By: John Worthington, Esq., Coordinator of Special Education Law, Foundation for Educational Administration
Among the procedural protections afforded parents of students with disabilities by the Individuals with Disabilities Education Act (IDEA), the right to a due process hearing to contest, among other issues, the appropriate programming and placement for their child, has the greatest legal, emotional, economic, and educational impact on the participants and the child. While all procedural protections are essential to protect the rights of families to meaningful participation in the special education process, due process hearings are quasi-judicial proceedings involving complex procedures and requirements, and can have the greatest impact on the program, placement and services provided a student with disabilities. Because of these complexities, and the financial and emotional cost attendant to utilizing due process, the cases tend to focus on certain issues.
The costs involved can be significant. These costs include attorney fees for the district, as well as for the parents if they prevail on any issue in the litigation, as well as the cost of substitute staff as necessary to allow relevant staff to attend legal proceedings. This is in addition to the emotional costs on staff and parents attendant to engaging in the proceedings. Both can be significant, as these proceedings can last well over a year in some cases.
Lessons Learned from the Data on Due Process Litigation
A review of the cases from New Jersey in the past several years demonstrates a specific focus with respect to what is being litigated in these cases: the services to be provided to a student with disabilities and the setting in which they will be provided. The below chart provides a breakdown of the most significant issues in over 200 recent special education due process cases. (Note that Procedural issues such as failure to appear for the hearing or dismissal for filing an insufficient petition for a due process hearing are not included in those listed. Note also that many cases included more than one issue, which is why the total reflects what appears to be a higher number of cases.)
| Issue | Number of Cases Involved |
|---|---|
| Denial of FAPE (including Section 504 FAPE) | 54 |
| Inappropriate IEP/Failure to Provide Required Supports (tailoring, goals, inclusion, evals) | 32 |
| Reimbursement/Compensatory education/Unilateral Placement (private or residential; tuition) | 55 |
| Procedural Violations (Child Find, team composition, notice, progress reporting, predetermination, etc.) | 24 |
| LRE/Placement dispute (including LRE, stay-put, appropriateness of public/private) | 27 |
| Classification/Eligibility/Child Find Dispute | 14 |
| Appropriateness/Provision of 504 Plan and Related Services | 9 |
| Related Services Dispute (transportation, OT, speech, BIP, assistive tech, etc.) | 19 |
| Assessment/Evaluation Dispute (including lack of evaluation, request/compulsion for IEEs, failure/refusal to evaluate) | 19 |
| Stay-Put/Interim Placement | 10 |
| Parental Notice/Procedural Participation | 8 |
| Discipline/Threat | 18 |
| Graduation/Transition | 5 |
| Classification/Child Find | 8 |
As the chart clearly reflects, New Jersey’s due process disputes between school districts and parents focus on what educational and related services are necessary to provide students a FAPE, the setting in which the services will be provided, and who will provide such services (e.g., special or general education teacher, related services provider, paraprofessional). As such, school districts need to be cognizant of how such determinations are being made, by whom they are made, and how parents are included in, and made a part of, such determinations. Being aware of the common issues in due process proceedings and adhering to best practices to ensure compliance with same, can assist school districts in avoiding or reducing the amount of costly litigation with parents.
Considering A Full Continuum of Options
While all school districts are required to have available, either in their own facilities or through other sources such as other local school districts, special services school districts, or approved private schools for students with disabilities, a full continuum of placement services and placement options, there can be a tendency to seek to place students in those district placements that are available. While seeking placement in district facilities with general education peers is required by IDEA and state regulations, districts must not determine services and placements based on what is available in the district, but rather, must consider all available and appropriate services and placements to provide the individualized FAPE to which all students are entitled. Districts must also ensure that parents consider themselves a meaningful participant in the process.
Although it may not appear to be a significant issue, failure to consider a full continuum of program and placement options can tie directly to the outcome of any due process case. In New Jesey, school districts have the burden of proof and production in a due process hearing, regardless of whether the case was filed by the school district or the parent. As such, failing to adhere to requirements such as considering all appropriate program and placement options and individualizing them to the student’s needs can create a fatal flaw in the school district’s efforts to prove the IEP is providing, or will provide, a student a FAPE.
With respect to parent participation and buy in, this is a factor that may be more important for avoiding litigation than any other. Parents are not likely to challenge an IEP that they feel part of developing, and especially that they agree with. Thus, cultivating relationships and ensuring parent participation and buy in goes a a long way toward avoiding litigation. Requests for a special education due process hearing emanate from disagreements between school districts and parents over what a student required to receive a FAPE. While school districts may have a student’s best interests in mind and believe their proposed program and placement are appropriate for a student, they must be cognizant of the parent having a different perspective and thus, opinion as to what their child requires. Bridging this gap is imperative for school districts to avoid litigation. The focus for parents is on what educational and related services their child will receive to allow them to receive a FAPE, and where they will receive them. This includes whether they will spend time with general education peers. While these are all issues school districts focus on, they must always consider the perspective of parents and how their decisions might inspire certain actions by parents, such as contesting them through a due process hearing. Likewise, proposals to change a student’s placement based on threats or behaviors can also spur litigation. As such, districts should seek to work cooperatively with parents when these situations arise to try to avoid litigation.
Consider Early Implementation of New Requirements
Another strategy for building positive relationships with parents involves taking steps to begin early implementation of a new law, P.L. 2025, c. 107, that goes into effect for the 2026-27 school year, Under this new statute, not less than two business days prior to an annual review Individualized Education Program (IEP) meeting, the LEA must provide specific information to the student’s parent(s) or guardian(s). These new requirements supplement the existing notice requirements in N.J.A.C. 6A:14. Taking steps to implement that new law now will help ensure that implementation concerns are fully addressed in advance of the new law going into effect, and help improve communication and build trust with parents, which in turn may reduce the potential for conflict and litigation. For additional information, see our article from the October 2025 edition of School Law Central and see the NJDOE broadcast email issued on August 6, 2025, encouraging districts to consider early implementation.
Moving Forward
The data from due process filings by parents verifies that the focal point of the vast majority cases is on the special education and related services the student will receive, and the setting in which they will be provided. Districts leaders are urged to work with parents in developing IEPs with an eye toward reaching agreement on the special education programming and placement to be provided in order to avoid the costs of litigation, which can include payment of both parties’ attorney fees if the parent prevails, as well as the costs attendant to the program and placement determined in the legal proceedings. Early implementation of P.L. 2025, c. 107 can further improve communications and build trust with parents. Putting the work into developing common ground with parents will provide much greater benefits to the district through avoiding the monetary and emotional costs of engaging in legal proceedings with parents.