TRENTON, NJ  –Public Advocate Ronald K. Chen urged an Assembly committee today 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.

The Assembly Education Committee approved the measure, A-4076, sponsored by Assemblymembers Joseph Cryan, D-Union and Joan Voss, D-Bergen. A companion bill, S-2604, sponsored by Senators Joseph Doria, D-Hudson, and Steven Sweeney, D-Gloucester, is under Senate consideration.

 “This legislation is not only consistent with the prior law in New Jersey, but is also consistent with basic principles of fairness,” Chen said. “By returning the burden of proof to schools, we’re simply requiring a school to produce the evidence needed to evaluate whether it has done its job.”

Chen noted that the new practice of placing the burden on parents is especially onerous for low and moderate income families, who lack the resources to hire attorneys to represent them and are often unable to navigate the legal system on their own. Schools, on the other hand, have immediate access to all the relevant information, Chen said. 

For 17 years, New Jersey had operated under the appropriate policy that schools should bear the “burden of proof” in hearings over the adequacy of a student’s special education plan. 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.

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.    

In February, the Public Advocate released a report urging the Legislature to restore the previous practice that required school districts to prove they are providing an adequate education.

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

“Under the IDEA, school districts are already required to maintain detailed records and documentation of educational plan development and implementation,” Chen said. “Since the school must already maintain all this documentation, bearing this burden should not create any additional financial drain and little impact on their operations, provided that the school is compliant with the requirements of the IDEA in the first place.” 

In addition, he said sufficient disincentives are in place to dissuade families from bringing 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.

“Critics suggest that parents would be more likely to file unworthy claims if the burden rests with the school,” Chen said. “There is simply no basis for suggesting that more parents will file frivolous claims or that this will create any additional financial strain on school districts.”

Read the Public Advocate’s report on the burden of proof in special education hearings