William Kritsonis, School Law, Ch 4 Due Process - PowerPoint PPT Presentation

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William Kritsonis, School Law, Ch 4 Due Process

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Title: William Kritsonis, School Law, Ch 4 Due Process


1
Due Process
  • William Allan Kritsonis, PhD

2
The Due Process Clause
  • The fifth amendment provides that no
    person(shall) be deprived of life, liberty, or
    property without due process of law nor shall
    private property be taken for public use without
    just compensation.
  • No State shall deprive any person of life,
    liberty, or property, without due process of law.
    (Fourteenth Amendment)
  • Is essentially a guarantee of basic fairness.

3
The Due Process Clause
  • Serves two basic goals
  • One is to produce, through the use of fair
    procedures, more accurate results to prevent
    the wrongful deprivation of interests.
  • The other goal is to make people feel that the
    government has treated them fairly by listening
    to their side of the story.

4
Aspects of Due Process
  • 1. The government must provide notice of the
    charges against you.
  • 2. The government must be able to show that there
    is an articulated (non-vague) standard of conduct
    which you are accused of violating.
  • 3. The government must provide you with an
    opportunity to rebut their charges against you in
    a meaningful way and at a meaningful time (the
    hearing requirements).

5
Aspects of Due Process (cont.)
  • 4. In order to sustain its position (i.e., its
    deprivation of your liberty or property), the
    government must establish at a minimum that
    there is substantial and credible evidence
    supporting its charges.
  • 5. The government must provide some explanation
    to the individual for the basis of any adverse
    finding.

6
What to know about Due Process Hearings
  • A request for Due Process must occur within one
    year of the date you knew or should have known
    about the problem for which you are requesting
    the hearing.
  • The timeline does not apply if you didnt file
    your request due to the school saying it had
    resolved the problem or if the school kept
    information from you that it was required to
    provide.

7
What to know about Due Process Hearings (cont.)
  • Specific information is required for your
    request, including what you believe will resolve
    the problem.
  • Due process hearings are independent of the Texas
    Education Agency. The TEA may not influence the
    Hearing Officers decision in any way.
  • You should know that the school district WILL be
    represented by an attorney.

8
What to know about Due Process Hearings (cont)
  • The Hearing Officers decision is a legal one and
    can only be challenged through an appeal in state
    or federal district court.
  • You are not required to hire an attorney for a
    due process hearing, but if you dont , you will
    be expected to represent yourself. You will need
    to be very familiar with the laws and rules that
    apply to your case.
  • Again the school district will have an attorney.

9
What to know about Due Process Hearings (cont)
  • If the Hearing Officer rules in your favor it is
    possible to get your attorneys fees covered.
  • There are clear timelines for the Due process
    Hearing to resolve the conflict including a 30
    day resolution period before a 45 day timeline to
    issue the Final Decision. Due process is not a
    quick fix to your conflict.

10
What to know about Due Process Hearings (cont)
  • Due Process hearings are confidential. The are
    open only to those directly involved in the case.
  • The party requesting the hearing will be
    responsible for the burden of proof. If that is
    the school district then they will have to show
    proof.
  • TEA legal staff can not offer you legal advice or
    counsel in a Due Process matter. The can provide
    general information about Due Process Hearings.

11
What to know about Due Process Hearings (cont)
  • The legally binding written Settlement Agreement
    is a new requirement of IDEA 2004. The Settlement
    Agreement makes the decision of the due process
    hearing enforceable by a federal court of law.
    It is intended to make sure that the decisions
    made in due process are honored by both parties.
  • The bottom line know your School Law.
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