Foundation's Legislative Work
Burden of Proof
Congress enacted the IDEA to ensure that all students with disabilities receive a free appropriate public education (FAPE). The law does not leave it to parents to apply for this education. Instead, the law requires that districts identify, locate, evaluate, and provide FAPE to students. THE BURDEN IS ON THE SCHOOL TO PROVIDE THE APPROPRIATE EDUCATION.
When there is a disagreement related to the IDEA between parents and the school district, parents only recourse is to file due process. This involves an administrative hearing process, not a typical court case.
In MO, the burden of proof that the district is not meeting IDEA requirements lies on the parents. Parents do not have full access to documents, school information, and experts. With no pre-trial discovery, parents cannot interview teachers ahead of time, while the school district can. Parents cannot often afford lawyers and in MO, few lawyers will represent the student or parents in due process cases.
Since schools have the responsibility under IDEA of providing a Free Appropriate Public Education (FAPE), they should have the responsibility of proving that FAPE is being provided when in question.
On December 16, 2021, Rep. Travis Smith prefiled HB2010, which would place the burdens of proof and production on school districts in due process hearings for children with a disability. Below is a link to the House's information regarding HB2010, where you can read the full language of the bill. Rep. Smith is planning to file the legislation again next session. This one-page legislative brief outlines the legislation.
Some states are requiring that school districts have the burden of proof.
● School systems have full access to records, teachers, educational experts, therapists.
● School systems are almost always represented by counsel.
● Federal law imposes an affirmative obligation on school districts to provide an appropriate education to children.
● School systems have an obligation to provide the tools and processes necessary for an appropriate education and should be required to prove the effectiveness of their actions. (copaa.org/page/BOP)
No harm comes to school districts from requiring them to bear this burden in order to reinforce and protect parents’ procedural rights and involvement in developing the IEP. Since the school district is expected to support and justify its proposals it makes in meetings with parents, who are equal members of the IEP team, the school district should already be prepared to present that very same information to and persuade a neutral fact-finder
States with Burden of Proof statutes: Connecticut, New Jersey, New York, Alaska, Delaware, Georgia, Minnesota, West Virginia, New Hampshire, Washington DC
Source: COPAA.org