Education Law Center is leading a statewide effort to mobilize New Jersey child advocates, disability rights organizations and other stakeholders to secure passage of legislation to place the burden of proof and burden of production on school districts in special education due process hearings.

A4076 and S2604 , sponsored by Assemblypersons Joseph Cryan, Joan Voss and David Wolfe, and Senators Stephen Sweeney and Joseph Doria, would restore the burden of proof to the districts where it had been since the NJ Supreme Court’s 1989 decision in Lascari v. Ramapo Indian Hills School District. The proposed legislation would also ensure the burden of production rests on school districts as well.

The burden of proof refers to the responsibility to show that one’s evidence is more persuasive than that presented by the other party. The burden of production is the obligation to be the first party to present evidence at the outset of a hearing.

Despite New Jersey’s well-settled law under Lascari, in 2006, the Third Circuit Court of Appeals in L.E. v. Ramsey Board of Education interpreted the 2005 U.S. Supreme Court decision in Schaffer v. Weast as holding that the burden of proof no longer rested solely with school districts. This means that children with disabilities more often than not must now bear the burden of proof, and it has made it difficult for these children, especially those who cannot afford lawyers, to prevail at hearings.

Placing the burden on school districts would simply require districts to show that they are providing a student with an appropriate education, consistent with federal and state special education law. It is easier for districts to bear the burden than families, as the districts possess virtually all of the information regarding an educational placement. Reallocating the burden to districts will also ensure that tax dollars are being spent on effective programs and will enhance district accountability.

ELC, along with the NJ Special Education Practitioners, -- a group of special education advocates spearheaded by ELC – encouraged NJ Public Advocate Ronald Chen to support reallocating the burden, resulting in a recent report endorsing the effort.

ELC urges all concerned parents and stakeholders to support A4076 and S2604. An Action Alert , Talking Points and a sample letter are available to assist individuals in reaching out to their state representatives. For more information, contact ELC Senior Attorney Ruth Lowenkron at rlowenkron@edlawcenter.org or 973-624-1815, ext. 21.

Prepared: April 18, 2007

Copyright © 2007 Education Law Center. All Rights Reserved.