The U.S. Supreme Court ruled in Schaffer v. Weast — a case that originated in Montgomery — that the party bringing legal action has the burden of proof in special education due-process hearings, unless state law says otherwise. New York, New Jersey and a handful of other states have passed legislation putting the burden of proof on schools.
Jennifer Halper, a special education lawyer in New Jersey, worked with other lawyers to shift the burden of proof to school districts after the Schaffer v. Weast decision in 2005.
“What we noticed as practitioners is that the school district began to not negotiate as much or work as much with parents” when the burden of proof was on parents, Halper said. “They would just say: ‘Go file for due process and see how you do when you are in court.’ ”
But after the law changed, New Jersey school systems were more eager to work with parents, Halper said. Schools wanted to avoid litigation they would be more likely to lose. Data from the U.S. Department of Education show such special education due-process hearings have dropped after an initial spike.
Chris Casey from Prince George’s County said forcing school systems to defend their education plans would help parents get their children the education they deserve.
Casey’s son has ADHD (attention-deficit hyperactivity disorder) and other learning disabilities. While other children were reaching a point where they “read to learn,” Casey’s son was still learning to read. Worried his son might fall further behind, Casey moved him to a private school.
It wasn’t until his family hired a lawyer that he felt confident enough to question school officials over his son’s learning plan, Casey said.
“We never forget the fact that we know so many people going through this struggle who didn’t have the means to at least get an advocate at the table with them and stand toe to toe with these administrators,” said Casey, who spent at least $10,000 on the process, which he said can be intimidating, full of legal jargon and bureaucracy.
The burden-of-proof bill could give parents leverage as they navigate the system, he said.
School systems are not allowed to factor in cost when determining the proper services for a disabled student’s education. But school systems must often juggle between providing a free and appropriate education, parents’ demands and a responsibility to taxpayers.
Maryland Gov. Martin O’Malley’s proposed fiscal 2014 budget includes $389.3 million in state funds for special education, according to a legislative report on the burden-of-proof bill. About $109.8 million would pay for placing disabled students in private schools.
Montgomery has the largest population of special education students in Maryland, with more than 17,000. Officials say it is clear that parents and schools are working together before disagreements arise because only nine cases from Montgomery went before a judge last year.
Dana Tofig, a spokesman for Montgomery school system, said the district is not resistant to parents’ concerns. Instead, its efforts are based on professional decisions from licensed therapists and other experts.
“Parents are going to advocate for whatever is best for their kids, and sometimes that is going to be adversarial,” Tofig said.
Coleman said some might argue that parents of disabled students are fighting the schools to get taxpayers to fund private education for their children. But she said that isn’t the case for her family. She and her husband are paying for private school for another son with special needs because they didn’t think Montgomery taxpayers should be responsible.
“We’re not trying to sponge off the system,” Coleman said. “We’re just trying to get our kids a good education where they can feel safe.”