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Make Burden Of Proof Fair and Equitable

Why this issue is critical

The Supreme Court's Schaffer v. Weast (2005) decision harms 6.4 million children with disabilities and their families by placing the burden of proof on parents under the IDEA.


Congress enacted the IDEA to “ensure” that “all” children with disabilities were provided a free appropriate public education.  20 U.S.C. § 1400(d)(1) (2005).  Significantly, to ensure that the school district provided all children with disabilities an appropriate education, Congress did not leave it to parents to apply for their child’s appropriate education.  Instead Congress imposed an affirmative obligation on states and local school districts to identify, locate, and evaluate children, even those in private schools and prisons.  20 U.S.C. § 1412(a)(3); § 1412(a)(10)(A)(ii)[1]; These extraordinary requirements reflect Congress’ strong judgment that providing children with disabilities an appropriate education would best serve society’s interest.  20 U.S.C. § 1400(1) (2005); Rowley, 485 U.S. 176.[2] 


The IDEA administrative hearing process provides only limited access to information.  Parents cannot engage in the full range of discovery options that are available during a court trial.  This has serious implications for parents attempting to protect their child’s statutory right to a free appropriate public education.  The school system has a great deal of information that may be presented in the form of testimony or in documents that the parent may receive only five days before a hearing.  In the face of this information imbalance, having a parent have to face a school system lawyer at a hearing in order to exercise the parent and child’s disagreement with a school-system proposed action, a statutorily-granted right, is a David and Goliath scenario, but it happens repeatedly.  In many states, Goliath almost always wins, even when the parent is represented.

What is the Burden of Proof?

Burden of proof is the obligation to prove allegations which are presented in a legal action.

 Many states rightfully place the burden of proof on school systems.


  • 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.


 require that, “in all cases . . . the public agency has the burden of proving the appropriateness of the child's program or placement, or of the program or placement proposed by the public agency” (Conn. Agencies Regs. § 10-76h-14)

NJ.S.A. 18A:46-1.1 provides:  Whenever a due process hearing is held pursuant to the provisions of the “Individuals with Disabilities Education Act.” 20 U.S.C. 1400 et seq., chapter 46 of Title 18A of the New Jersey Statutes, or regulations promulgated thereto, regarding the identification, evaluation, reevaluation, classification, educational placement, the provision of a free, appropriate public education, or disciplinary action, of a child with a disability, the school district shall have the burden of proof and the burden of production.

NY - New York puts the burden on the district and also provides that the burden falls on parents or other persons in parental relation “seeking tuition reimbursement for a unilateral parental placement” (NY Educ. Law § 4404(1)).


ALASKA ADMIN. CODE tit. 4, § 52.550(e)(9) (2003)

D.C. MUN. REGS. tit. 5, § 3030.3 (2003)

DEL. CODE ANN. tit. 14, § 3140 (1999)

GA. COMP. R. & REGS.160-4-7.18(1)(g)(8) (2002)

MINN. STAT. § 125A.091, subd. 16 (2004)

W. VA. CODE R. § 126-16-8.1.11(c) (2005)


 What is the Impact of having the Burden of Proof on Families regardless of income?

  • Parents don’t have the same access to documents and experts and school information.
  • The IDEA does not provide pre-trial discovery - thus no right to interview teachers and other school professionals in advance—yet school systems have access to all of this discovery.
  • Many parents are unable to afford an attorney or experts- schools already have representation.
  • Schools “win” cases while presenting little or NO evidence in support of the IEP.

The challenge for most parents grappling with IDEA is compounded by the fact that many families of children with disabilities are poorer than the general population.

  • Families of children with disabilities have dramatically higher rates of poverty and are less educated than the population as a whole, and thus far less likely to prevail against a school system. 

    Parish, Rose et al.,Material Hardship in U.S. Families Raising Children with     Disabilities, (Council for Exceptional Children, Vol. 75, No. 1, pp. 71-92 (2008)).

  •  “There is a growing literature on the problem of economic disparities in the implementation and enforcement of the IDEA. Chief among the concerns in the literature is that wealthier parents use the private enforcement mechanisms more than poor parents do.”

  Eloise Pasachoff, Special Education, Poverty, and the Limits of Private Enforcement, 86 Notre Dame L. Rev. 1413, 1417-1418 (2011)

Nationally, children in poverty and in families that receive public assistance are more likely to be identified as having a learning disability. In 2013, 12 percent of children living in families below the federal poverty line were identified as having a learning disability, compared with eight percent of other children. Twelve percent of children living in families that receive welfare benefits were identified as having a learning disability, compared with seven percent of other children. Children living in families that receive food stamps are also much more likely than other children to be identified as having a learning disability. (11 percent, compared with six percent of other children in 2011).   http://bit.ly/1Q1LP8H 

Because of this lack of financial resources, many parents are simply unable to afford counsel, and may have difficulty paying to retain expert witnesses.

When the school district has developed the proposal at issue and because IDEA assigns primary responsibility for developing the educational program to the school district, the school district should have assembled the requisite evaluations and other data and presented them at the IEP meeting in support of its proposal.  To the degree the school district prepared such materials for the IEP meeting as it should have done, there should be little additional burden for it to assemble those materials and present its rationale and persuade an impartial factfinder that it has met IDEA’s substantive requirements.  Having failed to persuade the parents of the merits of its position, as the IEP team process hopes for, the school district is entitled to set forth its own proposal.  In that situation, where the school district has not obtained consensus, the school district should bear the burden of proof.    If school districts are not required to justify their proposals at a hearing when they fail to achieve a consensus at the IEP meeting will only encourage them to give short shrift to the parental participation requirements and procedural protections.  The ultimate impact is that children with disabilities will be deprived of educational programs that reflect the important input of the parents who know the child best.

Nor is there any harm 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.

What about Consent States?

A Review of States which are “consent” states: In a consent state schools are required to seek consent prior to initiating a change of services or a change of placement or a change in the IEP.  Generally, if a parent declines to provide consent then the school district would have to file for a hearing in order to implement.  The “filer” would then have the burden of proof in that action:[4]







Cal. Educ. Code § 56346; § 56506

Stay Put



Code Del. Regs. 14 900 The HRC shall develop a written form to be used to ensure that informed parental consent is obtained before implementation of specified behavior management procedures.


Fla. Stat. § 1003.5715

Change from diploma to certificate track and for placement in self-contained classroom


Kan. Admin. Regs. 91-40-27

Making a material change in services to or a substantial change in the placement


2005 MA Regulation Text 8501 603 CMR 28.00

Parental consent for a change of placement


Minn. R. 3525.2710 & - 125A.091

Stay Put


Mont. Admin. R. 10.16.3505

Parental consent for annual placement

New Hampshire

NH Rules Ed 1120.04, 1120.05, 1120.06.

Annual placement, changing disability classification, changing nature/extent of services



Parental consent for a change of placement


8 VAC 20-81-170

Any revision or change/termination of services

As of 2/17/2016


[1] See Weyrick v. New Albany-Floyd Co. Consol. Sch. Corp., 2004 U.S. Dist. LEXIS 26435, at *6 (S.D. Ind. 2004) (“IDEA does not rely on parents to come forward to ask for help.”). 

[2] Indeed, “[i]mproving educational results for children with disabilities is an essential element of our national policy of ensuring equality of opportunity, full participation, independent living, and economic self-sufficiency for individuals with disabilities.”  See id.

[3] Effective July 1, 2016: For cases involving the appropriateness of the IEP or placement or a proposed IEP or placement, the Burden of Production is still on the party requesting the hearing and must meet that burden before the public agency has to take on the burden of persuasion.

For cases involving reimbursement for a unilateral parental placement, the burdens (both production and persuasion) rests on the parent to prove the unilateral placement is appropriate.  The HOs are authorized to bifurcate the hearings.

[4] Maureen Van Stone, Esq., Project Director at Project HEAL, Kennedy Krieger Institute, Baltimore, Maryland, 2016.  





Burden of Proof

Item Name Posted By Date Posted
NY BOP Letter PDF (101.44 KB)  more ] Administration 1/7/2013
DC BOP Letter PDF (109.52 KB)  more ] Administration 1/7/2013
Hawai’i BOP Letter PDF (113.21 KB)  more ] Administration 1/7/2013
VA Burden of Proof Letter (2006) PDF (114.01 KB)  more ] Administration 1/7/2013
Schaffer v. Weast (2005) COPAA Amicus Brief PDF (1.26 MB)  more ] Administration 1/7/2013
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