Hearings/Burden of Proof

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In prior sessions, the Education Committee  considered legislation to switch the burden of proving an appropriate  program from the school district to the parents and to expedite the due  process hearing system. Both of these issues aroused considerable  controversy. SEEK-CT is opposed to any change in the burden of proof.  School districts have the affirmative obligation to provide a free  appropriate public education (FAPE) to a student with a disability.  The  district possesses the evidence needed to demonstrate that it offered an  appropriate program. Forcing parents to prove a negative without having  the evidentiary base is not appropriate. As to the hearing system, while  we have ideas for reform, we recognize that no consensus exists and  believe the Legislature should not devote time to this issue.


Our Position

The  burden of proving that a proposed Individualized Education Plan (IEP)  is appropriate falls on the school board, under current regulations,  C.G.S. §10-76h-14. SEEK-CT opposes any change in the burden of proof.


Under  state and federal law, the educational program and placement for a  student with a disability is determined in a collaborative Planning and  Placement Team (PPT) meeting. When the parent disagrees with what the  school district proposes, the parent has the right to file for a due  process hearing. At the hearing, the hearing officer must determine  whether the proposed program is appropriate and, if not, what relief to  offer to the student.  A due process hearing is a lengthy, highly  legalistic, and very expensive proposition. No parent can win a hearing  without an expert who can opine on the inappropriateness of the proposed  program.  


Most parents fighting for the  educational rights of their children do not have the financial resources  to hire the attorneys and the experts needed to prevail in a special  education due process hearing. According to the CT State Department of  Education 2018 database, parents represented themselves in 57% of the  fully-adjudicated due process hearings but won none of these hearings.  School districts are represented by experienced counsel in 100% of all  due process cases, fully funded by taxpayer dollars. This imbalance of  power skewed in favor of school districts would be further exacerbated  if the burden of proof is borne by the parents. 

To make matters worse, parents are responsible for the cost of their experts, whether they win or lose a hearing. Arlington v. Murphy, 548  U.S. 291 (2006). School boards have ample staff and resources available  to provide expert testimony without an additional financial outlay.  


More  than one third of students with disabilities live in households with  incomes of $25,000 or less, and in Connecticut, over one third of  children with disabilities live in poverty. Low-cost legal aid services  are usually not available due to the severe limitations on legal aid  funding. Often parents borrow from others or seek pro bono attorneys to  bring complaints hoping to help their children educationally. Additional  burdens placed upon parents to prove appropriateness could deter them  from bringing needed complaints against boards.  


The  law places an affirmative duty upon the school board to provide  appropriate programs to enable children with disabilities to make  meaningful educational progress. The school board has possession of the  evaluation reports, in-school performance data, and the staff that is  with the child every day. This is the information that is necessary to  demonstrate the appropriateness of any special education program. It  follows that school boards should carry the burden to prove their  educational programs are appropriate. Without this burden shouldered by  the board, lower achievement will surely result from unchallenged  inappropriate educational programs. Children with disabilities in  Connecticut already suffer from a significant achievement gap as  compared to children without disabilities. We cannot and should not put  these children at risk of further educational decline.