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Editor: Mitchell H. Rubinstein
New York Law School

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Wednesday, December 26, 2007

NJ Considering Legislation Overruling Shaffer Which Would Place Burden Of Proof With School District

A few years ago, the Supreme Court in Shaffer held that plaintiff children have the burden of proof in special education matters. New York enacted legislation to place the burden of proof back with school districts and it appears that New Jersey may soon be following New York's lead. A November 30, 2007 Newark Star Ledger article has the story which is available here. As the article states:

If passed, the bill would effectively counter a U.S. Supreme Court ruling in 2005 that said the burden should rest with the complaining parties in such cases, typically parents who contend a district's special education services are insufficient for their child.

But the court's opinion and a related district court ruling a year later appeared to leave open the option for states to set their own rules, and a few like New Jersey have since sought to do so.

One after another yesterday, mothers and fathers of children with disabilities testified that the bill would remove an obstacle in what can be tortuous and expensive disputes with districts. The cases typically revolve around specific programs provided for their children or where they are schooled.

While plaintiffs normally have the burden of proof in litigation, special education cases are different. School districts have all of the information and have lawyers on staff. Parents of disabled children have little information and often no virtually nothing about the process. Additionally, children are involved in these cases. Therefore, it is entirely reasonable to require School Districts to prove that there actions were in compliance with the IDEA. The IDEA itself only mandates an "appropriate" education. It does not require that students receive the "best" education.

Mitchell H. Rubinstein

http://lawprofessors.typepad.com/adjunctprofs/2007/12/nj-considering.html

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