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 ‘Learning Disability’
Burden Of Proof In Special Education Due Process
November 21st, 2009Prior Written Notice – What IDEA Requires for Special Education
November 7th, 2009
Are you the parent of a child with autism that has been trying to
advocate, for a specific educational service for your child? Are you
the parent of a child with learning disabilities, who feels that they
need an Orton-Gillingham based reading program, but have no been able
to convince special education services? Prior Written Notice (PWN) may
help you in your fight. This article will discuss what the Individuals
with Disabilities Education Act (IDEA) requires as far as PWN, so that
you can use it to advocate for needed educational services, for your
child.
Prior written notice must be given according to IDEA, “whenever the
local educational agency (your local school district) a. they propose
to initiate a change or b. refuses to initiate or change, the
identification, evaluation or educational placement of the child, or
the provision of a free appropriate public education to the child.”
PWN must contain:
a. Description of the action proposed or refused by the agency;
b. An explanation of why the agency proposes or refuses to take the
action and a description of each evaluation procedure, assessment
record, or report the agency used as a basic for the proposed or
refused action;
c. A statement that the parents of a child with a disability have
protection under the procedural safeguards of this part;
d. Sources for parents to contact to obtain assistance in
understanding the provisions of this part;
e. A description of other options considered by the IEP team and the
reason why those options were rejected;
f. A description of the factors, that are relevant to the agency’s
proposal or refusal.
For example: You believe that your 7 year old with a learning
disability needs an Orton-Gillingham based program. You bring it up at
your child’s IEP, and the IEP team refuses to discuss it. You should
ask for PWN, which must include the above 6 items.
Once you receive PWN, you will understand why special education
personnel are refusing to give your child, an educational service that
they need. You can decide, whether you would like to file for a due
process hearing, to prove that your child needs the Orton-Gillingham
reading program.
While PWN can be difficult to understand, your taking the time to
learn about it, will be beneficial to your child.
By: JoAnn Collins
