Hearings/Burden of Proof
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.