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Special Education Burden of Proof Bill Returns to MD Legislature

Special education students in Maryland receive an individualized education program, called an IEP, detailing the services that will be provided to them in order to accommodate for their respective needs. Maryland schools have the ability to change IEPs without parental consent; if a parent requests legal due process on what a school system provides in an IEP, the parent must provide the burden of proof. Burden of proof is the obligation to prove allegations when taking legal action.

State Senator Karen Montgomery, who represents much of eastern Montgomery County, believes placing the burden on parents “is both undemocratic and unfair.” Although bills to change this have failed in past years, Senator Montgomery is now pushing a new bill to remove the burden on parents.

“The reason I would like to put the burden of proof back on the school board is… so we can have fewer conflicts… and not end up in court as much,” Senator Montgomery explained to the MoCo Student.

Following the Supreme Court case Schaffer v. Weast, which arose out of Montgomery County, the burden of proof is usually placed on parents, but may be changed by states. States are free to pass their own laws defining the burden of proof; several states, including New York and New Jersey, have since moved the burden away from parents and onto school systems.

Many parents do not have the same resources to argue their case in court, as opposed to school systems which generally have greater resources and access to special education lawyers.

“We do not take into consideration the fact that some of the parents are quite poor,” Senator Montgomery noted. “They cannot afford the kind of help they need.” Many parents are usually unable to afford attorneys and experts while schools have professional representatives. School boards also have complete access to documents and information on students’ academic progress that parents do not have.

If placed on the school board, the burden of proof would have an impact on special education teachers as well.

“It is unfair to the teachers… in a normal classroom [where] kids have sometimes an acting-out problem, sometimes a severe learning problem and they do not have… an aid in the classroom. That teacher is punished because they say they often cannot handle the classroom,” explained Senator Montgomery.

In the past, the Montgomery County Education Association, Montgomery County’s main teacher’s union, has opposed legislation to place the burden of proof on the school board. According to MCEA president Doug Prouty, this opposition was due to the concern that the shift would increase paperwork for teachers.

Education officials in Maryland also say that it is unnecessary to place the burden of proof on the school system because complaints are often resolved through mediation before they reach court.

Prouty believes that shifting the burden of proof would decrease resolutions through mediation and increase the number of parents wishing to seek out legal hearings, which would raise the school system’s legal costs.

William H. Fields of the Maryland Office of the Attorney General believes that making schools defend their IEPs in legal action would “cut down on the collaborative process[es]” of schools and parents. Fields stated that, by shifting the burden of proof, it is “assume[d] the school system has done… wrong.”

There have been numerous movements in Maryland to place the burden of proof on schools boards, but none have been successful so far.

Article by MoCo Student staff writer Wafa Jawad of Clarksburg High School

About The MoCo Student

In 2012, Student Member of the Board of Education John Mannes created a countywide press network to help build a conduit to share fresh and relevant information written by youth to the wider Montgomery County student body.

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2 Responses to Special Education Burden of Proof Bill Returns to MD Legislature

  1. Julie Reiley Reply

    February 23, 2015 at 8:41 pm

    Mr. Fields should look at the experiences of other states, New York and New jersey, which ended up with fewer hearings after their bills passed. And check out the DC Appleseed study that shows increased collaboration when SD not parents have the burden of proof.

  2. Troy Sampson Reply

    March 17, 2015 at 11:22 am

    We are smack dab in the middle of this mess here in PG County at Kenmoor Middle School. We had to hire an advocate who immediately saw what we didn’t see and now the burden of proof is on us. We have asked questions during IEP meetings that they don’t have an answer for and when they do answer, we request the policy on it in writing only to get back nothing at all or something generic.

    Our son is on honor but yet cannot come home in the evenings and give us the basics of what he has learned but yet he’s on honor roll.

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