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Testimony of Jeff Rosen before the Maryland Senate on the Burden of Proof in IDEA Due Process Hearings

Thursday, February 28, 2013

Testimony of Jeff Rosen

Chairperson, National Council on Disability (NCD)

Senate Education, Health, and Environmental Committee

Maryland State Legislature

Legislative Hearing, Re: SB 691
Burden of Proof in Due Process Hearings for Students with Disabilities

Thursday, February 28, 2013

Miller Senate Building

1:00 P.M.

Chairwoman Conway, Vice Chair Dyson, and Members of the Maryland Senate Education, Health, and Environmental Committee:


Thank you for the honor and opportunity to testify before you today about Maryland Senate Bill 691, regarding the burden of proof in due process hearings for students with disabilities. My name is Jeff Rosen and I am proud to say that I am a life-long Marylander. I have three children who all attended public schools in Maryland

All parents, regardless of the nature of their child’s disability or their socio-economic status, have been adversely impacted by the shift of the burden of proof on them, to the detriment of all of our children. It is time to right the balance by placing the burden of proof on school districts given the greater resources and information available to them regarding a child’s education. 

I am the Chairperson of the National Council on Disability (NCD), an independent, nonpartisan federal agency that provides the Administration and the U.S. Congress with thoughtful and timely analysis and recommendations to inform policy development, revision, and enforcement efforts. As a federal voice for 56 million Americans with disabilities, including students with disabilities and their families, NCD is committed to advancing policy solutions that create a more inclusive country in which all Americans have equal opportunities to contribute to society. NCD was initially established in 1978 as an advisory board within the U.S. Department of Education (Public Law 95-602). The Rehabilitation Act Amendments of 1984 (Public Law 98-221) transformed NCD into an independent agency and required NCD to provide expert advice to Congress and the Administration. Changes were also made to NCD’s statutory mandate by the Rehabilitation Act Amendments of 1992 and 1998 and the Education of the Deaf Act Technical Amendments of 1993.

NCD’s Position on Burden of Proof

NCD has closely examined education policies for and outcomes of students with disabilities for several decades. Nearly 13 years ago, NCD issued a report titled Back to School on Civil Rights, in which the agency found that federal efforts to enforce the Individuals with Disabilities Education Act (IDEA) had been inconsistent and ineffective, noting that the burden of enforcement too often falls on parents, who must rely upon formal complaint procedures and due process hearings to obtain the appropriate services and supports to which their children are entitled under the law.

In  2005, five years after the Back to School report, when the matter of who bears the burden of proof in due process hearings under IDEA was pending before the Supreme Court, NCD provided its analysis and position on the matter, stating that while IDEA does not specify whether parents or school districts have the burden of proof in special education litigation, NCD believed that school districts, not parents, should bear the burden of proof in issues about Individualized Education Plans (IEPs), placement, eligibility, and other matters related to an appropriate education.

The Supreme Court decision came a few months after NCD issued its position. In it, the Court found that the burden of proof belongs with the party that is seeking relief, meaning that parents bear the legal burden of proving that a school system’s individualized education plan for their child will fail to provide an “appropriate” education, to which all students with disabilities are entitled under the Individuals with Disabilities Education Act (IDEA). NCD views this as an unfortunate and undesirable outcome.

Despite the outcome, NCD continues to maintain its 2005 position that school districts should bear the burden of proof in issues about IEPs, placement, eligibility, and related matters. We are, therefore, supportive of the intent of SB 691, which seeks to establish the same.

NCD bases its position regarding burden of proof upon the intent of applicable federal law, sound analysis of case law, and consistency with overarching policy goals. I will briefly summarize those arguments here, but a more detailed analysis of the justifications of our position is available in our policy position paper, Individuals with Disabilities Education Act Burden of Proof: on Parents or Schools?, on NCD’s website at: /publications/2005/08092005.  

Intent of Federal Law

The two purposes of IDEA are to provide a child with a disability with a free appropriate public education (FAPE) that is designed to meet the child’s unique needs and prepare the child for “further education, employment, and independent living;”1 and to protect the rights of children with disabilities and their parents.2 In order to accomplish these purposes, it is imperative that school districts, not parents, bear the burden of proof regarding issues related to FAPE.

IDEA, formerly known as the Education for All Handicapped Children Act (EAHCA), was an outgrowth of two significant catalyzing cases in special education law – Pennsylvania Assn. for Retarded Children (PARC) v. Commonwealth of Pennsylvania, 334 F. Supp. 1257 (E.D. Pa., 1971) and Mills v. Board of Education of District of Columbia, 348 F. Supp. 866 (D. DC 1972). The Mills case focused on procedural safeguards, and the ruling in Mills formed the basis of the procedural safeguards in IDEA 2004 at 20 U.S.C. §1415.

In delivering the Supreme Court’s decision in Schaffer, Justice O’Connor stated that “absent some reason to believe that Congress intended otherwise,” the burden of proof should be “’where it usually falls, upon the party seeking relief.”3 NCD believes that there is concrete and compelling reason to believe Congress intended otherwise. In fact, one needs only to study the Mills case to resolve any confusion about Congress’s intent.

Following the PARC and Mills cases, Congress began an investigation into the status of children with disabilities and introduced legislation a short time later, in which they noted their discovery that millions of children with disabilities were not receiving an appropriate education. During this process, Congress found, “It should not…be necessary for parents throughout the country to continue utilizing the courts to assure themselves a remedy…”4 When introducing the legislation, which when reauthorized years later became known as IDEA, Congressional intent was summarized this way: that all children would “have a right to education, and to establish a process by which State and local educational agencies may be held accountable for providing educational services for all [ ] children.”5 Indeed, when Congress passed EAHCA into law in 1975, it included an elaborate system of checks and balances called “procedural safeguards,” designed to protect the rights of children and their parents. As a part of protecting their rights, the statute did not assign the burden of proof to parents in disputes.

Brief Overview of Case Law

The case law pertaining to Congressional intent has already been mentioned (Mills and PARC), and the case law prior to the Schaffer case was split among circuits regarding who bears the burden of proof under IDEA based on competing principles. Should the party taking issue with the terms of an IEP bear the burden of showing why the IEP is not appropriate? Or, should the party that prepared the IEP and has greater resources and expertise bear the burden of proving its appropriateness?

In instances in which a statute is silent as to which party bears the burden of proof in a dispute, as is the case in IDEA, Supreme Court case law presents several guideposts for determining the answer. Those guideposts include which party holds the position of advantage (Tinker v. Midland Valley Mercantile Co., 231 U.S. 681 (1914)); the policy of the statute(Tinker); so that justice shall be done (Campbell v. United States, 365 U.S. 85 (1961); a question of policy and fairness(Keyes v. School Dist. No. I, 413 U.S. 189 (1973)); consideration of the private interest affected by the official action (Matthews v. Eldridge, 424 U.S. 319 (1976)); consideration of the risk of an erroneous deprivation of such interest through procedures employed (Matthews); consideration of the Government’s interest, including fiscal and administrative burdens that additional or substitute procedural requirement would entail (Matthews); which party has superior access to the proof(International Brotherhood of Teamsters v. United States, 431 U.S. 324 (1977); and which party is most likely to have the information (Concrete Pipe & Roads of Cal., Inc. v. Construction Laborers Pension Trust, 508 U.S. 602 (1993)). 

From Tinker to Concrete Pipe, cases have been consistent in assigning the burden of proof to the party more likely to have access to the information that explains their actions. The argument against this shift, as expressed in Matthews, relates to the interest, i.e., receiving an education, to the harm if there is a risk of loss in acquiring an education, and the economic burden if an erroneous ruling is issued and a better education is provided at a greater cost.

In Tinker, Justice Holmes said that the policy of the statute and position of advantage is the key. In Campbell, the Court looked at which party had the advantage to determine what was necessary to ensure that “justice shall be done.” The party with the advantage had the burden. In Keyes, the Court explained that the answer “is merely a question of policy and fairness based on experience in different situations.” In Matthews, the Court looked at the Due Process Clause of the Fifth Amendment and concluded that three factors must be considered: the private interest that would be affected, the risk of an erroneous deprivation of such interest, and the financial burden. International Brotherhood placed the burden on the party that “was in the best position to show why” an action was or was not taken because that party “knew best what those factors were and the extent that they influenced the decisionmaking process.” Concrete Pipe explained that “It is indeed entirely sensible to burden the party more likely to have information relevant to the facts . . .” In that instance, the Court explained that, despite the omission of language assigning the burden of proof to the employer, “Congress intended to shift the burden of persuasion to the employer . . .”

When Congress enacted the EAHCA of 1975 and established the requirements for “Prior Written Notice,” Congress intended to provide detailed procedural safeguards for children and their parents. Congress intended that children with disabilities would be provided with a free, appropriate public education. Congress intended that school districts would provide clear written notice whenever they proposed to change a child’s educational program. Congress intended that if a school district denied a parent’s request for additional or changed services, the school district would provide the parent with clear written notice that included:

(B) an explanation of why the agency proposes or refuses to take the action and a description of each evaluation procedure, assessment, record, or report the agency used as a basis for the proposed or refused action;
. . . 
(E) a description of other options considered by the IEP Team and the reason why those options were rejected; and

(F) a description of the factors that are relevant to the agency’s proposal or refusal.6

Congress realized that school districts have the position of advantage and are in the best position to show why an educational program is or is not provided. Congress was aware that school districts are aware of the factors that affect the educational decisionmaking. Could Congress have intended that the school district explain why they proposed or refused to take action, but in the event of a dispute, shift the burden to the parent to show why the school district’s plan was not appropriate? Could Congress have intended that the statutory requirements were met by mere notice, without any obligation to prove that the school’s proposal was appropriate? Given decades of non-enforcement and non-compliance by the U. S. Department of Education and the State Departments of Education and Local Education Agencies, as described by NCD in Back to School on Civil Rights, is it reasonable to assume that Congress now intends to shift the burden of proof to parents, even though “parents are still a main enforcement vehicle for ensuring compliance with IDEA?”7

Overarching Policy Goals

The policy of IDEA (Tinker) is clear – to provide a child with a disability with a free appropriate public education (FAPE) that is designed to meet the child’s unique needs and prepare the child for further education, employment, and independent living.

The interest at stake (Matthews) is an education, and an education should not be taken lightly in any instance. In Brown v. Board of Education, 347 U.S. 483, 493 (1954), the Supreme Court held that “Today, education is perhaps the most important function of state and local government…” Deprivation of an appropriate education causes illiteracy, unemployment dependency, and crime, in absolute contravention to the goals of both IDEA and many other disability rights laws.

Statistically, families of children with disabilities experience significantly higher rates of poverty and have less education than the population as a whole. School districts, not parents, have the position of advantage (Tinker). School districts, not parents, have superior access to the proof and information that an IEP, placement, or related matter is appropriate (International Brotherhood and Concrete Pipe). And it is for these and the aforementioned reasons that the school districts should bear the burden of proof in due process hearings under IDEA.


NCD supports the intent of SB 691 in placing the burden of proof on school districts in due process hearings under IDEA. We likewise urge the Maryland legislature to continue to pay mind to students with disabilities and their families regardingall of their very legitimate concerns, seek out their first-hand experiences to inform policy development, and commit to meaningful enforcement of existing laws and safeguards.

Thank you for the opportunity to testify before you today.

[1] 20 U.S.C. §1400(d)(1)(A)

[2] 20 U.S.C. §1400(d)(1)

[3]  Schaffer v. Weast, 546 U.S. 49 (U.S. 2005)

[4] United States Code Congressional and Administrative News 1975 (USCCAN) at page 1433.

[5] Id., at page 1427.

[6] 20 U.S.C. §1415(c)(1) - IDEA 2004

[7] National Council on Disability, Back to School on Civil Rights (2000)

An official website of the National Council on Disability