If a party is deciding whether or not to sue a public or private school, there is an important distinction which must be considered prior to filing the suit. Unlike public schools, which are generally treated as government institutions and are subject to constitutional, substantive and procedural protection, private schools and the relationship with their students are often governed by contracts. This is an important distinction, because if you decide to sue a public school, State and/or Federal law will apply, however, should you engage in a law suit with a private school, the terms of the specific contract will control the relationship.

Because a private school is not considered part of the local or state government, they do not have the same legal responsibilities to students who suffer from disabilities, such as a student with an Individual Education Program (IEP). Instead, in such circumstance where a student may require an IEP with a private school, this educational plan will be governed by the contractual relationship between the school and its student unless the school receives a certain amount of public funding. This obviously differs from a public school, which is subject to State regulations and applicable federal laws which govern its responsibilities to a student who has an IEP.

As such, it is important to be both familiar with the laws that govern an IEP with regard to a public school, and if there is a dispute with a private school, the party should be well versed in interpreting the contractual terms and how they affect the relationship. It is for these reasons that if there is a dispute with a private or public school concerning a special needs student, it is suggested that the party consult with an attorney or a professional who has knowledge with regard to reviewing the contractual relationship with a private school or to review the applicable laws which govern the public school. 

As you are likely aware, IEP stands for Individualized Education Program. An IEP is a written plan, which sets forth in detail the special education needs of a particular child. In general, an IEP is formulated by a school’s Child Study Team, a Case Manager and a School District Representative. Should a parent or guardian disagree with the IEP plan presented for their child, there is a process to challenge an IEP.

In general, the first way to resolve a disagreement concerning an IEP involves the process of mediation. Mediation is an informal process at dispute resolution without resorting to the Courts. The mediator assigned to hear the matter is from the New Jersey Department of Education. Once a mediator is assigned, mediation is to be scheduled within fifteen days of the receipt of a written request. In general, mediation is at no cost to the parent or the school, however, the parent or the school has the right to retain an attorney. If an agreement can be reached, then in that event, the matter is resolved. If mediation does not succeed, the next step would be a due process hearing.

A due process hearing would be a legal process in which the resolution of a disagreement between a parent and the school is decided by the Administrative Law Judge from the Office of Administrative Law. A due process hearing is a proceeding wherein an Administrative Law Judge rules on the appropriateness of an IEP which is proposed by the school and with which the parent disagrees. At a due process hearing, both the school and the parent may retain attorneys to represent them. The due process hearing must be completed within forty five days after the case has been transmitted to the Administrative Law Judge. An important note about a due process hearing is that the parents may be awarded counsel fees and any other fees they incurred if the Administrative Law Judge rules in their favor. Aside from a due process hearing, one of the final ways to resolve a dispute concerning an IEP is the Complaint process.

In general, if a Complaint is filed which addresses the same issues which are pending at a due process hearing, then in that event, the due process hearing takes precedence over the Complaint until the due process hearing is completed. At the end of the day, the Complaint is a less formal process and does not possess as much power as a due process hearing before an Administrative Law Judge.

The above information is merely a snap shot of what a parent’s rights are in challenging an IEP, it is suggested that a parent who is dissatisfied with an IEP consult with an attorney to determine the appropriate course of action.