On November 29th, the Education Law Center testified at a hearing of the Senate Education Committee in favor of S2604 which will place the burden of proof and the burden of production on school districts in special education due process hearings. The burden of proof refers to the burden of showing that one’s evidence is more persuasive than the evidence presented by the other party. The burden of production is the obligation to be the first party to present evidence to the court at the outset of a hearing.

The Education Law Center’s testimony, as well as the testimony of numerous other special education advocates, was well received by the Education Committee which unanimously voted in favor of S2604. The Senate Education Committee’s showing of support followed the unanimous vote of the Assembly Education Committee on companion bill A4076 . In May The Star Ledger strongly endorsed the legislation in an editorial on December 3rd.

S2604 and A4076 will return the burden of proof to where it had been since the New Jersey Supreme Court placed it on school districts in the 1989 decision of Lascari v. Bd. of Educ. of Ramapo Indian Hills Sch. Dist. The proposed legislation would also ensure that the burden of production clearly rests on school districts.

Despite seventeen successful years of school districts bearing the burden of proof, the Third Circuit Court of Appeals in L.E. v. Ramsey Bd. of Educ. in 2006 interpreted the 2005 United States Supreme Court decision in Schaffer v. Weast and held that the burden of proof no longer rested solely with school districts. This has meant that children with disabilities more often than not must now bear the burden of proof, and it has made prevailing at hearings exceedingly difficult for children with disabilities, especially for those who cannot afford lawyers.

Placing the burden on school districts would simply require school districts to show that they are providing a student with an appropriate education, consistent with federal and state special education law. It is easier for school districts to bear the burden than families, as the districts possess virtually all of the information regarding an educational placement. Reallocating the burden to school districts will not unduly burden districts or tax payers, as it will ensure that tax dollars are being spent on effective programs and will enhance district accountability.

ELC urges all concerned citizens to support A4076 and S2604. For more information, contact ELC attorney Ruth Lowenkron at rlowenkron@edlawcenter.org, 973-624-1815 X21 (Voice) or 973-624-4618 (TDD).

Prepared: December 5, 2007

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