Jul 14, 2006 3:09 PM
Memorandum to the Governor regarding Senate Bill Number 8354 by The Rules Committee and Assembly Bill Number 11965 by Assemblywoman Nolan entitled “AN Act to amend the education law, in relation to the burden of proof for appeal procedures for children with handicapping conditions”
This legislation is necessary in order to continue three decades of sound New York State policy that requires the school district to bear the burden of proof in an impartial due process hearing between a parent or person in a parental relationship and a school district arising out of a student’s special education program. This policy has been in place in New York since the inception of special education in 1976 and has served as an essential tool in protecting the rights of children with disabilities to a Free and Appropriate Public Education (FAPE), as guaranteed by Congress under the Individuals with Disabilities Education Act. The necessity of this legislation arises in the wake of a recent Supreme Court decision (Schaffer v. Weast, 546 U.S. Ct. 528, (2005) which declares that in the absence of an individual state statute to the contrary, the burden of proof in an impartial special education hearing will fall on the party challenging the Individualized Education Program.
For the past three decades, New York State has understood the overwhelming advantages that school districts have over parents including, but not limited to, legal resources and access to information and expertise pertinent to the provision of FAPE to a special needs child. By placing the burden of proof on the school district, the state provides a more level playing field in these hearings which best serves the interests of the children obtaining these services. Furthermore, districts are given an incentive to provide appropriate Individualized Education Programs (IEP) for their special needs students, with the knowledge that if a parent were compelled to question the appropriateness of the program, the district is legally responsible to prove that they are providing an appropriate IEP before an impartial judge. This practice has proven to be essential to parents of affected children who are concerned with the services their child is receiving but often find themselves lacking the resources and knowledge to challenge the school district.
The Schaffer v. Weast decision asserts that the matter of burden of proof should be left to the states to decide, and this legislation simply puts into statute what has already been the practice of the State of New York on this issue since the advent of special education 30 years ago. This safeguarding of the status quo will continue to encourage school districts to prepare appropriate IEP’s for students, and ensure the free and appropriate public education these students are guaranteed. This legislation makes no changes to what has already been taking place in this state, will not cause school districts to incur any additional costs, and is absolutely vital in order to maintain the balance between school districts and concerned parents in the event of an impartial hearing concerning the IEP of a child.
New York State United Teachers and its affiliate the United Federation of Teachers strongly urge the enactment of this bill.
Sincerely,
Stephen K. Allinger
Director of Legislation