School Board Supports Shifting Burden Of Proof In Special Ed Hearings To Parents

By Eliza Hallabeck

& John Voket

Newtown’s Board of Education voted November 15 to direct Chairman William Hart to send a letter to the state Board of Education supporting shifting the burden of proof in special education hearings from the school districts to the claimant, typically the parents or primary guardian of the child in question. The board’s vote was 6-1, with Vice Chair Debbie Leidlein opposing the motion.

While explaining the situation to the school board, Superintendent of Schools Janet Robinson said Connecticut is one of very few states that places the burden of proof on a school district.

“The educators in the state are becoming aware that there are some frivolous lawsuits that are brought forward in hearings that cause districts to spend legal fees because there is no risk on those bringing forward those issues,” said Dr Robinson, adding that the hearings are often a great expenditure of funds for all districts in the state.

This assertion was challenged by State Representative DebraLee Hovey, who commented this week that where superintendents have pushed and received a change in the burden of proof, the costs are nearly the same.

“I have seen it repeatedly in three different districts,” the superintendent told the board. “So there is a movement afoot to get the legislature and the new commissioner to take a look at, if not the law, at least the regulations behind the law to have the burden of proof lie with the person bringing [a claim] forward.”

Mr Hart said he has heard complaints from around the state regarding high legal fees and no restrictions on “frivolous suits.”

He also said the state’s legislature entertained the topic a few years ago, but nothing was changed.

“Now, the state Board of Education has a committee studying this that should bring a report forward in January,” said Mr Hart, “and the belief is they can enact it in regulation as opposed to a law change.”

Letters from school boards from around the state are being requested to supplement the committee’s study, according to Mr Hart.

Dr Robinson said the school district wants the best education for its students, and said many times people seem to believe “the big bad school districts” are brought to hearings out of a desire not to spend money or other reasons.

Dr Robinson said she sees others. She has seen, she said, school districts fight for what the educators believe to be in the best interest of the student.

Hearings, Dr Robinson explained during the meeting, are the final step in resolving a dispute between parents and the school district concerning special education students. Before being brought to a hearing, disputes are also brought before moderators and through other motions.

State Representatives Weigh In

At the start of the meeting, Ms Leidlein read a letter from Newtown’s Democratic State Representative Christopher Lyddy, urging the school board to not support changing the burden of proof to parents, who are normally claimants in the hearings.

“This issue has come up a number of times at the capitol in the form of legislative proposals,” Rep Lyddy said in his memo. “Throughout the last few years, I have heard from a number of constituents in Newtown as well as residents throughout the state on this issue.”

Rep Lyddy confirmed there is currently no legislative proposal to change the policy on the table, and previous attempts to change it had failed.

“While this initiative is being pegged as putting the district in line with a supreme court decision, it is important to note that the 2005 Supreme Court decision (Schaeffer v. Weast) simply allows the burden of proof to be placed on the initiating party for due process, the Schaeffer decision in no way requires that states adopt this policy shift,” Rep Lyddy wrote. “This particular case involved a due process decision from a state where there was no statutory obligation regarding who bears the burden of proof (Maryland).”

Rep Lyddy believes due process is a parent’s only mechanism to challenge a school district when the parent believes a child is not receiving needed services.

“Let’s also remember that a parent who goes to due process is confronted with a number of people who will testify on a school’s behalf, including special education teachers, regular education teachers, school psychologists, speech pathologists, physical therapists, social workers, administrators, etc. The average family can’t come close to providing this level of defense for their child and nor should they. I believe we need to develop, and maintain, policies that are in the best interest of the children,” Rep Lyddy wrote.

Following the meeting, Rep Hovey said she supports Mr Lyddy’s letter 100 percent. In the wake of her and Rep Lyddy’s request for the state to investigate Newtown’s special education department, Rep Hovey said the Newtown school district still has “some housecleaning to do.”

“They should take care of their own issues before signing on to this special interest initiative,” she said. “The state BOE is deferring its responsibilities — and they have not been successful in lobbying the legislature to make such a change.”

In an e-mail sent to Legislative Councilman George Ferguson responding to a query on the subject, Rep Hovey suggested the Newtown school board “should defer this as it will cause more rift than they already have … it is the job of the [state] BOE to make the decision and they are passing it on to the locals trying to stir the pot. This is catalyzed by superintendents around the state.

“Also, since I have been elected there has been little interest by the legislature to change this,” Rep Hovey wrote. “As someone who works in the field, I believe those who have the least power and information need the most protection (that would be the parents and children who are divergent) the system has attorneys and knowledge.... Burden of proof is fine just the way it is.... Parents already are treated poorly and have to fight tooth and nail for their children’s rights.”

Laura Fricke Main, chairman of a special education advisory committee to the school board, commented this week on a local social networking site that she “would encourage anyone with concerns about this issue to contact the state Board of Education in writing. I would be curious to find out who suggested this be placed on the BOE agenda. Was it the lawyer? Always ask yourself, ‘Who profits?’ Not children, I can assure you. Could be the attorney wants to be seen as the ‘hero’ in this. Might be better for business.... [especially] when people are questioning legal fees. Think about it.

“One would think that given all of the concerns about special education that the district and BOE would be bending over backwards to help students and families be more at ease. Not happening. Not at all. My heart breaks for these students and families,” Ms Main wrote.

A Letter of Support

Board member David Nanavaty said he disagreed with Rep Lyddy’s letter, and said changing the burden of proof would not put an undue responsibility on a parent bring a challenge forward. He said he felt it would have the opposite effect.

“I think it will make them maybe a little more realistic in the accommodations that are being provided to their student,” said Mr Nanavaty, “and maybe allow them to think out of the box.”

Having the burden of proof fall on a school district, Mr Nanavaty said, forces the school district to pay for expert witnesses, take employees out of work and provide substitutes for those employees, hire an attorney, and more, which may include paying for a hearing officer.

“The parent has no cost for this,” he continued. “The parent is not being charged a thing. In a regular civil court the moving party, which would be the plaintiff, in this case the parent, would be responsible for presenting the case and showing the hearing officer why they do not feel their child is being accommodated properly, despite the [Planning and Placement Team or PPT meeting], despite the accommodations that have been made for the child.”

Mr Hart said within the last eight years there have been ten hearings brought to the state regarding the Newtown public school district.

Board Secretary Andrew Buzzi said he agreed with most of Mr Nanavaty’s statements, and said he feels for parents and understands it must be a heart wrenching position to be in, going through the PPT process.

Mr Buzzi also said parents who have to find their own expert witness will have more faith in that witness, and sometimes will gain a different perspective on the situation while looking for an expert. He also said he is concerned that because educating special education students far exceeds the cost of educating mainstream students, costs associated with hearings could take money away from mainstream students.

Recommending the school board put faith in the judicial process, Mr Buzzi said he would support sending a letter to the state Board of Education in changing the burden of proof to lie with the accuser.

Ms Leidlein, who was the sole vote against voicing support for change through writing a letter,  said she was concerned about sending a letter to the state supporting the change, and said she does not believe parents think their cases are “frivolous.”

“They are parents that are concerned about their child’s education,” said Ms Leidlein, “and are advocating for their child.”