The Burden of Proof & Production in NJ
School Districts bear the Burden of Proof & Production in Special Education Disputes in New Jersey.
Special education is governed by both federal and state law. In Schaffer v. Weast, 546 U.S. 49 (2005) the US Supreme Court held that, because the Individuals with Disabilities Education Act (IDEA) did not mention the burden of proof, and Maryland where the case originated did not have a statute addressing the issue, that the party requesting the due process hearing has the burden of persuasion to establish their claims. However, the Court also said it would not address whether states may make their own laws regarding the burden of proof.
The Schaffer case concerned only the burden of persuasion (the obligation to persuade the trier of fact of the truth of a proposition), and not the burden of production (the obligation to come forward with evidence to support a claim). The parties in Schaffer agreed the burden of production remains with the school district.
Before the US Supreme Court decided Schaffer, at least nine states and the District of Columbia had statutes that allocated the burden of proof in special education cases to school districts. New Jersey did not have a statute, but the New Jersey Supreme Court had allocated the burden of proof to school districts. In 2006, the Third Circuit Court of Appeals held the Schaffer rule applies in New Jersey unless a statute or regulation provides otherwise.
On January 13, 2008, Governor Jon S. Corzine signed legislation placing the burden of proof and production in all requests for a due process hearing, whether filed by the parent or the school district, on the school district. N.J.S.A. 18A:46-1.1 provides: Whenever a due process hearing is held pursuant to the provisions of the “Individuals with Disabilities Education Act.” 20 U.S.C. 1400 et seq., chapter 46 of Title 18A of the New Jersey Statutes, or regulations promulgated thereto, regarding the identification, evaluation, reevaluation, classification, educational placement, the provision of a free, appropriate public education, or disciplinary action, of a child with a disability, the school district shall have the burden of proof and the burden of production.
Parents need only raise the issue of whether the school has appropriately evaluated, classified or developed an appropriate IEP for their child. The burden to prove the schools actions were in accord with the law rests with the school. In my experience, despite the New Jersey statute, some school district attorneys will still seek to have the burden of proof shifted to parents seeking due process even though there is no legal basis to do so.