SEATTLE — In most places across the country, families face a labyrinth of difficulties trying to navigate special education services — especially if they legally challenge their child’s educational placement at school.

Bound by the legal “burden of proof,” parents must string together expert witnesses and gather records to prove that the school district made the wrong call on their child’s disability services. Many don’t have the money for a lawyer or to pay for the cost of requesting records from the school district. They also may not speak English as their first language.

With the governor’s signature, Washington will, by June, become one of just a handful of states trying to flip that dynamic.

Lawmakers passed Senate Bill 5883 late last month, requiring school districts to prove that they provided adequate services to children. The bill is on Gov. Jay Inslee’s desk.

It was the latest in several attempts by advocates to change the law.

“It’s about power,” said Lisa Ellen Brodoff, an emeritus law professor at Seattle University who worked on drafting the law. “And whoever has the most power should bear the burden.”

Several school districts, including Mercer Island, have raised concerns about the legislation. They say it will cause districts to spend a lot of time and money fulfilling the new legal obligation.

Parents do not receive monetary settlements if they win cases. Districts could incur additional costs if they lose a case where a parent is seeking more expensive services than what was offered to the student.

“This bill will not provide better services for students. Our focus should be on curriculum, not compliance,” Mercer Island School District’s special education director Sue Ann Bube testified at a hearing for the bill, which was sponsored by Democratic Sen. Yasmin Trudeau of Tacoma.

Supporters of the bill say the legislation is intended to encourage both parties to settle earlier, before it gets to a hearing. Currently, under the old rules, the process can drag out for years.

“It will cause (district) lawyers to do a more careful analysis and talk more frankly about the case … knowing that if they went to a hearing, their chances are not going to be as good,” said Stacy Dym, the executive director at The Arc of Washington State, a disability rights organization.

Special education complaints, called due process complaints in Washington, are routed through a separate administrative court system. In the case of an appeal, the lawsuit then goes to federal court.

In civil lawsuits, including ones routed through administrative courts, the person who brings the case forward has to prove that there is more than a 50% chance that their claim is true. But these cases should be treated differently, argued Dym.

“The parent will always be the one bringing the claim,” she said. “And they don’t get any cash settlement for winning — only the services they sought for their child.”

Brodoff, who oversaw a program in which law students helped represent families in this legal process, says she saw the damage the current system inflicts on parents and families. Districts delayed settling as parents, many of whom were already overwhelmed, scrambled to put a case together, Brodoff said.

“And the child was stuck with the plan in place” as the case was being tried, she said.

Several special education family advocates, including Brodoff and Dym, worked with legislative staff to write the law. They used New Hampshire’s 2021 law as one of their models.

That state and several others, including Nevada, New Jersey and New York, changed their laws in the aftermath of the U.S. Supreme Court’s 2005 decision in Schaffer v. Weast. In that case, the court ruled that parents would be responsible for the burden of proof by default, as in other legal contexts. But states are still allowed to make laws that put the burden of proof on the district.

Critics of shifting the burden of proof, often school districts and administrators, also worry this may encourage more litigiousness. But national data do not bear that out, said Selene Almazan, a Maryland-based attorney and legal director of the Council of Parent Attorneys and Advocates.

The number of due process complaints filed in New Hampshire was higher some years before lawmakers there passed a 2021 law shifting responsibility to school districts, according to the Center for Appropriate Dispute Resolution in Special Education.

It’s unclear, though, if shifting the burden means families are more successful in these cases, she said. States are not required to report win or loss rates to the federal government.

There is a compromise worked into the bill for school districts: If parents are trying to get their school districts to pay for their child to attend private school full-time, the family bears the burden of proof.

The change doesn’t mean parents won’t have to sift through paperwork. Advocates still recommend keeping records of correspondence with school district staff and other documentation. Parents might still need to mount a case, including calling witnesses and presenting more evidence during a hearing.

But it is a meaningful change in a process that is stacked against parents, said Michelle O’Dell, a parent who testified in support of the bill. Things are hard even if the parent has some legal knowledge and speaks fluent English.

Cases can drag on for two years before there’s a resolution.

“Some parents spend thousands and thousands of dollars for a very simple situation,” she said.

© 2024 The Seattle Times
Distributed by Tribune Content Agency, LLC

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