At great risk of being left behind

Due process and administrative jurisdiction are ensured to address special education complaints

This story is an important update on the litigation we carry out in the Special Education Project. 

Diana Mar (pseudonym to protect her identity), 7 years old, has a diagnosis of autism and is registered in the Special Education Program. For a while, she moved with her mother to the U.S., where she received the educational and related services she needed.

 Upon returning to Puerto Rico after two years, her mother visited the corresponding Regional Education Office of the Department of Education (DE) to process her reentry to the Program. After several weeks without any news from the DE, she filed an administrative complaint to have the reentry process completed so her daughter could receive educational and related services and an appropriate placement alternative. Diana Mar's mother requested legal representation from Puerto Rico Legal Services’ Special Education Project.

 Because the DE had not offered an appropriate placement, the mother enrolled her daughter in a private school.

The Department of Education argued before the administrative judge that students enrolled in the Special Education Program placed in private schools by their parents do not have the right to the Administrative Forum Due Process, but only to file a Complaint. Therefore, it requested that the complaint be dismissed for lack of jurisdiction. The DE based its request for dismissal on the provisions of the federal Individuals with Disabilities Education Act. For its part, PRLS’ Special Education Project attorneys argued that the Administrative Forum did have jurisdiction over the matter.

 What began as a controversy over the processes of reactivation, registration, determination and provision of services for a student in the special education program, during the course added another over the jurisdiction of the Administrative Forum and the rights of students with disabilities in Puerto Rico.

 After several procedural incidents, the Administrative Forum dismissed the complaint alleging lack of jurisdiction, basing its determination solely on the federal legislation for students with disabilities. The Forum's determination represented a violation of the substantive and procedural rights of students with disabilities in Puerto Rico. In addition, by dismissing the complaint, it denied the student due process of law to address her case.

 It was necessary to file a motion for review before the Court of Appeals to address the errors regarding lack of jurisdiction and due process of law. PRLS attorneys argued that in Puerto Rico, the rights of students with functional diversity are broader than those established in federal statutes. They based their petition on the obligations of the Department of Education under the Stipulation Judgment of the Class Action Lawsuit of Rosa L. Vélez v ELA; one of the most important civil rights lawsuits in Puerto Rico.

The Court of Appeals agreed with PRLS’ argument and ruled in favor of the student, recognizing the broader protections regarding student rights in Puerto Rico. Accordingly, it established the jurisdiction of the Administrative Forum and the student's right to due process of law. The Court ordered the return to the Administrative Forum for the continuation of the proceedings.

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