School board members in Montgomery County are split on whether, in the face of litigation from parents, the school system must prove it is providing an appropriate education for special-education students.
Members of the Montgomery County Board of Education weighed in on Tuesday on a bill in the Maryland General Assembly, sponsored by Karen Montgomery (D-Dist. 14) of Brookville.
Under the bill, if parents are unhappy with their children’s placement in public school, they no longer have the burden of proof during due process to show that the school system is not providing an appropriate education. The burden of proof would shift to the school system to prove it is providing an appropriate education.
After a lengthy discussion about the bill, the board did not take an official position. A motion by board member Philip Kauffman (At-large) of Olney to pass the bill with an amendment only received two other votes of support from the eight-member board.
Under the Individuals with Disabilities Education Act, school systems must provide special-education students a free and appropriate education, which are, in some cases, done through Individual Education Plans. It is not outlined in the act who has the burden of proof when that is questioned, leaving it up to states to decide.
The burden of proof currently falls on the school system in only six states, according to a school system memo.
Advocates say the bill will help parents who are unhappy with their children’s placement in public school, or their education in general, but who often do not have easy access to documents about their children’s education, and are often intimidated by the systems and their attorneys.
Opponents say that switching the burden to the school system is not the right way to solve issues between parents and school systems, and would make litigation more attractive for parents, therefore increasing litigation costs for local school systems.
Julie Reiley of Bethesda said she personally saw the “aggressive tactics” that school system attorneys use when she was working with the school system on solving issues with her child’s education.
Reiley said she had problems navigating the process, even though she is an attorney.
“I realized that for other parents, it would be virtually impossible,” she said.
Chrisandra Richardson, the school system’s director of special education and student services, pointed out to the board that the school system works hard with parents to solve issues in mediation, so few actually reach the point of due process.
A March 8 memo to the school board from Superintendent Joshua P. Starr stated that the bill “will do little to further the culture of collaboration MCPS has so determinedly attempted to develop.”
Kauffman said that it is the hardest position he has ever had to take, but he supports the bill with the amendment.
“In fairness, it should be on us to defend the [Individual Education Plan] that we create with our experts,” Kauffman said.
Board of Education President Christopher S. Barclay (Dist. 4) of Takoma Park disagreed, saying he opposes the bill because shifting the burden does nothing to solve the current animosity between parents and the school system regarding their children’s education.
Board member Rebecca Smondrowski (Dist. 2) of Gaithersburg said she supports the bill and it is relevant, as parents are often denied access to documents they need to make their case.
Starr said the school system has more of an adaptive issue than a technical issue that could be addressed by the bill.
There could be other ways to address any problems the board sees with special-education services, he said.
Richardson pointed out that, of 17,444 students with disabilities enrolled in Montgomery County Public Schools last school year, there were 128 requests for mediation or hearings, and only 7 of those went forward to a “due process hearing.”
Smondrowski said that she is more worried about parents who do not litigate — they might be frustrated with the process but give up during mediation because of the cost or the resources they need to proceed.
Dorie Flynn, executive director of the Maryland Association of Nonpublic Special Education Facilities, said she does not believe the bill would cause more parents to litigate. Instead, the school system would have a more conciliatory process with parents, she said.
Everyone will work together if the burden of proof is shifted, she said.
If the school system truly believes it is doing everything it can to provide the most appropriate education for every child, it shouldn’t fight the bill, Flynn said.
Montgomery County Public Schools recently faced the burden of proof issue in a case that lasted 11 years, climbing all the way up to the Supreme Court, according to Starr’s memo. In that 2005 case, Schaffer v. Weast, the U.S. Supreme Court stated that “Petitioners [the Schaffers] in effect ask this Court to assume that every [Individual Education Plan] is invalid until the school demonstrates that it is not. The Act does not support this conclusion.”
And the Act should not do that, Starr wrote.
There are safeguards in place to support families, and it is a mistake to assume the school system does not place students in private placement when appropriate, he wrote. Last year, the school system spent about $36.3 million to send 520 students with disabilities to private placement.
Since Connecticut has placed the burden on its local school systems, the Connecticut State Department of Education has studied the affects of the change and recommended either keeping the burden on the school system or changing state policies so parents have greater access to information and support.
The Connecticut education department also recommended, in its February 2012 report, that free or low-cost resources for eligible parents be available and parents have help filing complaints, given that the percentage of children with disabilities who are poor continues to increase in the state.