" I ask Maryland to join states such as New Jersey, New York, and DC..."

November 16, 2011, Priorities Hearing of the Montgomery County Delegates

Testimony of Julie Reiley, Parent of an MCPS Fourth Grade Student

Good evening.  My name is Julie Reiley.  My son is a 4th grader.  He also has autism.  

Tonight I ask Maryland to join states such as New Jersey, New York, and DC (among others), and enact legislation lifting the unjust burden placed on parents of children with disabilities by the Supreme Court’s IDEA decision Schaffer v. Weast, 126 U.S. 49 (2005).  

The IDEA mandates that Maryland schools provide children with disabilities with special education services that provide a meaningful educational benefit.  These services are provided in an IEP (individualized education plan).

The burden of Schaffer - unless the state chooses otherwise - is that, when an IEP is disputed, the "party seeking relief” bears the burden of proof in any litigation.  This is unjust for two reasons: (1) in reality it places the burden on parents; and (2) , as Justice Ginsburg stated, “policy considerations . . . and fairness call for the assigning of burden of proof to the school district . . . .”  Schaffer, 126 U.S. at 63 (Ginsburg, J., dissenting).

The burden ends up on the parents because each year a child gets a new IEP, whose services take effect even over the parents’ objections.  Thus, each year the school district determines the nature or quantity of services provided, and if the parents object, they bear the burden of proving the district violated its mandate.  

The burden of proof rightfully belongs on the school district for many reasons.  Among them, the district has superior access to critical information; litigation forces parents to ask principals and teachers to testify against their employers.   The district, “familiar with the full range of educational facilities” and how similarly situated children have fared at them, is in a far better position to demonstrate compliance.   Schaffer, 126 U.S. at 64 (citations omitted).  Placing the burden on the districts “will strengthen [their] resolve” to place the educational needs of these vulnerable children over budgetary concerns.  Schaffer, 126 U.S. at 65.  Finally, parents typically lack legal training.  In short, parents have numerous factors against them in litigation.  Burden of proof should not be one of them.   

Thus, I ask Maryland to restore fairness to the IEP process, and place the burden of proof on the school districts.   

Attached via email:  Schaffer v. Weast, 126 U.S. 49 (2005); Brief of the Common Wealth of Virginia and Eight Other States as Amici Curiae in support of petitioners in Schaffer v. Weast, 2005 WL 1031635 (2005).