IHBJ-EB ©

EXHIBIT

INDIAN  EDUCATION

(Native American/Indian Education)

HEARING PROCEDURES

The District will comply with the following as it applies to a hearing.

Applicability of hearing procedures in these procedures.  These hearing procedures apply only to proceedings.

Applicability of other laws.  The following provisions do not apply to proceedings:

A.  Administrative Procedure Act.

B.  Federal Rules of Civil Procedure.

C.  Federal Rules of Evidence.

Parties to a hearing.  The parties to a hearing under this subpart are:

A.  The complaining tribe or tribes; and

B.  The affected District or Districts.

Notice.  Within ten (10) working days after receiving a complaint, the Assistant Secretary:

A.  Appoints a hearing examiner to conduct the hearing;

B.  Selects a time for the hearing so that the hearing occurs no more than thirty (30) days after the appointment of a hearing examiner;

C.  Designates a place for the hearing that is, to the extent possible:

1.  Near the District; or

2.  At another location convenient to the tribe and the District, if the Assistant Secretary determines there is a good cause to designate another location;

D.  Notifies the tribe and the District of the time, place, and nature of the hearing; and

E.  Sends copies of the complaint to the District and the tribe.

District's reply to the complaint.  Within fifteen (15) days after receiving the notice, the District shall file with the Assistant Secretary its reply to the charges in the complaint.

General procedural rules:

A.  Communications.  No party shall communicate orally or in writing with the hearing examiner or the Assistant Secretary on matters under review, except minor procedural matters, unless all parties to the complaint are given:

1.  Timely and adequate notice of the communication; and

2.  Reasonable opportunity to respond.

B.  Submission of documents.  For each document that a party submits, the party shall:

1.  File one (1) copy for inclusion in the record of the proceedings; and

2.  Provide a copy to each of the other parties to the proceedings.

C.  Record.  A record of the proceedings will be established and maintained by the Assistant Secretary.

Conduct of the hearing:

A.  Public hearing.  The hearing must be open to the public.

B.  Representation by counsel.  Parties may be represented by counsel.

C.  Evidence:

1.  Each party may submit oral and written testimony that is relevant to the issues in the proceedings.

2.  A party may object to evidence it considers to be irrelevant or unduly repetitious.

D.  Authority and responsibilities of the hearing examiner:

1.  The hearing examiner may regulate the course of the proceedings and the conduct of the parties during those proceedings.  The hearing examiner takes all steps necessary to conduct a fair and impartial proceeding, to avoid delay, and to maintain order, including the following:

a.  The hearing examiner may clarify, simplify, or define the issues or consider other matters that may aid in the disposition of the complaint.

b.  The hearing examiner may direct the parties to exchange relevant documents or information.

c.  The hearing examiner may receive, rule on, exclude, or limit evidence.

d.  Although hearings are open to the general public, the hearing examiner may establish reasonable rules governing public attendance at the proceedings.

e.  The hearing examiner may examine witnesses.

2.  The hearing examiner may interpret applicable statutes and regulations but may not waive them or rule on their validity.

E.  Transcripts: 

1.  The Assistant Secretary:

a.  Arranges for the preparation of a transcript of each hearing;

b.  Retains the original transcript as part of the record of the proceedings; and

c.  Provides one (1) copy of the transcript to each party.

2.  Additional copies of the transcript are available on request and with payment of the reporting service's reproduction fee.

F.  Hearing costs.  Each party shall bear only its own costs in the proceeding.

Opportunity to submit additional evidence:

A.  Each party may submit to the hearing examiner additional evidence that is relevant to the issues raised at the hearing.

B.  The hearing examiner must receive each party's additional evidence within ten (10) days after the hearing.

The hearing examiner's findings and recommendations.  Within thirty (30) days after the hearing, the hearing examiner:

A.  Makes, on the basis of the record, written findings of fact and recommendations concerning any appropriate remedial action that should be taken;

B.  Submits those findings and recommendations, along with the hearing record, to the Assistant Secretary; and

C.  Sends a copy of those findings and recommendations to each party.

Opportunity to comment on the hearing examiner's
findings and recommendations:

A.  Each party may file with the Assistant Secretary comments on the hearing examiner's findings and recommendations.

B.  The Assistant Secretary must receive each party's comments within ten (10) days after the party receives a copy of the hearing examiner's findings and recommendations.

The Assistant Secretary's final determination:

A.  Within thirty (30) days after receiving the hearing record and the hearing examiner's findings and recommendations, the Assistant Secretary makes, on the basis of the record, a written determination that includes:

1.  Any appropriate remedial action that the District must take;

2.  A schedule for completing any remedial action; and

3.  The reasons for the Assistant Secretary's decision.

B.  After completing such final determination, the Assistant Secretary sends the parties a copy of:

1.  The hearing record;

2.  The hearing examiner's findings and recommendations; and

3.  The Assistant Secretary's final determination.

C.  Judicial review of the Assistant Secretary's final determination.  If a party is dissatisfied with the Assistant Secretary's final determination, the party may seek judicial review before a court of competent jurisdiction.

Effects of noncompliance with the Assistant
Secretary's final determination:

A.  Determination of compliance:

1.  Undertaken the required remedial action; or

2.  Failed to undertake the remedial action within the time established and the Secretary determines that an extension of time will not effectively encourage the required remedial action.

B.  Withholding by the Secretary:

1.  Except as provided, if the Secretary determines that the District has failed to undertake the remedial action, the Secretary withholds payment of all funds to which the District is entitled until that remedial action is undertaken.

a.  The Secretary does not withhold funds if the tribe or its designee requests in writing that these funds be released to the District.

b.  The Secretary may not withhold funds during the course of the school year if the Secretary determines that a withholding would substantially disrupt the education programs of the District.

2.  If the District is aggrieved by the Secretary's action, the District may request a hearing.

C.  Election of alternative services by the tribe:

1.  If the Secretary determines that the District has failed to undertake the remedial action, the affected tribe may elect to:

a.  Contract with the Bureau of Indian Affairs under Title I of the Indian Self-Determination and Education Assistance Act to provide educational services previously provided by the District; or

b.  Have a Bureau of Indian Affairs school provide those educational services.

2.  If the affected tribe exercises its option, any Indian students affiliated with that tribe who wish to remain in attendance at the District against whom the complaint was filed may be counted by the District for the purpose of receiving funds.

3.  If Indian students remain affiliated with the District:

a.  The Secretary may not withhold funds that are based on the number of Indian students who remain affiliated with the District; and

b.  The tribe may not file any further complaints with respect to these Indian students.

LEGAL REF.:
20 U.S.C. 240
20 U.S.C. 1221