What is the difference between a state complaint and due process?
 
In our practice, I have heard parents, advocates, and even attorneys refer to these mechanisms interchangeably. Indeed, both State Complaints and Due Process Complaints are procedures intended to resolve disputes between parents of students with disabilities and the school districts in which those children live. But they are different in many respects.
 
What are they?
 
A state complaint is a complaint to the Arkansas Department of Education. Individuals at the state agency receive, investigate, and make findings based on the complaint. A state complaint considers whether a school district has violated any state or federal law or regulation.
 
A due process complaint is like a lawsuit, but at the state agency level. It is a hearing like one would expect in court. An individual who files a due process complaint can present evidence and call witnesses to testify on their behalf. A due process complaint is presented before a hearing officer, not a judge. The hearing will not take place in a court room; it will likely be in a conference room. A due process complaint concerns any matter relating to a proposal or a refusal to start or change the identification, evaluation or educational placement of a child with a disability, or the provision of a free appropriate public education (FAPE) to the child.
 
While they have distinctive jurisdiction, there is overlap between the two types of complaints. A violation of law can deprive a child FAPE. Also, failing to evaluate a child, under certain circumstances, can violate state or federal law.
 
Who can file?
 
Any individual or organization may complain to the Arkansas Department of Education to start an investigation and, if appropriate, render findings. Only a parent/guardian of a student or a school district may file a due process complaint.
 
Is there a time limit to file?
 
Both state complaints and due process complaints have a “statute of limitations.” Any state complaint may only consider violations that have occurred in the previous year. Any due process complaint may only consider violations that have occurred in the previous two years.
 
How are they filed?
 
An individual may file a state complaint by filling out and sending in a form on the Arkansas Department of Education website. [1]
 
A due process is more complicated. It is not an investigation by the state agency. A due process is a more formal, “adversarial proceeding.” This means that it is a dispute between opposing parties.
 
Complaints must be written, signed, and include a statement that the public agency violated state or federal education law. It must also contain the facts upon which the statement is based.
 
The other side must receive a copy of the complaint upon filing.
 
Federal law dictates that the following must be included in a due process complaint:
  • the child’s name,
  • the child’s address,
  • the name of the school,
  • a description of the nature of the problem,
  • facts relating to the problem, and
  • a proposed resolution of the problem.
 
What happens when they are filed?
 
When responding to a state complaint, the Arkansas Department of Education will assign an investigator. That person will interview the filer, along with any relevant individuals. If appropriate, the state will send investigators to the school to investigate. The school district may provide information to the state to support its decision. If the state concludes that there is a violation, the state can require the school district to take part in trainings, make corrective actions, provide compensatory services, or even reimburse education-related expenses.
When an individual files a due process complaint, the Arkansas Department of Education will assign an impartial hearing officer. The parties will have an opportunity to attend a hearing. They may present witnesses, cross-examine witnesses, and present evidence. The hearing officer will then issue a decision. He or she may order compensatory education services, corrective action to develop and put in place an appropriate program, or other remedies, as appropriate.
 
Thomas Nichols is the Director of Legal and Advocacy Services. He can be reached at tnichols@disabilityrightsar.org.
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[1] http://dese.ade.arkansas.gov/divisions/learning-services/special-education/dispute-resolution/state-complaints