New
rules in special education disputes
Justices tilt system away from
families
Tuesday, November 22, 2005 • BY JOHN
MOONEY • Star-Ledger Staff
The news came during a break in an
administrative hearing in Newark last week, a hearing like
scores of others held each year in New Jersey to settle
special education disputes.
The U.S. Supreme Court had ruled that
morning that the burden of proof shall rest with the family
bringing a complaint against a school district.
As she sat in a Newark courtroom Nov. 14
and heard the news, parent advocate Carolyn Hayer felt the
broader dynamics had suddenly changed in not only her case
but likely many others.
"We settled our case, and I'll tell you,
I felt a lot more pressure to settle," said Hayer, who was
on hand on behalf of the unidentified family in the case. "I
think a lot more families will be reluctant to file these
cases from now on."
In many districts, special education is
defined by the tug-of-war between families and school
officials over what's best for a child, and by most
accounts, U.S. Justice Sandra Day O'Connor's opinion last
week chalked up a point for the districts.
The extent of the impact in New Jersey
will take time to determine, with a separate -- and
conflicting -- state court decision adding more
uncertainty.
But several experts say even a subtle
tweak in the balance of power could reverberate not only in
court hearings, but down to when disagreements first
arise.
Advocates for families say districts will
be more likely to take on a complaining parent, especially
hurting those parents unable to hire lawyers and
experts.
"I think you will hear a lot more
districts say, 'You don't like it? Sue me,'" said Penny
Dragonetti, director of training for the Statewide Parent
Advocacy Network Inc.
Those on the districts' side say it
levels the playing field that they see as tilted toward
parents, a source of increasing frustration and
cost.
"I think the decision is fantastic," said
Stuart Schnur, superintendent of the Montgomery Township
schools in Somerset County and president of a statewide
suburban schools coalition. "It's finally where it should
be."
Last year, special education cost New
Jersey districts about $4.5 billion out of the approximately
$19 billion spent overall on public education. The programs
serve about 220,000 children with disabilities, ranging from
mild learning disorders to severe physical and cognitive
impairments.
A vast majority of those students are
served without complaint or dispute from either the families
or the districts.
But scores of parents contest the
services, often demanding additional support or different
programs, with the complaints taking up time and
money.
The tension on both sides can be
palpable. Hayer, the advocate in the Newark courtroom,
experiences it as both a parent of a boy with autism and
also as a member of the Hackensack school board.
"Most districts do well, and I realize
there are some parents who are crazed, too," she said. "But
my own experience has also shown me that no matter what,
there are districts not willing to collaborate."
Hundreds of disagreements each year go to
mediation and ultimately to court, often costing families
and districts tens of thousands of dollars in legal and
other fees. Last year, about 1,100 requests for either
mediation or due process were filed, with 600 ending up in
administrative court.
Until last week, much of the legal
strategies rested on a 1989 decision by the state Supreme
Court known as Lascari v. Ramapo Indian Hills Regional. In
that decision, the court ruled that the burden rested with
the Bergen County district, citing its greater access to
both resources and information about its
programs.
But the U.S. Supreme Court threw that
balance on its head. In the decision written by O'Connor,
the majority of the court placed the onus on a family suing
a Maryland school district, saying the burden should rest
with the plaintiff, as it does in most other areas of
law.
O'Connor cited the formidable rights
afforded parents under the federal Individuals with
Disabilities Education Act to access districts' information,
not to mention hire their own experts and
consultants.
"They are not left to challenge the
government without a realistic opportunity to access the
necessary evidence, or without an expert with the firepower
to match the opposition," O'Connor wrote.
But the court did not speak to the
half-dozen states like New Jersey with conflicting state
rules. Several lawyers and advocates for families said the
Lascari case should stand in at least requiring districts to
go first in arguing their case, called the "burden of
production."
"When dealing with the burden of
production, Lascari is still the law," said Staci Greenwald,
a Spotswood special education lawyer. "From a strategic
point of view, that is critical. When you have to go first,
it makes you more amenable to resolve these
cases."
Others argued that districts will still
have a somewhat lighter load -- or "burden of persuasion" --
to win their cases once argued, helping boost a success rate
that already sides with districts.
Over the last five years, districts have
won almost two-thirds of the cases decided by administrative
law judges, according to state data.
The bulk of all cases are settled before
they reach that point, and districts' lawyers say there now
will be even more such incentive.
"It is certainly something parents'
attorneys will have to take into account when advising their
clients to how hard they should push," said Richard Bauch, a
Morristown lawyer and past president of the New Jersey
Association of School Attorneys.
John Mooney covers education. He may be reached at
jmooney@starledger.com or (973) 392-1548.
© 2005 The Star-Ledger. Used by NJ.com with
permission.
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