October 21, 2010
OLR BACKGROUNDER: BURDEN OF PROOF IN SPECIAL EDUCATION DUE PROCESS HEARINGS
By: Judith Lohman, Assistant Director
James Orlando, Legislative Analyst II
This report provides background information and an explanation of the issue of “Burden of proof” in special education due process hearings in Connecticut and neighboring states. It updates OLR Report 2010-R-0054.
Special education due process hearings are impartial administrative hearings held to resolve disputes between parents and public agencies, usually school districts, over the evaluation or educational placement of, or individualized education program established for, a child requiring special education. Although such a hearing may be requested by either a parent or a school district, in practice, most are requested by parents.
Special education is governed by both federal and state law. Federal law generally establishes a child's right to special education and imposes the procedural requirements for states and school districts to implement that right. State laws must conform to federal requirements.
Although federal law requires due process hearings to resolve disputes, it does not specify which party to a hearing bears the burden of proof (i.e., is required to prove its claim that a special education program or placement is or is not appropriate for a particular child). In 2005, because the federal law is silent on this point, the U.S. Supreme Court ruled that the burden falls on the plaintiff (i.e., the party requesting the hearing) to prove his or her claims (Schaffer v. Weast, 546 U.S. 49 (2005)). At the same time, the Court declined to decide whether states could choose not to follow this rule. As noted by both the majority opinion and Justice Breyer's dissent in Schaffer, the question of who bears the burden of proof in administrative hearings should arise rarely, as it only comes into play when the hearing officer finds that the evidence is closely balanced, a relatively rare occurrence.
Connecticut State Board of Education (SBE) regulations adopted in 2000 place the burden of proof in all special education due process hearings on the school district. This means that, even when the parent is the plaintiff, school districts must prove that their special education decisions are appropriate.
Bills introduced in 2007, 2009, and 2010 sought to override the regulation to require plaintiffs to bear the burden of proof, but the Education Committee did not report favorably on the proposals.
New Jersey and New York both have statutes placing the burden of proof on the school district, while a Vermont regulation places the burden on the plaintiff. We found no statutes or regulations addressing the issue in Maine, Massachusetts, New Hampshire, Pennsylvania, or Rhode Island.
SPECIAL EDUCATION DUE PROCESS HEARINGS
State and federal laws require school districts to identify children with disabilities that affect their educational performance and provide them with a “free and appropriate public education” tailored to their individual needs (20 U.S.C. § 1400 et seq.; CGS §§ 10-76a to 10-76i). To meet this requirement, school districts must evaluate children referred for special education to determine if they are eligible and create an individualized education program (IEP) for each eligible child. The IEP establishes the student's educational placement and the educational and related services the school district must provide.
Under state and federal law, a parent may request a “due process” hearing before an impartial hearing officer if (1) the parent disagrees with a school district on his or her child's evaluation, placement, or IEP or (2) a school district fails to provide the child with a free appropriate education that meets his or her needs. School districts may also request such hearings when a parent refuses to consent to a child's evaluation or placement (CGS § 10-76h; 20 U.S.C. § 1415).
In Connecticut, special education due process hearings are held before impartial special education hearing officers appointed by the State Department of Education. Hearings are conducted according to procedures established in federal and state special education laws and regulations. Both parties to the hearing may be represented by legal counsel, present evidence and sworn testimony, and cross-examine witnesses. Decisions must be written and include both findings of fact and conclusions of law.
Once the hearing officer issues his or her decision on the matter, any aggrieved party may appeal it to state or federal court.
BURDEN OF PROOF
The federal special education law establishes detailed procedural requirements for special education due process hearings. But it does not specify which party, the parent or the school district, has the burden of proof in such a hearing.
U.S. Supreme Court Ruling
In 2005, the U.S. Supreme Court held that because federal law was silent on the issue, the standard legal default rule that the plaintiffs in a case bear the burden of proving their claims should apply. Thus, it ruled that “the burden of proof in an administrative hearing challenging an IEP is properly placed upon the party seeking relief” (Schaffer v. Weast, 546 U.S. 49 (2005)).
The Court noted that the term “burden of proof” has historically encompassed both “the 'burden of persuasion,' i.e., which party loses if the evidence is closely balanced, and the 'burden of production,' i.e., which party bears the obligation to come forward with the evidence at different points in the proceeding” (Schaffer, 546 U.S. at 56). Schaffer concerned only the burden of persuasion.
In its decision, the Court expressly declined to rule on whether a state law or regulation could, if the state wished, override the legal default rule. The Schaffer case involved a Maryland school district and, like the federal law, Maryland's state special education law and regulations take no position on the burden of proof issue.
In Schaffer, the Court noted that “very few cases will be in evidentiary equipoise” (546 U.S. at 58). In his dissent, Justice Breyer further noted that the burden of persuasion in this context is:
a relatively minor issue that should not often arise. That is because the parties will ordinarily introduce considerable evidence . . . [a]nd judges rarely hesitate to weigh evidence, even highly technical evidence, and to decide a matter on the merits, even when the case is a close one. Thus, cases in which an administrative law judge (ALJ) finds the evidence in precise equipoise should be few and far between (Schaffer, 546 U.S. at 68 (Breyer, J., dissenting)).
Connecticut Law and Regulations
Connecticut's special education burden of proof requirement is different from the one determined by the U.S. Supreme Court ruling. In all cases, Connecticut requires the school district or other public agency responsible for providing special education to prove its placement or program appropriate. This rule applies even when the parent requests the due process hearing. If, however, the hearing officer decides the school district's program or placement is not appropriate, any party seeking reimbursement for a unilateral placement or program (such as a parent asking to be reimbursed for private school tuition for the parentally-placed student) must prove that the unilateral placement is appropriate.
Connecticut's burden of proof requirement is not part of the special education due process statute (CGS § 10-76h). Rather, it is SBE's regulations that require that, “in all cases . . . the public agency has the burden of proving the appropriateness of the child's program or placement, or of the program or placement proposed by the public agency” (Conn. Agencies Regs. § 10-76h-14).
The regulations define the “public agency” as a local or regional school board, the state vocational-technical school system, a state agency unified school district, or any other state agency that is responsible for providing special education and related services to eligible children.
As noted above, the U.S. Supreme Court in Schaffer declined to address whether a state could overrule the default rule that plaintiffs in special education due process hearings carry the burden of proving their claims.
We surveyed the law in the other New England states, New Jersey, New York, and Pennsylvania. In 2008, New Jersey enacted legislation providing that the burden of proof falls on the school district (N.J. Stat. § 18A:46-1.1). New York enacted similar legislation in 2007, although New York also provides that the burden falls on parents or other persons in parental relation “seeking tuition reimbursement for a unilateral parental placement” (NY Educ. Law § 4404(1)). By regulation, Vermont allocates the burden of proof to the plaintiff (Code Vt. Reg. § 23220.127.116.11).
We did not find any statutes or regulations in Maine, Massachusetts, New Hampshire, Pennsylvania, or Rhode Island addressing the burden of proof in special education due process hearings.
In 2007, 2009, and 2010, the General Assembly's Education Committee raised bills to override the SBE's regulation and place the burden of proof in special education due process hearings on the party that requests the hearing. Since most due process hearing requests come from parents, this change would relieve school districts of the requirement that, when challenged, they prove the appropriateness of a special education placement or program.
In public hearings on the bills, school districts and municipalities supported the change, while the State Department of Education, parents of special education students, and advocacy groups for people with disabilities opposed it. The Education Committee took no favorable action on these proposals (2007 Raised Bill 7176, § 1; 2009 Raised Bill 1142, § 4; and 2010 Raised Bill 5425, § 3).