TRENTON, NJ –Public Advocate Ronald K. Chen released a report today urging the Legislature and Governor Corzine to pass legislation that would return New Jersey to its previous practice of requiring school districts to prove a student’s individual education plan is meeting the child’s needs when parents challenge that plan.

For 17 years, New Jersey operated under the appropriate policy that schools should bear this “burden of proof,” but a 2005 U.S. Supreme Court ruling changed that, making it the responsibility of the person who challenges the school to prove a school is failing to meet their child’s educational needs.

Unlike many other states, New Jersey’s policy was not codified into law and so the U.S. Supreme Court ruling effectively changed long-standing practice, weakening parents’ ability to ensure an adequate education for children with special educational needs.

In the report, Chen argued that it is unfair to place the burden of proof on families in these hearings because they lack access to information that could help them make their case and school districts are in a far better position to bear that burden. 

“The promise of a quality education for all children is integral to the American value system. Unfortunately, our educational systems have not always fulfilled their obligation to all children -- especially those with disabilities,” Chen said.  “Regrettably, parents of students with disabilities in New Jersey still frequently face an uphill battle in ensuring that an appropriate education is available for their children.”

Senators Joseph Doria, D-Hudson, and Steven Sweeney, D-Gloucester and Assemblymembers Joseph Cryan, D-Union and Joan Voss, D-Bergen, plan to introduce legislation to help fulfill this promise and require school districts to shoulder the burden of proof in evaluating a child’s education plan.

The IDEA is the major federal law governing special education services for students with disabilities. Under the IDEA, parents of students with disabilities have the right to initiate a due process hearing with their school district if they believe their child is not receiving an appropriate education.     

Although the IDEA does not specify who should bear the burden of proof in these hearings, the New Jersey Supreme Court declared in a 1989 court case that the burden of proof must be borne by schools. In November 2005, the United States Supreme Court ruled that unless state law mandates otherwise, the burden of proof lies with the party who brings a legal action, which in these cases is typically the parent since the educational plan is developed primarily by the school.    

“The shift that has resulted from the U.S. Supreme Court decision creates an often insurmountable obstacle for New Jersey parents seeking to enforce their child’s educational rights under the IDEA,” Chen said. “Low- and middle-income families in New Jersey who cannot afford to hire their own attorneys and must represent themselves are particularly disadvantaged in this process,”

“Our extensive study of this issue showed that parents have a difficult time getting the information they need to make their case in an administrative hearing, while schools already possess virtually all of the needed information, including educational expertise and all relevant records,” Chen explained.

The report further said that New Jersey administrative rules fail to provide parents with the same access to information as an individual would have in a typical trial. Instead, schools are only required to disclose evidence they intend to introduce in the hearing. 

“For example, consider a school that has an autism program with a proven history of success,” Chen said. “If the district was proposing to place a student in that program, they would likely introduce evidence showing the success rates. If, on the other hand, that same program had shown terrible outcomes in the past, the district would be unlikely to introduce that evidence and parents would have no way to prove the program was an inappropriate placement for their child.”

The Public Advocate also said that allocating the burden of proof to school districts would not place an undue burden on school districts or taxpayers, and would not result in an increase in the number of due process proceedings initiated by parents. 

“The IDEA expressly requires a school district to maintain a detailed account of Individualized Education Program (IEP) development and implementation,” Chen said. “If the educational plan developed by the district is truly adequate under the IDEA, a mere presentation of the already documented plan and progress should be sufficient to carry the burden of proof in these hearings. Very little additional work and resources should be involved.”

In addition, he said there are sufficient disincentives in place to ensure that families will not bring frivolous lawsuits in these cases. The IDEA allows school districts to recover attorneys’ fees from families who file unreasonable claims, and these cases are both financially and emotionally draining for parents.

“In the end, if a fair balance is not struck, we risk making decisions about the education of children with disabilities on incomplete records,” Chen said. “It is simply unacceptable that a child might be denied access to an appropriate education because a judge’s decision about the education plan is impeded by procedural rules that prevent the full and fair consideration of critical facts.”

Read the legislation on special education hearings.