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To establish a claim or allegation by admissible evidence (what is permissible by law) is known as the “burden of proof” (BOP). In the vast majority of special education due process hearings, the party requesting the hearing is a parent seeking an appropriate educational plan and placement for a child. The reason for this is that, under federal law, the Individuals with Disabilities in Education improvement Act of 2004 (IDEA), when schools and parents disagree about the appropriate educational plan for the student, the school’s proposed plan is adopted. The parent’s redress is to request a due process hearing or other administrative remedy. In most legal proceedings, the BOP is placed on the party seeking the hearing. In contrast, Connecticut regulations place the BOP on the school district. This means that the school district must prove the appropriateness of its program and placement.
Proposed House Bill No. 5197, introduced by Representative Jason Perillo, 113th District (Shelton, Fairfield County) would shift the BOP to parents in special education hearings. The Bill has been referred to the Committee on Education but the date(s) for public hearing have not been announced. A similar bill has been introduced in each of the last three years and has been defeated each time.
It is patently unfair to shift the BOP to parents. As discussed below, school districts have resources needed to bear this burden. Parents do not. As schools in Connecticut currently have the BOP, it is not a new mandate for the schools as it would be for parents if it is shifted.
The primary reason that Connecticut and other states have placed the BOP on the schools is that IDEA mandates public schools to provide students with a free appropriate public education. Parents provide a watchdog function to ensure that state and federal funds are properly used to provide these students with an appropriate education. A school district’s staff includes trained teachers, administrators and other professionals (psychologists; social workers; physical, occupational, speech and language therapists; and reading consultants, etc.) who are experienced in assessing students’ needs and designing and implementing educational plans to address those needs. Moreover, schools control the educational records, administer and run the planning meetings (referred to as “planning and placement team meetings”, or “PPT meetings”), and prepare the documentation of what is discussed and decided at the meetings, the “Individual Education Plan” or “IEP.”
In theory, under IDEA, parents are equal participants in decision-making, have the rights to access all records and to obtain independent assessments of their children. Unfortunately, the reality is that many parents are unaware of these rights, are ill-prepared to exercise them, and lack the financial resources to retain attorneys or obtain independent evaluations. In addition, at PPT meetings, where they are vastly outnumbered by school staff who often speak in acronyms and phrases that parents do not understand, parents can easily be intimidated and confused. This imbalance of knowledge, education, status and power is especially unfair to undereducated parents. Moreover, most parents lack the means to hire the expertise needed to understand the schools’ assessments and to determine whether or not the schools’ proposed programs and placements are appropriate. Such expenses are not reimbursable even if the parents win on all the issues presented at a due process hearing.
On the other hand, the schools already have the experts on their payroll and have the resources to retain attorneys to confront parents at hearings, which makes the process even more unequal. Usually, in educational disagreements, hearing officers presume educators to be more knowledgeable than parents about a student’s needs. Moreover, the districts either have on staff or are able to hire the experts to whom hearing officers give deference. Unfortunately, financial considerations often provide school districts with a perverse incentive not to provide the services and supports necessary for a special education student to make meaningful educational progress; hence their desire to shift the burden to the parents.
In 2005, the United States Supreme Court ruled in Schaffer v. Weast, that the BOP is on the party making the complaint (more often than not, the parents). However, the Supreme Court did not overrule States that have their own laws and regulations on BOP. The result is that Schaffer v. Weast only applies to states that have not addressed the BOP issue.
After the Schaffer v. Weast decision, Connecticut’s Commissioner of Education issued a statement that “the standard in Connecticut articulates a valid state policy that school districts are in a better position to defend the appropriateness of an IEP [Individualized Educational Plan].” Shifting the burden to the parents would overturn settled Connecticut policy on this matter.
It is noteworthy that the Connecticut State Department of Education’s (SDE) pending revisions to its regulations do not include shifting this burden to the parents. There are 195 school districts in Connecticut. According to the SDE’s statistics, schools rarely incur the cost of a full due process hearing as fewer than 40 cases per year go through a full hearing. Currently, schools win about 67% of due process decisions and parent less than 30%, and the balance are split decisions. Unfairly imposing the burden of proving the inappropriateness of the schools’ program and placement will further hinder parents in protecting their children’s rights to a FAPE. Furthermore, IDEA protects school districts from parents who file unfounded complaints by permitting them to recover their legal fees in such cases from the parents and/or attorneys who file them.
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