States Beginning to Shift IEP Burden of Proof to Schools, not Parents

Parents and advocates consider the changes made in a few states successes for helping children with learning disabilities.

New Jersey legislators changed state law recently to shift the burden of proof to schools and school districts when there is a dispute over Individualized Education Plans (IEPs) with parents.

Parents and advocates support the new law, which goes against the policy put in place by the 2005 Supreme Court decision in Schaffer v. Weast. This decision mandated that the party that had the complaint (usually the parent) held the burden of proof.

Many believe the 2005 decision is unfair to parents, who do not have the expert resources that are often available to school districts, but who want to make sure that education plans are appropriate for their children. Making the burden of proof even more impossible for parents is a more recent Supreme Court decision which stated that schools did not have to reimburse parents for expert testimony-even if the parents won their case in the end.

The New Jersey law change came shortly after a similar law was passed in New York, and is in line with laws in other states like Illinois and Minnesota. Washington D.C. however, recently changed their law from one that placed the burden of proof on schools, to one that supported the Supreme Court ruling.

While it remains to be seen how these laws will affect the formation and litigation of IEPs, New Jersey State Sen. Stephen M. Sweeney (Dem) believes that the new New Jersey law will make school boards more willing to talk to and listen to parents.