Department of Education
    400 Maryland Avenue, SW
    Washington, DC 20202-1100
     

    If you choose to mail your complaint, you can use the Do-It-Yourself Complaint to the USDE to help you draft your complaint.

    Information to Include

    Your complaint must be written and signed. You must include your contact information, your child’s name and contact information (if different from yours), and the name of your child’s school. The complaint must have information about the discrimination. Be as specific as possible, and include times and dates. Explain how the discrimination happened, the laws or regulations you believe were violated, and the effect it had on your child, and possibly other children. If you have a solution to the problem, include it in your complaint.

    Include medical information and reports about your child’s disability. This information could come from doctors, nurses, and therapists, even if they work for the school.

    Timeline and Possible Results

    Unlike state complaints, you must file your federal complaint within 180 days of when the discrimination happened. Very rarely, this deadline could be ignored under special circumstances. Be sure to save a copy of your complaint for your records.

    If the USDE decides the school’s actions were discriminatory (not fair), it will order the school to correct its actions. If the school does not correct the unfair actions, the USDE can refuse to give it funding. If you disagree with the decision, you can appeal it. To learn more, read the Appeals section of the USDE website.

    You can learn more about due process hearings and education related complaints in Special Education: An Advocate's Manual by the Michigan Protection and Advocacy Service, Inc.