On January 13th Governor Corzine signed into law a bill for which disability and education advocates fought long and hard. Now a part of New Jersey’s Special Education Statute, the bill places the burdens of proof and production on school districts in special education due process hearings.

The Education Law Center (ELC), working together with the New Jersey Special Education Practitioners, and ultimately working together with a diverse group of advocates who formed the Coalition on Fairness in Special Education, conceived of this legislation in response to outrage at the effects of the United States Supreme Court decision that allowed the burden of proof to be placed on children with disabilities. ELC and its colleagues then drafted the bill’s ultimate language, testified at legislative hearings, educated the public about the bill and lobbied hard for its passage.

The new law will return the burden of proof to school districts which carried that burden since 1989 when the New Jersey Supreme Court decided Lascari v. Board of Education of Ramapo Indian Hills. The law will also ensure that the burden of production clearly rests on school districts. 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.

In 2006, 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. determined that there was no state law requiring placement of the burden on districts. The L.E. court then interpreted the 2005 United States Supreme Court decision in Schaffer v. Weast to require placing the burden on the party – usually the children -- seeking a change in the status quo. This meant that for the past two years, more often than not, it was the children who were required to bear the burden of proof, and it made prevailing at hearings exceedingly difficult for the children, especially for those unable to afford attorneys.

Placing the burden on school districts simply requires 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. Returning the burden to school districts does not unduly burden districts or tax payers, as it ensures that tax dollars are being spent on effective programs and enhances district accountability.

The Senate and Assembly Education Committees voted unanimously in favor of the bill, and the full Senate and Assembly passed the bill by wide margins in the "lameduck" session, putting New Jersey at the forefront of national efforts to place the burden of proof on school districts. "When the community comes together to fight the good fight for what is needed for our children, good can come out of it, and it sure did this time," said ELC attorney Ruth Lowenkron, elated and relieved about the new burden of proof law.

Prepared: February 5, 2008

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