Burden of Proof Bill Passes Senate Education Committee

Burden of Proof Bill Passes Senate
Education Committee

The Senate Education Committee last week released a bill that, if enacted, would return the burden of proof to school districts in special education disputes.

The bill, S-2604, would effectively reverse a 2005 U.S. Supreme Court decision, Schaffer v Weast, that said the burden should rest with the party bringing a complaint that a school district is not providing a free and appropriate public education. In that case, the court rejected the argument that school districts have better access to relevant information than do parents, noting that numerous provisions in IDEA obligate schools to safeguard the procedural rights of parents and to share information with them.

Many families of children with disabilities and advocates testified at the Nov. 29 committee meeting that the bill would level the playing field for all who challenge a school district’s special education plan, and help alleviate the expensive and emotional ordeal such challenges bring.

NJSBA opposed the bill, citing the expense of increased out-of-district placements, transportation costs, and the need of boards of education to balance providing services to both special education and general education students. In addition, boards would be forced to shoulder a comprehensive defense because there is no requirement for the challenging party to identify the particular shortcomings.

Identical legislation has already passed the Assembly Education Committee. Both bills are poised for passage by the full Senate and Assembly before the end of the current legislative session in January.