Preschool, Elementary, and Secondary Education:
Procedural Safeguards

Regulation:

34 C.F.R. § 104.36 Procedural safeguards.

A recipient that operates a public elementary or secondary education program or activity shall establish and implement, with respect to actions regarding the identification, evaluation, or educational placement of persons who, because of handicap, need or are believed to need special instruction or related services, a system of procedural safeguards that includes notice, an opportunity for the parents or guardian of the person to examine relevant records, an impartial hearing with opportunity for participation by the person's parents or guardian and representation by counsel, and a review procedure. Compliance with the procedural safeguards of section 615 of the Education of the Handicapped Act is one means of meeting this requirement.

Case Law:

Power ex rel. Power v. School Bd. of City of Virginia Beach, 276 F.Supp.2d 515 (E.D.Va. 2003).

  • No private cause of action exists to enforce this 104.36.
  • "While Section 504 clearly provides for a private cause of action to enforce a claim of discrimination... it does not provide for a cause of action to assert a claim of procedural inadequacy, separate and apart from a claim of discrimination."

Pasatiempo by Pasatiempo v. Aizawa, 103 F.3d 796  (9th Cir. 1996).

  • "The procedural safeguards, which allow parents the opportunity to be notified of and to contest school district decisions, were not intended merely to facilitate parental responses to a school district's suspicion of disability. Congress intended the procedural protections to counteract the tendency of school districts to make decisions regarding the education of disabled children without consulting their parents, and to require school districts to respond adequately to parental concerns about their children."
  • The identification of children who have disabilities should be a cooperative and consultative process... The informed suspicions of parents, who may have consulted outside experts, should trigger the statutory protections. When the school district or the parents suspect disability, the parents should receive notification of, and have the opportunity to contest, conclusions regarding their children. Moreover, to rely entirely on a school district's determinations would be to grant the district a measure of unilateral discretion that does not exist elsewhere in the special education arena.
  • When a parent requests an evaluation because he or she suspects that his or her child may be disabled, the parent must be notified of the district's response and how to challenge it.

Helms v. McDaniel, 657 F.2d 800 (5th Cir. 1981).

  • Although Georgia's system of treating the findings of hearing officer as report of special master conflicted with Education for All Handicapped Children Act (now the IDEA), Georgia 's procedures for holding hearings for parents dissatisfied with their child's individualized education program did not violate the Act or related Rehabilitation Act regulations so long as it was recognized that the choice before the local board was simply whether to appeal the decision of impartial hearing officer and that burden of proof and standard of review on appeal were unaffected by this structural arrangement.
  • "In treating the findings of the state reviewing officer as the findings of a special master, the state board fails to comply with the requirement that this decision be final unless appealed to state or federal court. Nor can the discretion vested in the state board be interpreted merely as the power to decide whether to appeal. The decision of the state board is final. If it rejects the findings of the reviewing officer, the burden is upon the aggrieved party to pursue his complaint in court. This system not only contravenes the specific requirement of finality: it undermines the enforcement structure created by the Act."