Some states shift IDEA burden of proof to schools
New Jersey lawmakers recently changed state law to require schools to bear the burden of proving, if there is a dispute with parents, that the educational plans they create for students with disabilities are appropriate. The state’s action, which follows a similar move by New York state in August, is considered a success by parents and advocacy groups interested in chipping away at the public-policy change made by a 2005 U.S. Supreme Court decision on the issue. In Schaffer v. Weast, the high court held that the party that has a complaint about an individualized education program (IEP)—most often, the parents—bears the responsibility of proving that the plan is insufficient. According to state Sen. Stephen M. Sweeney, one of the co-sponsors of the New Jersey legislation, the schools’ staff members are arrayed against parents. He believes that because of Schaffer and another recent Supreme Court decision that does not require schools to reimburse parents for expert witnesses even if the parents prevail in a dispute, it’s even harder to fight. “Parents are not sophisticated enough and don’t even know where to start,” he said. “Basically, it’s like tying both hands behind their back.” The New Jersey School Boards Association (NJSBA) fought the change in state law, saying that the Supreme Court had made the right decision in Schaffer. The new law requires districts to prepare to defend every aspect of a student’s educational program, the association said, without knowing exactly what the parents had a problem with. NJSBA “believes the process of complaint and due process would better serve everyone if parents were required to identify the central issue or issues they are challenging,” said NJSBA lobbyist Barbara Horl. Though Schaffer decided the burden-of-proof question, it was silent on whether states were free to adopt their own statutes. That left an opening for parents and groups like the Council of Parent Attorneys and Advocates (COPAA) to lobby states individually to make changes in their laws. There have been efforts to shift the burden of proof to schools through legislation introduced in Alaska, Hawaii, and Virginia. However, the District of Columbia school board voted in March 2007 to change its law so that it would be in line with the Supreme Court decision, contrary to previous practice that had placed the burden of proof on schools.
Jessica Butler, the chairwoman of the board of directors of COPAA, acknowledges that nibbling away at the law is a slow process. The school boards’ associations in the various states strongly support the Supreme Court decision and oppose efforts to nullify its effect at the state level. “At present, all of the efforts are on the state level, and that’s very difficult,” Ms. Butler said. “But the parents and advocates are really trying to rebalance the inequities.” Some states, like Illinois and Minnesota, have statutes that place the burden of proof on schools at all times, even if the parents are the party disputing the IEP. Common practice in New Jersey was to do the same, but there was no statute on the books codifying it. Therefore, the Schaffer decision prompted a change in the state, said Ruth Deale Lowenkron, a senior attorney with the Newark, N.J.-based Education Law Center. Ms. Lowenkron said she has heard anecdotal reports of school districts’ reduced willingness to negotiate with parents in the wake of Schaffer. “We have heard that districts have simply said, ‘No, we’re not going to do what you want, so sue us. And you have the burden of proof,’” Ms. Lowenkron said. Parents would often feel unwilling to press a dispute any further, she added. Frank Belluscio, NJSBA’s director of communications, said the Schaffer decision did not take away any of the safeguards for students and parents that are outlined under federal law. Though some states have changed their laws since the Schaffer decision, there wasn’t much discussion of the case after it was decided, said Naomi E. Gittins, the [deputy general counsel] for the National School Boards Association. That may be because few circuit courts and relatively few states had ever placed the burden of proof solely on schools, she suggested.
Source: Education Week, 1/28/08, By Christina A. Samuels
[Editor’s Note: Both Schaffer and the other Supreme Court decision to which Sen. Sweeney referred, Arlington Central School District Board of Education v. Murphy, are summarized below. Information about Connecticut’s and New York’s “anti-Schaffer” laws is available at the third link. The last link is to COPAA’s statement on Schaffer and its correspondence to legislative bodies. The schools’ uncertainty as to the specifics of the parent’s complaint where the parent does not bear the burden of proof means the school may need to have more staff leave school to attend hearings to address potentially any aspect of the IEP. This, of course, does little to counter impressions that “the schools’ staff members are arrayed against parents.” NSBA’s brief in Arlington observed that “school districts do not employ such personnel to have an unfair advantage at due process hearings, as the adversarial paradigm might suggest. Rather, they employ such personnel to serve students appropriately.”]
NSBA School Law pages on Schaffer v. Weast
NSBA School Law pages on Arlington Central Sch. Dist. Bd. of Educ. v. Murphy
NSBA School Law pages on Connecticut criticisms
COPAA statement on burden of proof