June 12, 2017

Pennsylvania Senate Education Committee

RE: Senate Bill 541

Dear Senator,

On behalf of the 4,500 elected officials who govern the commonwealth’s public school districts, we request your opposition to Senate Bill 541, sponsored by Senator Pat Browne. The proposal returns the burden of proof in special education due process hearings to the school district regardless of which party raises the dispute. PSBA believes that Pennsylvania should maintain the burden of proof standards as recognized by current federal and state court practice. This should include retaining the authority of a court to award reasonable attorney fees to families and schools, as determined with each individual case.

As background, school districts follow federal and state laws as well as the courts in providing programs and services for student with special needs. The overarching law is the federal Individuals with Disabilities Education Act (IDEA), which requires districts to offer each child identified as having a disability with a Free, Appropriate Public Education (FAPE). Each identified child receives an Individualized Education Program (IEP) that offers FAPE through specially designed instruction and related services to meet the needs of the child. An IEP must be reasonably calculated to enable the child to receive meaningful educational benefits.

IDEA provides a framework to enable states and school districts to collaborate with families of students with disabilities to identify and serve them, and to afford due process procedures for addressing disputes. In 2005, the U.S. Supreme Court addressed the issue of who has the burden of proof in an administrative hearing conducted under IDEA. In Schaffer v. Weast, 546 U.S. 49, 377 F.3d 449 (2005), the Court determined, based on the statutory language and intent of Congress to follow the usual assignment of the burden of proof, to place the burden of proof on the party seeking relief (party who requested the hearing) in IDEA-based due process hearings.

The Court noted that plaintiffs ordinarily bear the risk of failing to prove their claims, and listed examples of the claims for which this rule holds true: civil rights claims, Constitutional claims, claims brought under the Americans with Disabilities Act, etc. Claims in which the entire burden of persuasion is placed on the opposing party at the outset of a proceeding are extremely rare.  The Court held that absent some reason to believe that Congress intended otherwise, the burden of persuasion lies where it usually falls, upon the party seeking relief.

Looking to the evolution of IDEA, the Court identified the extraordinary expense of litigation, as well as the emphasis placed on reducing administrative and litigation costs and the chance afforded parties the opportunity to resolve issues prior to litigation, thereby allowing funds to be allocated to the education of students. Importantly, the Court also rejected outright the notion that the actions of a school district is presumptively invalid, until a school district proved otherwise.

The Supreme Court also addressed the concern that the playing field should be leveled, and parents should not have the burden of establishing facts which likely are within the knowledge of a school district. Rejecting this argument, the Court said that Congress has leveled the playing field for parents by designing under IDEA a comprehensive set of procedural safeguards, which include the obligation to explain to parents how to sue districts and the obligation to provide all the documentary and testimonial evidence required to do so.

In addition, there are other practical reasons to maintain the current burden of proof standards. Prior to the Schaffer decision, districts did not have a clear understanding of the claims against them. For example, a district may be told at a hearing that the IEP for a certain student was not appropriate, but was not given any detail as to why that was the case. IEPs can exceed 30-40 pages in some cases, providing a hay stack in which one or more needle-sized issue might lie. This would leave districts attempting to identify and address the parent’s issues, without knowing where or how many exist, because of course, the parents do not have to explain themselves until after the district puts on its case, at which time their complaints evolved in response to the district’s case.  Moreover, although IDEA sets forth a complaint procedure, districts still do not have a clear picture of the nature of the complaint. It is not until parents put on their case that the details of their dispute become clear, at which time, the district’s opportunity to prove its innocence has already occurred. How can districts be expected to bear the proof when they do not know what they are responding to?

The Schaffer v. Weast decision has not had a negative impact in Pennsylvania. In fact, it has had virtually no effect since 2005 on the rate or outcome of due process in Pennsylvania, which continues to have one of the highest rates of due process in the nation. (In 2015-2016 school year there were 822 due process complaints and 462 mediation cases filed.) Annual statistics reported by the state Office for Dispute Resolution consistently demonstrate that parents win outright about half of the hearings that are litigated to a conclusion. Further, parents win on at least one issue they’ve raised at a far greater rate than that, which enables them to recoup some or all or their attorney's fees from the public school.

The current system achieves the right balance, and it is working as the Court intended for parents and districts. Creating a system in which districts are guilty until they prove themselves otherwise does not level the playing field or make the system more fair. Litigation under IDEA has become increasingly complex and expensive. The provisions of Senate Bill 541 will likely encourage more litigation against school districts that will be forced to incur significant costs in bearing the burden of proof in every case. Taxpayer dollars are more appropriately used in the regular and special education classrooms.

For these reasons, PSBA opposes Senate Bill 541. I appreciate your time and attention to these matters. If you have any questions or concerns, please feel free to contact me at (717) 506-2450 x3337.



John M Callahan, Assistant Executive Director

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