Special Education Burden of Proof Belongs on Complainants

A current bill in the Maryland General Assembly would shift the burden of proof against school districts in disputes over student special education plans. That’s a bad idea.

Such hearings typically arise after a family or guardian alleges that a district has failed to provide a student with special education services up to a federally set standard. These are often complicated disputes, involving voluminous evidence and bringing under scrutiny a long course of conduct by the school district. Often, the further accommodation demanded involves high costs, sometimes financial costs to the district, sometimes redeployments of resource allocation or classroom attention borne by other students or educators.

In Maryland, as in the great majority of states, the rule is that the complainant seeking legal relief bears the legal burden of showing that the complaint is valid.

That reflects the conventional rule, familiar from across our legal system, that the side seeking the law’s intervention shoulders the burden of proof.

It’s also a matter of basic fairness. Complaints often function in effect as accusations against responsible persons, such as educators or administrators, and requiring accused parties to show that they have *not* broken the rules isn’t what many of us would call fair.

But that’s what House Bill 294 (Del. Atterbeary), cross‐​filed with S. 926 (Sen. A. Washington), would do. It’s backed by some parents and by some professional hearing advocates and attorneys, who have a professional organization based in Towson. It’s also been endorsed by the state PTA.

In Schaffer v. Weast, a 2005 case at the U.S. Supreme Court that arose from Montgomery County, the high court ruled that absent specific guidance the burden of persuasion was properly placed on the complainants. That still left room for states to adopt a contrary rule placing the burden on districts. A few states have done that, including New York, New Jersey, and Connecticut.

The fiscal and policy note for HB 294 notes that New Jersey saw a “surge in the number of due process hearings within the first year after enactment” of its burden‐​shifting bill, but says the surge subsided. If the change turned some complaints from losers into winners, it would be natural for a new equilibrium to emerge as districts stopped fighting cases it now saw as losers and retreated to a new defensible line (which might include some cases that would never have been brought at all before the switch). As the fiscal note acknowledges, when complainants prevail in more cases, the underlying costs of providing special ed services are likely to increase, aside from the expenditure of resources on the hearings themselves.

On a practical level, even without this thumb on the scale, many special ed complainants succeed in jerking around districts for unjustified concessions simply by threatening systems with the high cost and uncertainty of legal challenge.

And if you worry that schools are obsessively bureaucratic now, wait till word gets out that a complainant can come in later with any old crazy allegation and the burden will be on you as educator to disprove it, so you’d better document every single thing forever.

In testimony on behalf of MABE, the Maryland Association of Boards of Education, attorney John Woolums said MABE was “concerned with the potential unintended consequences of shifting the burden of proof; including the increase in cost and duration of IEP [Individualized Education Plan] challenges and the resulting delay in students receiving the services they need until the completion of the dispute.”

Karen Yoho, an elected member of the Frederick County school board, said in an interview that among the potential unintended consequences was taking providers away from students. “One of the main concerns from special ed teachers is all the defensive practice school systems will expect from special ed teachers, greatly increasing their workload,” Yoho said. “And additional meetings, taking them away from their students, which time has to be made up.”

MSEA, the Maryland State Education Association, opposes the bill on similar grounds.

Better for Maryland not to go down this road.