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2004 Opinions

April 12, 2004
Nathan A. Adams, IV
(850) 245-0442
205-0442
04-04
None
Date:
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Opinion No.:
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Memorandum Opinion

To:

From:

Subject:
Mr. Joel Bello, Assistant School Board Attorney
Miami-Dade County School Board
Daniel J. Woodring
General Counsel
Due Process Hearings for Students with Disabilities

Question Presented: Whether school districts may delegate to charter schools responsibility to conduct due process hearings involving students with disabilities enrolled in charter schools.

Answer: School districts may not delegate to charter schools responsibility to conduct due process hearings involving students with disabilities enrolled in the charter schools, but may shift the cost of these hearings to the charter schools or require them to retain their own qualified counsel.

Discussion: Under federal law, students with disabilities, and their parents or guardians, are entitled to an impartial due process hearing from a “local educational agency” concerning student identification, evaluation and educational placement, or the provision of a “free appropriate public education” to the child. 20 U.S.C.A. §§ 1413(5), 1415(b)(6) and (f). “Local educational agency” means a public board of education. 20 U.S.C.A. § 1401(15). Charter schools, although organized as non-profit private corporations, are public schools and members of a public board of education. § 1002.33(1), (12)(i), Fla. Stat. (2003).

Under state law, an impartial due process hearing must be conducted by an administrative law judge from the Division of Administrative Hearings. § 1003.57(5), Fla. Stat. (2003); Rule 6A-6.03311, Fla. Admin. Code. Charter schools do not constitute an “educational unit” within the meaning of Section 120.52(6), Florida Statutes (2003), and, thus, have no standing independent of a school district to request such a due process hearing. § 120.569(2)(a), Fla. Stat. (2003) (authorizing administrative hearings involving “agency” decisions to include an educational unit’s decision affecting a person’s substantial interests). Therefore, the obligation to ensure a final decision in a due process hearing is reached and a copy of the decision is mailed to each of the parties not later than forty-five days after the receipt of a request for a hearing is the school district’s. Rule 6A-6.03311, Fla. Admin. Code.

The charter for a public charter school must include “major issues involving the operation of a charter school.” § 1002.33(7), Fla. Stat. (2003). The charter should reflect the school district’s responsibility to provide impartial due process hearings to children with disabilities and their parents or guardians. Of course, the charter may shift the cost of these hearings including reasonable attorney’s fees and costs to the charter school, which is also responsible for ensuring a “free appropriate public education” for disabled students. See § 1002.33(14), Fla. Stat. (2003); 34 C.F.R § 300.312. Alternatively, school districts may require charter schools to obtain their own qualified counsel to conduct the hearings. Failure of any charter school to obtain counsel or pay reasonable attorney’s fees and costs relating to the hearings shall not excuse the school district from ensuring that the due process hearing occurs within 45 days after the receipt of a request for a hearing. Rule 6A-6.03311, Fla. Admin. Code.

Conclusion: School districts may not delegate to charter schools responsibility to conduct due process hearings involving students with disabilities enrolled in the charter schools, but may shift the cost of these hearings to the charter schools or require them to retain their own qualified counsel.

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