The Burden of Proof in CT Special Education Due Process Hearings

Published on April 12, 2009 by Jennifer Laviano

Connecticut special education regulations assign school districts the burden of proving that they offered a Free and Appropriate Public Education (“FAPE”) to a child with special needs if a Due Process Hearing is commenced.  This is known as the “Burden of Proof,” and it is the source of a lot of controversy.

Recently, CT school districts, and their lobbying organizations, attempted to alter this statutory scheme, and instead have the Burden of Proof assigned to the party who requests the Hearing.  Functionally, this would place the Burden of Proof on parents of children with special needs, as the vast majority of Hearings are brought not by school districts, but by parents who are challenging their school district’s proposed program.

Parents, advocates, parent attorneys, and other interested parties spread the word, and very quickly mobilized to oppose this legislation.  Letters were written to the legislators, and individuals spent hours waiting to testify before the Education Committee at the Capitol.  It was not nearly as organized a group as we would have liked, but since we learned of the plan only days before it came up before the Committee, we didn’t have much choice.

Like most who wrote or testified, I pointed out to the Education Committee some important facts, including that CT has had this assigned burden for many, many years, and that even under the current framework the party who brings the Hearing (again, usually the parents) is required to present their case first in the Hearing, despite the Burden being on the school district.  Many families spoke to let the Committee know how very unlevel the “playing field” already is in disputes between parents and school districts.

It seems school districts were trying hard to focus the legislators on the fact that CT is in the minority of states that assign the Burden of Proof in Hearings to school districts, as opposed to the moving party.  My response was and is quite simple:  CT is a leading State in education, and always has been.  If we are going to be an “Education State” for children without special needs, then we better be sure we are not openly discriminating against children with disabilities by saying that their education is less important.

Luckily, this latest effort by school districts to alter the Burden of Proof was unsuccessful, but those of us who care about the opportunity for parents to access their rights will likely need to remain vigilant on this issue, as I doubt it’s going anywhere for long.