Special Education:

Shifting The Burden Of Proof

Earlier this month, the state Board of Education put off a final decision on its overhaul of Connecticut’s special education regulations when board members concluded they did not fully understand the potential impact on special education students of a proposal to shift the burden of proof away from school districts and on to parents in due process hearings on disputes over needed services. The state board decided to wait until March to see the results of an independent study of the proposal.

The regulation review is the first comprehensive effort to update the state’s special education rules since the 1980s, and the state board is considering a number of regulation revisions suggested by the Department of Education, many of them technical revisions to reflect changes in state and federal law. The “burden of proof” change is not among the department’s proposals. It has come largely from the school districts themselves, aided and encouraged by regional educational service agencies like the Cooperative Educational Services, which is coordinating school districts in Fairfield County to pressure the state Board of Education to make the change. Proponents have tried unsuccessfully to get the change written into law. Legislators, however, sensing little public interest and much special interest in placing additional burdens on parents of students with special needs, apparently have no appetite for such legislation.

Last week, when Newtown’s Board of Education voted 6-1 to join the effort to shift the burden of proof to parents, both of Newtown’s state representatives, Democrat Christopher Lyddy and Republican DebraLee Hovey, voiced their opposition to the move. One local parent and special education advocate put it this way in an online discussion of the proposed change, “Who profits? Not children, I assure you.”

The school board and administrators are a little sensitive about arguments suggesting this issue comes down to money vs children. Superintendent of Schools Janet Robinson last week assured the school board that the district wants the best education for its students, noting sarcastically that people seem to believe “the big bad school districts” use special education due process hearings as a tool to avoid spending money. It is not hard, however, to see how that belief comes to be, when the district’s stated rationale for trading burden for advantage with parents in special education hearings is to save money from “frivolous lawsuits” that grow out of the hearing process.

We are not convinced there is much frivolity in being the parent of a child with special needs, especially when a school district denies requested services. Families of children with developmental problems and learning disabilities already have a significant draw on their resources that most families do not have. Heading into a hearing against a school district with a battery of educators and experts on the payroll to make their case is tough enough. Add to that the burden of hiring your own experts to prove them all wrong tilts the playing field so steeply that a due process hearing  for parents and their children becomes a quixotic challenge.

We are reassured that the state Board of Education is showing more caution on this matter than the Newtown Board of Education. Waiting until March for an independent review of the regulation change should bring a better understanding of the issues involved, and, we hope, a set of special education regulations that truly are more about children than money.