Parents get boost on special ed rights

Public advocate wants districts to provide proof in complaints
Thursday, February 15, 2007
BY JOHN MOONEY
Star-Ledger Staff

Taking sides in the ongoing debate over special education rights, New Jersey's public advocate has called for the state to place the legal burden of proof on districts when facing parent complaints over the services that schools provide.

Public Advocate Ronald Chen said yesterday several legislators have agreed to introduce legislation that would accomplish that.

Two recent federal court decisions had put the burden of proof on the complaining party in special education cases, reversing the longstanding practice that had existed the last two decades in New Jersey.

But Chen agrees with many special education advocates who argue that parents are already at such a disadvantage taking on a school district, the state should enact its own protections.

"It just makes more sense for the districts to bear this burden," Chen said yesterday. "Many districts are very, very responsible in meeting their responsibilities, but there are others that are just not as responsive to parents' concerns.

"This will tell them they should do their homework and show they have done all they can," he said.

A small fraction of special education disputes in New Jersey ever reach court proceedings, often dealing with a child's school placement or the services made available. When they do reach a judge's decision, it is more often the districts winning, according to the state.

But even so, up until two years ago, New Jersey courts provided special protections for parents making the complaints and demanded districts prove their programs were adequate, citing their greater resources and access to documents and experts.

That all changed in 2005, when the U.S. Supreme Court put the onus on parents in a decision involving a Maryland case, and the 3rd U.S. Circuit Court of Appeals further affirmed it in 2006 in a case involving an autistic child in Ram sey.

Advocates maintained that neither case prevented the state from enacting a statute to protect parents, and they appealed to Chen's office to take up their stand. They said the federal decisions have only emboldened districts to challenge complaints and have further chilled parents' willingness to pursue their cases.

"We had been pushing the ad vocate to get involved, and we were really excited when he saw this as important," said Ruth Lowenkron, an attorney with the Education Law Center in Newark who helped lead the effort.

"We think this is really critical, and resurrected what should have been in place all along," she said.

School board attorneys and other representatives maintain the federal courts' decisions should stand in New Jersey and said they would oppose any proposed legislation.

"In any legal proceeding, the burden of proof is on the complainant," said Frank Belluscio, spokesman for the New Jersey School Boards Association. "This would only add to the already high cost of special education and puts an additional burden on districts and their taxpayers."

John Mooney may be reached at jmooney@starledger.com, or 973-392-1548.