Legal Rights of Persons With Disabilities - Ossh.com

a. General
Any party dissatisfied with the hearing officer's decision can file a lawsuit. The lawsuit can be
filed in either federal district court or California superior court. Generally, a parent or child must exhaust
the administrative remedies available before filing a lawsuit. In other words, a parent must file a complaint
with the Superintendent of Public Instruction and use the hearing process before filing a lawsuit in federal
or state court. (Smith v. Robinson (1984) 468 U.S. 992.) In some cases a court will hear the suit without
use of the administrative process, but this is generally only allowed where the hearing would be futile (as
where a child with a similar problem was already denied relief) or where the school district has failed in its
statutory duty to inform the parents of the complaint procedures. (Doe v. Maher (9th Cir. 1986) 793 F.2d
1470.)
b. The Child's Placement During Judicial Review
If the hearing officer decides in favor of the parents of a child with a disability, then the school
district must immediately obey the hearing officer's order. Only a judge may permit the school district to
disregard the hearing officer's decision.
Federal law gives parents the right to insist that their child remain wherever he or she was before
the dispute arose, during both administrative and judicial review. This means that the school district may
not change a child's status, program, services or placement over the parents' objections, even if the hearing
officer decides in favor of the school district, unless a court issues an order to the contrary. (20 U.S.C. '
1415(j).)
If the hearing officer decides in favor of the school district and denies a child a type of program,
service, or placement that the parents think the child needs, the parents can ask the judge for a preliminary
injunction ordering the school district to provide what is needed. The parents can also arrange privately for
the child to receive the educational program, services, or placement that he or she needs. If the parents
ultimately prove that the hearing officer's decision was wrong, and that their child does need what the
parents provided privately, the school district will be required to repay the parents their costs. (Doe v.
Brookline School Committee (1st Cir. 1983) 722 F.2d 910.) Of course, if the judge ultimately decides that
the hearing officer was right, then the parents must pay for the privately-arranged program, services, or
placement themselves.
c. Court Proceedings
The trial judge makes an independent decision on the basis of both the hearing officer's decision
and any additional evidence which is presented.
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