Burden Of Proof In Special Education Due Process

admin — Sat, 21 Nov 2009 12:39:04 +0000

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

Observation by Independent Evaluators for Children in Special Education

admin — Mon, 12 Oct 2009 23:20:18 +0000

Are you the parent of a child with a disability, who will be getting
an Independent Education Evaluation (IEE), for your child? Have you
been told by special education personnel, that the evaluator may not
observe your child in the classroom? This article will discuss the rules
about independent evaluators observing your child in their current
placement.

When school districts conduct evaluations, they usually include an
observation of the child with a disability, in their classroom. This
is one reason, that it is important for independent evaluators to
observe the child in their classroom, as part of an IEE. Another
reason is because special education personnel will challenge any IEE,
where the evaluator has not observed the child in their placement.

Even though school personnel will challenge a parent’s IEE, for lack
of evaluator observation, they often tell parents that their evaluator
is prohibited from observing the child in their classroom.

Some special education personnel blame HIPPA and Ferpa, for the

prohibition, but this is not true. There is nothing in HIPAA, that
prohibits a parent’s evaluator from observing the child in the classroom.

In the court case: JH vs. Henrico County School Board 395 F. 3d. 185
(2005), the court found that an expert needs to observe a child in the
classroom. It would derive from the weight the Court gave to actual
observation of the child in the classroom.

Also in an Office of Special Education Program (OSEP) letter to Mamas,
they confirmed the right to observe, when the district used
observations as part of the evaluation process and referred parents to
state and local policies on observation.

In the Supreme Court Case Schaffer vs. Weast the justices emphasized
that parents should have equal power to school districts, thus
supporting the right to observe. The court also said that “IDEA thus
ensures parental access to an expert who can evaluate all the
materials that the school must make available, and who can give an
independent opinion.”

Courts in the past, have stated that little weight should be given to
parent’s witnesses, who have not observed in the classroom, and
greater weight be given to school district witnesses because they have
extensively observed the child. This is why it is frustrating, when
special education personnel, refuse to allow parents independent
evaluators to observe the child.

If your school district is refusing to allow your independent
evaluator to observe your child in school, send them a letter. Ask for
a written response as to why they are refusing. Take this response,
and file a state complaint, with your state board of education. The state
complaint could state, that your rights and your child’s rights are being

violated, by the school districts prohibition of your independent evaluator
observation.

You can stand up to special education personnel, that tell you lies
and deceptions. Independent evaluators must observe the child in their
current placement, to make the evaluation acceptable to the school
district. This is especially true if you are considering filing for a
due process hearing. If you file, and the school district refuses your
evaluator access to your child’s placement, ask the hearing officer
to make a ruling that will allow your evaluator to observe. Good luck!

By: JoAnn Collins

Special Education » Supreme Court Case

Burden Of Proof In Special Education Due Process

Observation by Independent Evaluators for Children in Special Education