During the 2015 legislative session, the Maryland General Assembly will once again have an opportunity to advance civil rights for children with disabilities. Elected officials in Annapolis can correct an injustice for families of special needs students by passing legislation shifting the burden of proof from parents to school districts in special education due process cases, as other states have. In last year's legislative session, despite hearing testimony from parents, advocates and students from across the state, the House and Senate ultimately failed to act in the best interest of students with disabilities.
Under the Individuals with Disabilities Education Act, children with disabilities are entitled to a free, appropriate public education. In order to meet this obligation, school districts provide special education and related services in an Individualized Education Program (IEP).
The IEP process should be a collaborative one, involving the school district and parents. However, a new IEP goes into effect every year, even if the parents disagree with it. Schools control all aspects of the plans, services and placements, and they can change them at any time without parental consent.
If parents disagree with the school, they have little recourse. They can initiate a due process legal proceeding in which they have the burden of proving their case by the weight or preponderance of the evidence. In these hearings parents are at a huge disadvantage. School districts have all of the power: They have knowledge of complex special education law, access to staff attorneys and outside counsel; they employ the teachers, therapists and educational experts responsible for the IEP; and they have full access to records, instructional materials and placement options — including how other children have fared at them.
In stark contrast, parents have limited resources, limited knowledge of their options and limited access to witnesses and information. Most cannot afford attorneys or the experts needed to prove their case. They may be denied access to placements, instructional materials, lesson plans and other vital information, and they are often subjected to aggressive tactics by school district attorneys. They are routinely placed in the untenable position of having to ask teachers to testify against the wishes of their supervisors. Given all of the obstacles they face, it is no surprise that in Maryland, parents lose more than 90 percent of these disputes. School systems have won cases despite putting on little or no evidence that the IEP meets the standard of a free, appropriate public education. In the end, when school districts prevail — not on the merits of the case but because of the parents' inability to meet the burden of proof — the children lose.
By shifting the burden from parents to school districts, Maryland can help balance the scales of justice. Burden of proof for a local school district is merely the requirement to demonstrate that the IEP it created provides a disabled child with the basic floor of opportunity, which is what the law requires. For parents, it would mean lifting the tremendous weight of trying to prove a negative against an entire school district. For students, having an IEP that provides a free and appropriate public education could mean the difference between graduating from high school, or not; attending college, or not; being able to live as an independent adult, or not.
Shifting the burden of proof is about accountability for schools and encouraging good faith collaboration with parents to avoid disputes. Currently, the lack of accountability is so lopsided that principals and school districts know they will lose only in the most egregious of cases that involve parents who can afford an attorney. All too often there is a take it or leave it attitude in IEP meetings over the services provided to children with disabilities. Low and middle income students suffer the most in these situations because their parents cannot afford to pay for the attorneys and other resources necessary to shoulder the burden of proof in a due process hearing. During the public hearings in Annapolis last spring, lack of accountability was a recurring theme. Parents and advocates testified about the enormous challenges they faced getting appropriate IEPs for their children and having the schools actually implement them if they did. When children with disabilities are denied vital educational services essential to their development, they fall further and further behind their typically developing peers. Substantial harm can occur to their social-emotional and physical well-being.
Maryland prides itself on being a progressive state but falls short when it comes to children with disabilities. The Maryland General Assembly must enact this basic civil rights legislation in order to promote justice for our most vulnerable members of society and their families. It is time to shift the burden of proof from the parents to the school districts, where it belongs. It is the only fair thing to do.
Jeanne Taylor is the Special Education Committee chairwoman for the Montgomery County Council of PTAs. Her email is frtjmt@yahoo.com.