districts to provide proof in complaints | Autism PDD

Two recent federal court decisions had put the burden of proof on the complaining party in special education cases, reversing the longstanding practice that had existed the last two decades in New Jersey.

But Chen agrees with many special education advocates who argue that parents are already at such a disadvantage taking on a school district, the state should enact its own protections.

"It just makes more sense for the districts to bear this burden," Chen said yesterday. "Many districts are very, very responsible in meeting their responsibilities, but there are others that are just not as responsive to parents' concerns.

"This will tell them they should do their homework and show they have done all they can," he said.

A small fraction of special education disputes in New Jersey ever reach court proceedings, often dealing with a child's school placement or the services made available. When they do reach a judge's decision, it is more often the districts winning, according to the state.

But even so, up until two years ago, New Jersey courts provided special protections for parents making the complaints and demanded districts prove their programs were adequate, citing their greater resources and access to documents and experts.

That all changed in 2005, when the U.S. Supreme Court put the onus on parents in a decision involving a Maryland case, and the 3rd U.S. Circuit Court of Appeals further affirmed it in 2006 in a case involving an autistic child in Ram sey.

Advocates maintained that neither case prevented the state from enacting a statute to protect parents, and they appealed to Chen's office to take up their stand. They said the federal decisions have only emboldened districts to challenge complaints and have further chilled parents' willingness to pursue their cases.

"We had been pushing the ad vocate to get involved, and we were really excited when he saw this as important," said Ruth Lowenkron, an attorney with the Education Law Center in Newark who helped lead the effort.

"We think this is really critical, and resurrected what should have been in place all along," she said.

School board attorneys and other representatives maintain the federal courts' decisions should stand in New Jersey and said they would oppose any proposed legislation.

"In any legal proceeding, the burden of proof is on the complainant," said Frank Belluscio, spokesman for the New Jersey School Boards Association. "This would only add to the already high cost of special education and puts an additional burden on districts and their taxpayers."

It is being chipped away in a lot of states. The burden should be on the school district to provide an appropriate education and FAPE. The parents taking on a big district are already at a disadvantage.

Paisley

IDEA (the federal law that governs special education in every state) is the law that says anyone who brings the complaint must bear the burden of proof.  This is a change in IDEA, because before the reauthorization the school always had the burden of proof no matter who brought the case.  So, in every state, whoever brings the complaint bears the burden of proof.  What this article is saying is that advocates in New Jersey are calling for this decesion to be reversed in their state.  They are asking that it go back to schools bearing the burden no matter who brings the complaint.  NJ School Board is saying no way.  I don't see how this could really happen since it's IDEA that lays this all out. 

Also, I am not taking sides in this debate, just explaining it a little further.  The article never comes right out and states that the federal law IDEA is the law that made this provision of the person bringing the complaint bearing the proof.  It makes it sound like NJ decided that alone for their state and advocates are calling for a reversal.  That's not how it happened.