Lifting a burden from special ed parents

The welcome lifting of the federal consent decree on Baltimore City Public Schools does not mean all is well for students with disabilities in Baltimore and Maryland — far from it. Yet, the General Assembly rarely pays any attention to the fact that special education isn't nearly special enough. Hopefully that will change. Pending legislation gives lawmakers a chance to at least take a small step to improve the education of students with disabilities.

As things now stand, students across the range of disabilities — from intellectual limitations to language impairments to dyslexia — are denied the opportunity to meet academic standards because they are not provided services to which they are entitled under federal and state laws. There are many complex reasons for this.

Money is one of them. Under the federal Individuals with Disabilities Education Act (IDEA), services are supposed to provide the "specially designed instruction" that meets the needs of students with disabilities. But in practice, the services of dedicated educators are almost always limited by school budgets.

At the same time, money plays another, more pernicious and ultimately more decisive, role in the shortcomings of special education: Most parents lack the means to assert their rights under IDEA and Maryland law and to challenge the system's failures. This parental powerlessness is obscured by occasional media stories highlighting lawyers representing well-to-do parents who seek expensive private school placements at public expense, usually for students with the most severe disabilities.

But such challenges are a tiny fraction of instances in which parents are dissatisfied and frustrated. Most students with disabilities in Maryland and nationwide come from significantly poorer families than the general student population, and they lack the wherewithal to confront the superior resources of the school district. This includes their inability to pursue "due process" administrative appeal hearings if they disagree with the school system.

Such parental powerlessness is the backdrop to bills pending in the General Assembly that would place the burden of proof in administrative hearings on school systems rather than on parents. The bills stem from a divided U.S. Supreme Court opinion in 2005, Schaffer v. Weast. The court held that under federal law, the burden rested on the parent, but the ruling made clear that states were individually free to impose the burden on school systems — and numerous states do.

Maryland, to its discredit, is not one of them, perhaps in part because the Schaffer case involved the Montgomery County school system. But that is no excuse. Rather, the General Assembly has not acted because of the muscular opposition of local school systems that want to preserve their substantial advantage in administrative hearings.

The Supreme Court decision siding with school districts was partially grounded in Justice John Paul Stevens' concurring opinion that "we should presume that public school officials are properly performing their difficult responsibilities" under special education laws. But this presumption is totally out of touch with the realities of special education, and it ignores the imbalance in power between parents and schools.

Justice Ruth Bader Ginsburg, in dissent, pointed out that school districts are resistant to challenge and command huge advantages: "the school has better access to relevant information, greater control over the potentially more persuasive witnesses (those who have been directly involved with the child's education), and greater overall education expertise than the parents." Further, the costs of administrative appeals (lawyers and expert witnesses) are trivial to school system budgets while beyond the purse of the great majority of parents. And pro bono lawyers for parents in appeal cases are almost never available.

The burden of proof — to present sufficient evidence and to convince the administrative judge of the validity of the appeal — sounds like a minor legalistic matter. But it has the power to tip the scales of justice one way or the other. Often, the evidence relies on subjective judgments, and administrative judges are already predisposed to defer to the supposed specialized knowledge and experience of educators.

But as Justice Ginsburg noted, "school districts striving to balance their budgets … will favor educational options that enable them to conserve resources." In other words, in violation of their legal responsibilities, schools will balance their budgets in part on the backs of vulnerable students with disabilities.

The burden-of-proof legislation in the General Assembly is only a small reform. But it will help to balance the scales of justice in administrative hearings and will send a larger message that school districts must do more to bear the overall burden of improving special education. At the least, the legislation will take one burden off the backs of students with disabilities and their parents.

Kalman R. Hettleman is a former member of the Baltimore school board and former state human resources secretary. His email is

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