Normal law should prevail
in special education cases


The Lingle administration is asking the U.S. Supreme Court to let states decide whether parents must prove that education plans for their disabled children are inadequate.

TRADITIONALLY, people filing a complaint in court or administrative proceedings have the burden of proving their case. Parents of disabled children are asking the U.S. Supreme Court that school districts challenged by parents carry that legal burden. Hawaii Attorney General Mark Bennett is taking heat for defending the normal standard, but his position is fiscally responsible and legally sound.

Upsetting that norm would amount to judicial activism, creating law where none exists. Three federal appellate courts have followed the norm, while the 9th U.S. Circuit Court of Appeals, which includes Hawaii, and three other appellate courts have authorized the aberration that school districts are presumed to be in violation of the federal special-education law unless they can prove otherwise.

Gary Smith, president of the Hawaii Disability Rights Center, calls Bennett's stance "unconscionable," requiring parents to bear the burden of proof in such cases. While the Hawaii Department of Education has been saddled with the burden, it has prevailed in 44 of the 100 special-ed cases that have been decided in the past three years.

The burden of proof is of little importance in most cases. Judges or juries usually can decide who is right or wrong without a microscope. People who lodge complaints alleging violations under civil-rights laws, the Age Discrimination in Employment Act or the Americans with Disabilities Act -- with which Smith is familiar -- realize they must prove their cases.

Like those laws, the Individuals with Disabilities Education Act, or IDEA, does not say which side -- parents or the school district -- has the burden of proof. In the absence of such a provision, the burden ordinarily is presumed to rest on the person initiating the complaint or appealing the decision. Realizing that schools have the natural upper hand in cases because of their educational expertise, Congress built into IDEA procedural safeguards to level the hearing process.

Those safeguards include involving parents at all stages of their children's special needs, allowing them to ask for independent evaluations, giving them access to a broad range of information and paying for voluntary, independent mediation. If parents prevail in contested cases, they may receive reasonable legal fees.

In the case before the Supreme Court, a Maryland couple sent their son to a private school because of their displeasure with public schools' accommodation of his attention deficit hyperactivity disorder. An administrative judge found the burden of proof "critical" in determining whether the school district should reimburse the parents for the boy's private school expenses.

In a brief to the court, attorneys general for nine states are asking the court to either place the burden of proof on school districts or, as an alternative, allow states to make that determination. Since Hawaii is the only state that is also the school district, Bennett essentially is asking in a separate brief that the court authorize the alternative.

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