Md. lawmakers seek to flip burden of proof in special education disputes


MARYLAND – Right now, if you’re a parent of a special needs student in Maryland, and you think their school district isn’t serving them properly, it’s up to you to prove that in court. However, a pair of lawmakers are trying to reverse that burden of proof through proposed legislation.

Bearing the Burden

House Bill 294 would put that burden of proof in due process proceedings back on county school districts.

“The burden should be on the school system, to show by a preponderance of evidence, that they are essentially providing what is required, and that they’re doing what they should be, and doing right by that child,” said bill co-sponsor Delegate Vanessa Atterbeary. “Parents need a fair shot at trying to advocate for their kids. You cannot do that if you’re going up against an entire in-house legal system.”

Bill co-sponsor Delegate Mike Griffith says in many cases, parents simply cannot afford to spend their money and time fighting legal battles on behalf of their children. While the lawmakers believe school systems generally are serving children to the best of their abilities in most cases, they say it’s a different story for some.

“Say I’m a single mom with a kid at home, and have a full-time job, trying to advocate for my child, and you’re facing the school system, who has teams of attorneys and experts and mounds of data. It’s not a fair fight,” said Del. Griffith. “This is just an attempt to level the playing field a little bit, and give parents who don’t have the ability to advocate for themselves properly a fighting chance.”

Tried and True, Say Lawmakers

Similar legislation has already been passed in New York and New Jersey.

“The number of disputes actually went down. We can speculate as to why. My hypothesis is that the school system, knowing the burden of proof was on them, maybe took extra steps to try to resolve it before it escalated to [court proceedings],” said Del. Griffith. “We’ve seen, in the two states where this is law of the land, serious reductions in these types of disputes. That alone, obviously saves resources of folks who need it right now.”

Del. Atterbeary says it’s an issue that she’s heard about from her constituents for years. Now, a local version of the bill is on the books in Howard County. And, Del. Griffith says another local iteration is being considered in Harford County.

MSEA Concerns

However, the bill hasn’t come without some pushback. The Maryland State Education Association (MSEA) worries shifting the burden of proof will be unfair to individual special educators. MSEA President Cheryl Bost predicts it could also create divisive environments within school systems.

“Our educators do a lot of compliancy work where they have to prove that they are providing these services, because we know it’s critical to students’ success,” said Bost. “So adding, possibly, more work, more divisiveness in the atmosphere is not helpful. We want to be able to bring parents and educators together to provide these services. We don’t believe this is the answer.”

Bost adds that there are underlying issues that need to be addressed before lawmakers tackle this one. For example, Bost points to funding under the federal 1975 IDEA legislation, which she says isn’t up to the standards it created.

“It’s supposed to be funded at 40% [of the average per pupil expenditure for special education], and it’s not even at 20%. So, we believe this bill, and changing the burden of proof, is not going to help to provide better services for our students,” said Bost.

Instead of flipping the burden of proof, Bost says other solutions are possible. One, could be working to make class sizes more equitable, in terms of teacher to student ratio, says Bost. Another idea would be to hire data clerks to track students’ performance and needs.

“Our special educators have a ton of paperwork. Having data clerks would help take the paperwork off of their plates, so they can provide more direct services,”  said Bost.

Lawmakers Rebut

Both Del. Atterbeary and Del. Griffith refute that argument, however.

“None of the teacher’s responsibility is changing. So, it’s not putting an extra burden on them,” said Del. Atterbeary. “If the school boards start to put more pressure on teachers to make them prepare for litigation, then one, perhaps they do need to look at their practices, and they aren’t doing what they’re supposed to be doing. And, two, shame on the school board, because that’s not the teacher’s job.”

Del. Atterbeary says she is surprised by MSEA’s response to the proposed legislation. However, Del. Griffith says similar pushback is coming from educators on the Harford County version of the bill.

Despite the opposition, lawmakers say ultimately, they want what’s best for students, parents, educators, and administrators.

“This is a bipartisan bill that touches every corner of the state. And, it touches every child and family in this circumstance, “said Del. Griffith.

If the bill is signed into law, it would go into effect on July 1st, 2023.

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