8. Hearings
There may be situations where you cannot resolve an issue for your student at an informal meeting. In some situations, like when there is a disagreement over special education services for your student or you disagree with disciplinary action that a school is imposing, you may request a hearing or be asked to attend a hearing and find yourself at a place where you need to advocate for your student in front of a hearing officer or administrative law judge. A hearing is a lot like a meeting, just more formal. There are two kinds of hearings available to parents:
- Administrative Hearings – are formal processes for parents and school districts to resolve disagreements about Special Education services. These hearings are conducted by the Office of Administrative Hearings and are called “Due Process Hearings.”
- School Discipline Hearings – A discipline hearing is an opportunity for your student to challenge the claims that they did something wrong and for you to advocate for him or her. Even if your student admits to the wrongdoing, the hearing can be used to make sure that the punishment is fair. Discipline hearings are conducted by the School District.
There are slightly different rules that apply to each kind of hearing. This section includes information designed to help you prepare generally for a hearing. If you want more information on how to prepare for a special education or school discipline hearing, you can read the Office of the Education Ombuds publications titled Protecting the Educational Rights of Students with Disabilities in Public Schools and Discipline in Public Schools.
How do I prepare for a hearing?
1. Define the situation.
In no more than two sentences, answer the question "What is this all about?" Try starting a sentence with “This is a case about...” or “This situation is about…”
Example:
“This is a case about a punishment that is too harsh for what the student did.”
It will be hard to make your case that simple but try it. It will help you focus your thoughts. You can use your summary at the start and finish of the hearing to sum up your position. Do this in your opening and closing statements.
Next, summarize what you want and list your goals in order of importance. This can help guide you in questioning witnesses and arguing your points. Follow the suggestions for preparing yourself for meetings in this publication.
2. Stick to the facts.
Write what happened in order. Go back through what you have written and highlight the key points. If there are records that confirm facts, then reference them in your notes and mark them with paperclips, sticky notes or tabs so you can easily find them when you need them.
3. Find out what the hearing schedule will be.
Hearings follow a general pattern or schedule. Find out what this pattern is for the type of hearing you are attending. Be aware that education hearings tend to be informal, and the usual pattern may not be followed, especially in school discipline hearings.
4. Get all relevant records and organize them.
Getting records is always important. But for a hearing it is essential. Sometimes records and other information that will be used in a hearing are called “discovery.” Make sure you have all of the discovery and read it carefully before going to a hearing. (Look at the end of this publication for a sample records request form letter.)
Experienced trial attorneys use “trial notebooks” when they have trials in front of judges or juries. Notebooks are a good tool to organize a lot of information. You do not want to be shuffling through a stack of papers thinking “I know I saw a piece of paper that showed Anita was in school that day. Now where is it in this pile of 300 pieces of paper?”
5. Get a list of witnesses from the district.
Find out who will be testifying at the hearing. Ask the school district for a list of all the witnesses it will be bringing to the hearing. Write out questions you have for witnesses.
6. Know the law.
Research federal (national) laws, state laws, local (such as county or city codes), and school district policies. Find the law or policies that apply to the facts of your case. Outline what is important to your case by writing down key points. List the law you are relying on, so you have it in one place.
7. Write it down.
List key points you want to make during the hearing. List witnesses or records you need to make those points. List records you want to have the judge or hearing examiner consider.
8. Take your time in the hearing
It is really hard not to feel pressure to move quickly in a hearing. It feels like everyone is waiting, and sometimes an opposing party will play up that sentiment to get things moving. You should keep in mind that the most important thing is that your child gets the best possible outcome. Take your time in reviewing your notes. Ask for a few minutes break if you need to collect your thoughts. Talk with your witnesses or review your notes.
What will happen at the hearing?
Exchange of exhibits (documents) and witness lists
In special education hearings, both sides should give each other copies of any records or other things that they plan to use in the hearing. Both sides should also give a list of witnesses they intend to have at the hearing no later than five business days before the hearing. In discipline hearings, it is better if the information is exchanged before the hearing, but it often does not occur until the day of the hearing.
Administrative Law Judge (ALJ)
An Administrative Law Judge (ALJ) is a judge who handles only administrative hearings. In Washington State, ALJs are appointed by the Governor and work for the Washington State Office of Administrative Hearings. ALJs are the judges in special education due process hearings.
Preliminary issues
The judge/hearing officer will usually begin the hearing by asking whether there are any things that need to be taken care of before the hearing starts. An example would be one party asking that people who are going to be witnesses in the hearing stay outside the room during the hearing. (The reason for this request is that witnesses may be influenced or change their testimony if they listen to other witnesses during the hearing.) Another example would be letting the judge or hearing officer know of problems you have had in getting records from the other side. Try to avoid this situation by asking for the records as early as possible in writing.
This is the time for the judge or hearing officer to make decisions about how the hearing will proceed. You should feel free to ask him or her what to expect. One good question to ask is which side will be first to present their case. The order of presentation depends on which side has “the burden” to prove the case. In special education cases, it is often the school district. In discipline cases, the district usually goes first, too.
Opening statements
Normally each side is given an opportunity to give a short statement that helps the judge or hearing officer understand what the issues are in the case.
Witnesses
Next, one side presents its witnesses. Witnesses are usually sworn in by the hearing officer, meaning that they promise to tell the truth when testifying.
The party who called the witness gets to start asking questions. This is called a “direct examination.” When they are finished, the other side gets a chance to follow-up with questions. This is called a “cross examination.”
Then the party whose witness it is gets to ask follow-up questions. This is called a “redirect.”
Once one side has presented all its witnesses and evidence (such as records), then the other side does the same if it has witnesses.
Keep in mind that just because the other side presents a particular witness does not mean that witness could not help your case. Rarely are witnesses’ perspectives clear-cut. Listen carefully. Is the witness being consistent with things they have said in the past? Is the witness leaving out things that they know would help your case? Is the witness saying things that need more detail to be helpful to your case? These concerns should be a guide for your follow-up questions.
Testimony
Testimony are statements made under oath (where someone swears to tell the truth), usually in a hearing or some other court proceeding.
A few rules:
Never argue with witnesses. Let the witness finish each sentence. If you do not understand an answer that a witness gives, it probably means no one else in the room did either. Ask a follow-up question if you want more information.
If the witness does not answer the question that you ask, the witness either does not want to give you the answer or did not understand the question. Ask it again. If you think the witness just did not understand the question, rephrase it.
Exhibits
Exhibits are records, documents, and physical items, as opposed to testimony. Witnesses give testimony. If you want the judge or hearing examiner to consider exhibits as a part of their decision, you need to make sure they become a part of the hearing record. To do this, you will need to either:
- Have someone connected to the exhibits (records or documents) testify at the hearing or
- Get the other side to agree and state to the judge during the hearing that those particular documents can be a part of the hearing record.
Closing arguments
Each side gets a chance to sum up what has been presented at the hearing and to argue the major points of their case. This is the time to bring everything together and convince the judge that your points are valid. The side with the burden gets to go first. Then the other side gets to give their closing argument. Finally, the side with the burden finishes up with a second argument.
Decision
The judge or hearing examiner can give a decision at the end of the hearing or choose to send the decision to you in writing after the hearing is over.