In proposed regulation 8 VAC 20-81-210(D)(6) the Virginia Department of Education seeks to grant an unfair advantage to school districts in Due Process Hearings. Their proposed regulation reads that:

The party requesting the due process hearing shall not be allowed to raise issues at the due process hearing that were not raised in the [due process] notice . . .
a. If the local educational agency is not the initiating party to the due process hearing proceeding, the Special Education Hearing Officer has the discretionary authority to permit the local educational agency to raise issues at the hearing that were not raised in the parent's request for due process in light of particular facts and circumstances of the case.

In other words, when a parent initiates a due process hearing, a school district, during the hearing, may raise new issues, but the parent is barred from raising new issues.

This is fair? Why did VDOE propose this one-sided  benefit to school districts?

In all types of civil litigation, when one party files a suit, the other files a reply which can also include a claim against the initiating party. Thus all claims and issues are heard at that time. During trial, if a new issue arises which is related to the case, the Court has discretion to permit testimony on that. However, Courts will not permit "trial by ambush or surprise" when someone knew of another issue and purposefully failed to disclose it until trial.

The proposed regulation permits school districts to prepare a "trial by ambush." This is wrong and is designed, not to protect the rights of children (one of the purposes of IDEA 2004 at 1400(d)), but instead to protect school districts from parents.

That this regulation was even proposed by Superintendent Cannady, Asst. Superintendent Cox, and their staff, certainly provides insight into their perception of who they are to serve and benefit. Is it the parents and their children, or the school districts?

This mindset is very very concerning and seems to permeate many of the proposed regulations.

Subsection "a" of proposed regulation 210(D)(6) should be deleted.