Making Sense of Mandates: Special Education's Burden of Proof

By Helene Biandudi

Rochester, NY – Every year new mandates are added to an already extensive list that school districts throughout the state are required to follow. But some educators say the real issue, when it comes to mandatory requirements in education, lies with Special Education. WXXI's Helene Biandudi reports on one unfunded mandate in particular that school districts say hinder the overall provision of special ed services, but parents may disagree.

"I don't know if burden of proof was a keystone or a turning point for us because now we didn't have to keep fighting," says Mary Ellen Dennis. Her son Eli was only three years old when she and her husband John began what they thought would be a simple process. They didn't know they were starting a seven year battle.

Eli, who is now 10, has what doctor's call an auditory processing disorder. His ears and his brain don't connect the way they should, and that makes it hard for him to follow oral instructions or remember what teachers say to him.

The Dennis's tried to get help for him at school, but met resistance. They moved him multiple times, to three different school districts. But he continued to struggle, particularly in reading and math.

Finally, they got a lawyer.

"Burden of proof came up and it was it was really that holy crow now we don't have to go through all of that angst to bring up the people to prove our case so really it was a relief," says Dennis.

Burden of proof. In legal circles that means whoever files a claim must bear the burden - meaning they have to find all the evidence needed to prove their case. But not when it comes to litigation like the Dennis's.

In 2007, New York State passed a law requiring school districts to bear the burden of proof in special education challenges.

Empire Justice Center attorney Jonathan Feldman represented the Dennis's when they challenged the Rochester City School District.

"If parents were forced to bear the burden of proof and they didn't have an attorney, they would really have no idea how to call witnesses, which witnesses to even put on," says Feldman. "They would really have almost no ability to bring a case."

he Dennis's say if school districts don't bear the burden of proof it's nearly impossible for parents to advocate successfully.

"It's just not going to happen," says Dennis. "A lot of parents, I mean we were not able to do it and there's a lot of parents and families just like us who have perhaps additional challenges and things going on in their lives and it's next to impossible it's not going to happen if it rests with the parents. Those kids are not going to have their needs met."

Feldman says low-income parents are at an even greater disadvantage than most.

"Low income parents can't go out and hire an expensive expert which they might need to win their case if they had the burden of proof."

Feldman says requiring school districts to bear the burden of proof simply levels the playing field.

But leveling that field for parents can result in costly repercussions for schools districts.

"One district in New York State found itself spending over $1million a year dealing with a series of burden of proof suits brought by a single family," says Jody Siegle, Executive Director of the Monroe County School Boards Assocation.

Siegle says burden of proof hearings can become very expensive.

First, there's the cost of building a case. In addition to legal fees, districts may have to bring in psychologists, special education experts, and other experts to testify on behalf of a district.

To avoid hefty fees, a district may decide to settle. But here's the catch, they're now paying for more special education services.

"Depending on how the case is resolved, a district may end up being obligated to provide services for a child that they don't believe are educationally appropriate," adds Siegle.

Siegle explains some parents, though well-intentioned, keep pressing for more and more services that aren't necessarily going to help their child.

"What one is looking for is first a way to meet the needs of the child, but sometimes you end up looking for ways to deal with the needs of adults," says Siegle.

Special education services aren't cheap. Siegle says districts typically spend 20-percent of their budgets on special ed services.

"New York State has really made special ed a very complicated process," says Siegle. "And burden of proof is one piece of that, but it's the piece that comes at the end of dealing with all the other 200+ regulations."