Maryland lawmakers may soon send to the desk of Gov. Wes Moore a potentially costly bill that would require school districts to bear the burden of proving at hearings that their provision of services to a disabled child is not inadequate. That would be a bad idea for multiple reasons, I argue in a new piece at Maryland Reporter.
More than almost any area of K‑12 schooling, education of the disabled is driven by federal law, specifically the Individuals with Disabilities in Education Act of 1975 (IDEA) and related enactments. When families are discontented with a school’s provision of services they are entitled to demand a hearing, and at that hearing — in Maryland as in most other states — the side seeking legal intervention shoulders the burden of proof, a conventional and familiar rule found across our legal system. The Supreme Court confirmed this as the default rule in the 2005 case of Schaffer v. Weast but also left room for states to adopt a contrary rule re‐assigning the burden to schools. A few states, including New York, New Jersey, and Connecticut, have done that, and HB 294 would add Maryland to the list. From my piece:
It’s also a matter of basic fairness. Complaints often function in effect as accusations against responsible persons, such as educators or administrators, and requiring accused parties to show that they have not broken the rules isn’t what many of us would call fair….
As the fiscal note acknowledges, when complainants prevail in more cases, the underlying costs of providing special ed services are likely to increase, aside from the expenditure of resources on the hearings themselves….
And if you worry that schools are obsessively bureaucratic now, wait till word gets out that a complainant can come in later with any old crazy allegation and the burden will be on you as educator to disprove it, so you’d better document every single thing forever..
Both the state teachers’ union and the Maryland Association of Boards of Education have opposed the bill, arguing that it would redirect even more of teachers’ work day to hearings and compliance at the expense of classroom time spent with students. Yet the Maryland House of Delegates just voted to pass the bill by a margin of 135–0.
Cato scholars have long argued, as in this policy analysis by Marie Gryphon and David Salisbury, that “IDEA’s central failure is the complex and adversarial process required to determine the size and nature of each disabled child’s entitlement to special services,” and that children would be better served by a portable system under which resources would follow a disabled child to providers of the family’s choice. Putting a thumb on the scales in favor of families discontented with a single mandatory provider does nothing to bring such reform any closer, and is instead likely to worsen the multiple and conflicting burdens already placed on educators.
[adapted from a post at Free State Notes]
