NAVIGATING A DUE PROCESS CASE
Equip for Equality is providing the following checklist to pro bono attorneys to help
navigate the typical due process case. This checklist is not comprehensive, but provides
suggestions to attorneys as to how to proceed in a due process case. If you have specific
questions about your individual due process case, please call Olga Pribyl at (312) 8957321.
1) Before filing for due process, it is important that you know all relevant
information about your client. If Equip for Equality has not done so already, you
should request your client’s records. In suburban school districts, you can send a
records request letter to the attorney representing the District, if you know the
attorney. Otherwise, you can send the letter to the principal of the student’s
school. If you are dealing with Chicago Public Schools, you can fax the records
request to Paula Tovar in the Due Process and Mediation Department at 773-5531906. See attached example of a records request letter.
2) The first step in filing a legal action in a special education case is filing a due
process request. Usually, a parent has flexibility in determining when to file for
due process, and can file within two years of the problem the parent is trying to
resolve. However, if the school is trying to change a special education student’s
placement and the parent does not agree, the parent must file for due process
within ten days of the decision to change the student’s placement. The content of
the due process complaint should include the following (see attached sample for
more specifics):
 Student’s name, address, date of birth, parent’s name, telephone number,
and the school the student is currently attending;
 A factual history describing the nature of the problem;
 Legal issues in the case; and
 Requested relief (i.e. what the parent hopes will be the end result of the
case).
The due process letter should be sent to the superintendent of the school and to
Andrew Eulass, Illinois State Board of Education, 100 North First St, Springfield,
IL 62777. If Chicago Public Schools is the School District in the case, send the
due process letter to Andrew Eulass, as well as Luis Rodriguez, Due Process and
Mediation, Chicago Public Schools, 125 S. Clark St., 8th floor, Chicago, IL
60603 and Arne Duncan, CEO, Chicago Public Schools, 125 S. Clark St., 5th
floor, Chicago, IL 60603.
3) After you file for due process, you will get a response from the School District
within 10 days. The response should address the content of the parent’s
complaint.
4) Within 10 days of the School District receiving the due process request, the
Illinois State Board of Education (ISBE) will appoint a hearing officer. The
School District and Parent have five days to substitute a hearing officer, and such
substitution can be without cause. It is important that you contact Olga Pribyl at
Equip for Equality to discuss whether or not you should substitute a hearing
officer, as some hearing officers are more sympathetic to parents than others.
5) The School District and the parent’s attorney meet for a resolution session within
30 days of the filing for due process. The attorneys meet to discuss the issues,
and whether there is any chance at settling all or part of the case. If both the
School District and the parent agree, a resolution session can be waived and the
parties can participate in mediation with an impartial mediator assigned by ISBE.
6) Once a hearing officer knows that s/he has been assigned to the case, the hearing
officer contacts the attorneys involved to schedule a date for a pre-hearing
conference. Please see the attached document on preparing for a pre-hearing
conference. At the pre-hearing conference, the hearing officer will most likely set
dates for exchanging documents and the due process hearing.
7) Five business days before the due process hearing, each side must give to each
other and the hearing officer the final list of witnesses for hearing and a copy of
each document that will be used at hearing. You should include any witness or
document that you may possibly use. You do not have to call every witness you
list, nor do you have to use every document you provide. However, if you do not
list a witness or provide a document, you will not be able to use such information
at the hearing. For an example of a document book prepared for a due process
hearing, please contact Olga Pribyl.
8) Due process hearings are essentially run like an administrative trial. Each party
makes an opening statement. The opening statement should help explain to the
hearing officer the reasons that the parent filed for due process, but the main focus
of the opening statement is to tell the story of the student. You want the hearing
officer to feel a personal connection to the student, and so it is important to have
an opening statement that makes the student come alive, as opposed to how your
client may look on paper to the hearing officer.
9) The next stage of the trial involves having the witnesses testify. The hearing
officer will swear in each witness. The appropriate party will conduct a direct
examination of the witness (usually the parent has filed for due process, so the
parent goes first) and the other party will conduct a cross-examination.
Sometimes, both parties put the same witness on their witness list. For example,
often the student will be on both the District’s witness list and the parent’s list. If
that is the case, the party filing for due process (which is often the parent) will do
the direct examination first, then the other party gets to do both a direct
examination and cross examination of the witness at the same time. That way, the
witness does not have to be called again during the District’s case in chief.
10) In preparing for witness testimony, you should apply all the skills that you learned
in evidence and trial advocacy. It is important to prepare witnesses ahead of time,
when possible. However, your conversations with the witnesses are not
confidential (except for client-witnesses), and so you should be careful about what
you discuss with the witness. Make it clear to your witnesses ahead of time that it
is vital to tell the truth. When introducing documents through your witnesses,
make sure to lay the foundation by asking questions such as: have you seen this
document before? What is it? Is this your signature on the document? Please
describe the document.
11) The due process hearing ends with a closing argument. In a similar manner as the
opening, you want to get across the story of your client to help the hearing officer
understand why you want the particular ruling you are requesting. Some hearing
officers only want oral closing arguments. Some hearing officers ask for closing
briefs, citing case law. For examples of a closing brief, please contact Olga
Pribyl.