A phrase that strikes concern and apprehension into the hearts of school district personnel is “due process hearing.” When parents feel their child’s right to a free and appropriate public education is being denied, they have the legal right to file for a due process hearing, which means they are suing the school district to attain educational rights for their child.

Due process is essentially the guarantee of fairness provided to us by the United States Constitution.  The 5th Amendment, which only applies to actions by the federal government, states in relevant part that a citizen cannot “be deprived of life, liberty, or property, without due process of law.” It was not until after the Civil War that this protection was extended to citizens aggrieved by actions of state and local governments.

The 14th Amendment, passed in 1868, states that no State shall “deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

So, since what the Constitution guarantees is that the government will not deprive its citizens of life, liberty, or property, without due process of law, which of these rights is a student being deprived of when a school district does not offer him an appropriate education?

Interestingly, the argument being advanced in a due process hearing is that the child is being deprived of a property right. In Goss v. Lopez, the Supreme Court held that State compulsory attendance laws created a property right in education and thus, in order to be deprived of the right to attend, the State must provide due process, essentially some sort of legal process for ensuring the right is not being taken away arbitrarily.

Thus, when parents file for a due process hearing, they are utilizing the state-mandated system for enforcing their child’s property rights to an education, a right founded under the Individuals with Disabilities Education Act, a national law which similarly to compulsory attendance laws creates a property interest in attending school.

You may download a Request for Due Process form at www.oah.dgs.ca.gov.

If you feel that your child is being deprived of due process, please contact my law firm through its website, via email at gregorybranch@edrightsadvocate.com, or by phone at (714) 856-1166.