Burden Of Proof In Due Process Hearings
by
Herbert D. Hinkle, Esq. and Ira Fingles, Esq.
Hinkle & Fingles, Attorneys at Law
2651 Main Street
Lawrenceville, New Jersey 08648
(609) 896-4200 or (215) 860-2100
On November 14, 2005, the United States Supreme Court issued a
decision in Schaffer v. Weast, concerning which side (school
districts or parents) should bear the burden of proof in special
education due process hearings. The Court ruled that the burden of
proof should be assigned to whichever party initiated the due process
hearing. Because most hearings are initiated by parents, this means
parents will usually bear the burden of proof. This is a shift from
the way due process hearings have been handled in Pennsylvania and New
Jersey for many years (the decision’s impact in New Jersey is unclear
due to a New Jersey Supreme Court decision requiring school districts
to bear the burden in all cases).
Many commentators have suggested that the Supreme Court’s decision is
a blow to parents of children with disabilities. In our experience, it
matters little which party bears the burden of proof. Hearing officers
or judges in special education cases have always made their decisions
based upon a “preponderance of the evidence;” in other words, the side
with more credible evidence to support its position should win. The
only time the burden of proof is important is where one party produces
no credible evidence to support its position, or if the evidence
produced by both parties is equal. Both of these situations are
extremely rare.
In our experience, parents did not fare any worse during the 1970's
and 1980's when the burden was on them, than they did after the rules
were changed to place the burden on school districts.
The following are things parents can do to increase their chances of
success if litigation is necessary (or minimize the likelihood that
litigation will even be necessary):
1. Secure a qualified independent evaluator/ consultant:
In most cases, it is virtually impossible for a parent to prevail
without having an expert witness to testify in support of their
position. An expert should review all relevant records, speak with
anyone with knowledge of the student and programs and services at
issue, and observe the student at home and school.
2. Ensure that all important communications are memorialized in
writing: Parents should send a letter to communicate anything
of significance to the District regarding the student. Parents should
also request that the District provide important communications in
writing. If the District refuses, parents should send a letter
confirming verbal information provided by the District.
3. Make sure that the student’s records accurately reflect the
“whole student”: Parents can and should provide written input
at all stages of the process setting forth their observations and
concerns regarding the student’s performance and functioning in the
home and community.
4. Don’t let emotions run out of control: It is natural
to become emotional or frustrated when disputes arise with school
districts. However, it is important to ensure everyone involved in the
process is treated respectfully. In due process hearings, school
districts sometimes exaggerate any emotional outbursts or personal
attacks made by parents, which can undermine the parent’s credibility
and distract attention from the real issues.
______
Herbert D.
Hinkle, his partner, Ira M. Fingles, and their colleagues, S. Paul
Prior and Valerie A. Powers Smith, maintain a statewide
law practice with offices in Lawrenceville, Marlton, and Florham Park,
New Jersey, and Yardley, Pennsylvania. They lecture and write frequently
on topics of law, aging, disability and estate planning and are available
to speak to groups in New Jersey and Pennsylvania
at no charge.
Comments and suggestions
for future articles should be mailed to: Hinkle & Fingles, 2651 Main Street, Suite A, Lawrenceville, New Jersey 08648-1012.
Copyright 2005
Herbert D. Hinkle. All rights reserved.
