Vote on Special-Ed Disputes Postponed

Resolution to Shift Burden of Proof Divides D.C. School Board Members

The proposal implies "we want to make it harder for you if you feel you want to get help for your child," school board member Tommy Wells said. (By Lauren Victoria Burke For The Washington Post)

The D.C. school board yesterday tabled a resolution seeking to change a law that puts the burden of proof on the school system when its instructional plans for special education students are challenged by parents.

In a case closely watched by educators nationwide, the Supreme Court in November upheld a Maryland law that puts the burden of proof on parents in such disputes, requiring them to show why a school district's plans will not meet their child's needs. As soon as the ruling was issued, D.C. school officials said they would seek to align their law with Maryland's.

But since then, the board has twice put off voting on a resolution asking the D.C. Council to change the law, amid signs that board members are divided.

Advocates of the change, noting that the District school system spends a disproportionately large portion of its budget on special education, contend that shifting the burden of proof to parents could reduce the number of legal challenges filed against the system and save money.

But other board members say requiring the school system to show why its plans are adequate is an appropriate safeguard, given the system's long-standing problems in delivering special education services. They also argue that school administrators have offered little evidence that changing the law would have much financial impact.

The school system's deputy general counsel "did not provide any information to show this would save the District money," school board member Tommy Wells (District 3) said after yesterday's meeting. Changing the law, he added, "would make a statement to parents that we want to make it harder for you if you feel you want to get help for your child."

Saying that the resolution needs to be studied further, board members yesterday postponed a decision until next month, when Superintendent Clifford B. Janey will present proposed policies on a range of special education issues.

The District's law is unusual. Most states, even before the Supreme Court decision, had laws putting the burden of proof on parents in disputes about instructional plans for students with disabilities.

D.C. school officials were prompted to establish their policy after they lost a 1972 federal lawsuit alleging that they discriminated against disabled students, said Robert Berlow, a special education lawyer in the District. In several subsequent lawsuits, federal courts have found the District in violation of the federal Individuals With Disabilities Education Act.

In 2003, then-superintendent Paul L. Vance proposed shifting the burden of proof to parents. But the school board left the policy alone after parents protested.

Many of the District's special education students attend private schools, often as a result of being placed there by hearing officers. In such cases, the school system is responsible for paying the private school tuition as well as the parents' legal fees. The number of hearings rose from 2,641 in 2002 to 3,502 last year.

A recent study of D.C. school system finances, conducted by the nonprofit Council of the Great City Schools, said the District could save a significant amount by changing its burden-of-proof rule, though it did not provide an estimate.

Some analysts, however, doubt that. They note that hearing officers often rule against the school system because it has missed deadlines for assessing students or completing their instructional plans -- procedural violations that would continue to cause problems. The District also has lacked some of the in-house programs that other school systems typically offer for special-needs students.

In a memo to the school board, the system's deputy general counsel, Erika Pierson, wrote that changing the law "will make it more difficult for parents to file frivolous hearing requests and will result in parent's counsel being more amenable to accepting settlement offers."

But Mary Lee Phelps, interim executive director of the system's Office of Special Education Reform, said that whether any money will be saved "is a hard judgment to make." She said that the number of cases she considers frivolous is "fairly small."

Advocates for D.C. special education students oppose the change.

"This will mean that children will be compelled to stay in failing schools," said Theresa Bollech, parent of a special-needs 14-year-old girl. Shifting the burden of proof to parents, she added, "makes it easier for the school system to not be held accountable."