Are you the parent of a child with autism that has struggled to get them an appropriate education? Have you considered filing for due process for your child with a learning disability? Have you wondered who has the burden of proof, in a due process hearing? In 2005 The US Supreme Court heard a case on burden of proof in due process; the case was 546 US Schaffer v. Weast. This article will discuss burden of proof after the Supreme Court case Schaffer vs. Weast.
The question before the court on this case was At an administrative hearing (due process) assessing the appropriateness of a IEP, which party bears the burden of persuasion? The justices ruled that the burden of proof in a due process hearing challenging an IEP, is placed upon the party seeking relief, in other words the party that filed.
The reason this case made it all the way to the Supreme Court is because Maryland, where this case originated, did not have a regulation stating who had the burden of proof. 10 States place the burden of proof at a due process hearing on the school district. These states are: Alabama, Alaska, Connecticut, Washington DC, Delaware, Georgia, Illinois, Kentucky, Minnesota, and West Virginia. These states are not affected by this ruling
17 States place the burden of proof on the party that files for a due process hearings. These states are: Colorado, Indiana, Kansas, Louisiana, Maryland, Michigan, Mississippi, Oklahoma, New Mexico, North Carolina, Ohio, South Carolina, Tennessee, Texas, Utah, and Virginia. These states are not affected by this ruling
The states that are affected by Schaffer vs. Weast are: Arizona, Arkansas, California, Florida, Hawaii, Idaho, Iowa, Maine, Massachusetts, Missouri, Montana, Nebraska, Nevada, New Hampshire, New York, North Dakota, Oregon, Pennsylvania, Puerto Rico, Rhode Island, South Dakota, Vermont, Washington, and Wisconsin. Some states on this list may have passed laws, since this ruling that put the burden of proof back on the school district. Check with your state board of education to see if a law was passed in your state. If it was not, the burden of proof is on the party that filed.
Schaffer vs. Weast did have one positive section of the ruling. Justice Sandra Day Oconnor wrote: School districts may also seek such hearings, as Congress clarified in the 2004 amendments. They may do so for example, if they wish to change an existing IEP because the parents do not consent, or if parents refuse to allow their child to be evaluated.
What this means, is that school districts are required to file for a due process hearing, if they wish to change a child’s IEP. Before this, school districts were able to implement an IEP without a parents permission. The only way they could not, is if a parent filed for a due process hearing. Since the burden of proof has switched to the party that files in some states, this section is important.
For example: If you live in Idaho, a state that requires burden of proof on the party that files, and your school district wants to change your child’s IEP, without your consent; they are required by Schaffer vs. Weast to file for a due process hearing; and thus bear the burden of proof.
If the school district did not file for a due process hearing and the parent was forced to, they could ask a hearing officer to shift the burden of proof to the school district. This means that the school district, would have to prove that the changes that they want to make to your child’s IEP, are appropriate.
By understanding the burden of proof in a due process hearing, you will be able to make an informed decision about whether to file for a due process.
By: JoAnn Collins
Posts Tagged ‘Administrative Hearing’
Burden Of Proof In Special Education Due Process
November 21st, 2009What Is Due Process For Special Education – And What Information Do I Need To Know?
November 11th, 2009
Have you had a dispute with special education personnel, and wonder if a due process hearing will resolve it? Have you heard that parents have difficulty during due process, and should try to avoid it? This article will discuss due process hearings for special education, and important things you need to know about the process.
Due Process is a conflict resolution process, where parents and school personnel bring evidence in front of a hearing officer, who makes a decision on who wins. Due process is not a court hearing, but an administrative hearing. Due Process is a tough, adversarial process, but it is possible for parents to prevail. You should keep your issues few and simple. Below is a list of things that you must know about due process:
1. Before you file for a due process hearing, you must take your child to get an independent educational evaluation (IEE). You cannot win a due process hearing, without a detailed report, from a independent person in the field. If your child has autism, try and find a person who specializes in autism.
The person, who conducts the evaluation, must also testify, at the due process hearing. The report will be entered into evidence as part of your case. The person may testify by telephone, make sure that the due process sight includes a telephone with a conference call feature.
2. After you file for due process, have little verbal contact with special education personnel. Keep your communication in writing, as much as possible.
3. Some school personnel try and retaliate against parents for filing for a due process hearing. By keeping communication in writing, this may cut down on some of the verbal retaliation. In fact, I would expect retaliation, and be surprised if it doesn’t happen. Try and meet other parents who have gone through due process, to help you prepare and also with the emotional difficulties, associated with due process.
4. Once a hearing officer is appointed, they may not have contact with one party without the other party present. This is called ex parte communication, and is not allowed under the due process rules. If you need to speak to the hearing officer, call the school districts representative, and you can have a three party phone call.
5. Due process requires pre hearing conferences be held between parents, school personnel, and the hearing officer. Most times these are done by telephone; which makes it easier for everyone. The conferences set up the issues, date, time of the hearing, witnesses, if you need a telephone for witnesses that will be testifying by telephone.
6. You need to understand, that some states are one party due process states and some states are two due process party states. One party means that the state board of education hires the hearing officers. In Illinois, where I live, we are a one party due process state. In a two party state the school district hires the hearing officer, and the person who loses can appeal to the second state level. I understand that New York is a two party state. Check with your state board of education on which due process party your state uses.
7. You may be able to conduct the due process hearing yourself, or with the help of an experienced advocate. Keep the case simple! Check with local disability organizations to see if they have advocates who help with due process. Also try and meet parents who have experience with due process, their own or another parents.
This article has helped you learn some important information about due process. This will help you make a decision about whether you will file for a due process hearing. Good luck in your advocacy efforts!
By: JoAnn Collins
