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Who Should Bear Burden of Proof in Due Process Hearings?

posted Nov 27, 2011, 9:10 AM by Diane Willcutts   [ updated Feb 3, 2012, 5:09 PM ]
Section 10-76h-14 of the Connecticut regulations requires that, in Due Process Hearings, the District has the burden of proving the appropriateness of the child's program.  

School board attorneys have argued that it is only fair that the burden of proof should be on the party filing for the hearing.  They also argue that placing the burden of proof on the school district incurs exorbitant costs.  

So why isn't this true?
  • Due to an imbalance of power, Boards of Education almost never need to file for hearings.  When there is a disagreement, the Board's program goes into effect unless the parent files for a hearing.
  • Burden of proof does not place any significant financial burden on our schools because districts are already required to maintain records to show compliance with IDEA, per EDGAR requirements (34 CFR  §76.731).
  • The Board should have the responsibility for demonstrating it's program is appropriate because, under federal law, it is the school district, not the parent, who is responsible for ensuring the educational program is appropriate.
  • School districts are in a better position to demonstrate an IEP is appropriate, as it is school districts, not parents, who have immediate and unlimited access to all the information about a child's program.

Why do you think parents are at a significant disadvantage in due process hearings?
  • School districts have access to their own paid staff to serve as expert witnesses in hearings.  In contrast, parents have to pay out-of-pocket for any expert witnesses that they would need in the hearing.  The vast majority of parents cannot afford to pay the thousands of dollars required to pay expert witnesses.  Further, as a result of a Supreme Court decision, parents do not receive reimbursement for expert fees, even if they prevail in the hearing.
  • School districts nearly always rely on legal counsel in due process hearings, and the tens of thousands of dollars in legal fees are paid for by taxpayer dollars.  Unlike schools, the vast majority of parents cannot afford to pay attorneys, and of course, parents receive no public money to pay for fees up front.  As a result, most parents have no access to legal assistance to help them navigate the the complicated and overwhelming hearing system.

Is there any data supporting that districts are in a better position to defend the appropriateness of the IEP than parents?  And that the impact of "burden of proof" on districts is very small?  Yes.  Connecticut data shows that:
  • There are 169 school districts in Connecticut.
  • There are over 62,000 students with disabilities.
  • During 2007, 2008, 2009, and 2010, there were only 53 due process complaints that were decided by a hearing officer. 
  • During 2007, 2008, 2009 and 2010, school districts were represented by attorneys 100% of the time, with legal fees fully paid for by tax dollars.  School districts hired legal representation even when parents were pro se.
  • Parents were represented only 60% of the time, with legal fees paid out-of-pocket.  Many parents proceed to hearing pro se, not being able to afford to pay thousands of dollars in legal fees up front.
  • When parents had to proceed without an attorney, they prevailed only 5% of the time.  When parents and districts both had attorneys, the results were more balanced, with parents prevailing 45% of the time.
But doesn't federal law recommend that the burden of proof be placed on the party filing for the hearing?

No.  The Individuals with Disabilities Education Act (IDEA) is silent on the issue of burden of proof.  A 2004 Supreme Court case, Shaffer vs. Weast, also does not require that states place the burden of proof on parties filing for hearings and permits states to place this on school districts.

If it is so expensive and time-consuming, why do parents file for hearings?

Before parents file for hearings, most have spent years trying to work with their schools but keep hitting barriers, due to an imbalance of power.  Parents spend years watching their children suffer, falling further and further behind their classmates.  Going to a due process hearing is a last resort, and only a tiny percentage ever file for hearings, even when their child's program is clearly inappropriate.  Parents are experts on their children, and the vast majority do not file for hearings unless serious problems exist.  For the sake of our students, we need to make this process more accessible, not put in place more barriers

The State Board of Education is currently considering whether or not to change this and will vote on this sometime after March 1, 2012.  If you would like to submit written comments, please send them to pamela.charland@ct.gov, along with a request that the comments be passed on to the Board of Education members.


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Diane Willcutts,
Feb 3, 2012, 12:24 PM
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