The burden of proof in a due process hearing should be placed squarely upon the school district which has the statutory obligation to comply with the objectives of the IDEA and who possesses the exclusive means of educational knowledge and information.  Allocating the burden of proof to school districts meets the intent of Congress while avoiding the additional legal burden to parents who have many non-legal burdens to carry just to sustain a functioning family with a child with a disability.

Schools have the obligation to provide a free appropriate public education in exchange for the federal funding they receive so it is appropriate to put the burden of proof in due process hearings on the school to prove that it has in fact satisfied its statutory obligation.

The IEP process, although supposedly an interactive and cooperative process between school staff and parents, does not permit parents to have access to school district information on such issues as testing results, instructional methodologies, coordination of services or preparatory activities that school personnel engage in to develop a proposal or response to a parent proposal, and that eventually become part of a due process.   There is no dispute that the schools have exclusive access to the important information about historical  experience, while the parents may be left with, at best, an inchoate belief that a certain plan is not right for their child—and no opportunity to test that belief by comparison to the facts of prior experience that school systems have. These exclusive activities of school personnel serve to underscore and enhance the relative superiority of the school district throughout the IEP process.

Not only does the school have superior information and expertise; their representatives also dominate the IEP team.  Parents are decisively outmanned by their school counterparts—not just in numbers, but in expertise, in training, in time, and in resources.  Plus it is the school systems that maintain exclusive control of the IEP document during its development.

Thus, because school districts are comprised of “educational experts”, who have access to a broad spectrum of information about other student’s IEPs that have worked (or not), different programs, etc…it is especially appropriate to allocate the burden of proof to the school districts.

Placing the burden of proof on the school system would also lead to the efficient use of judicial time and resources by creating desirable incentives for school districts to articulate and communicate their educational practices.  The IDEA grants significant deference to the educational preferences of school districts, another compelling reason for allocating the burden of proof to the schools.  It will not be burdensome at all for these educational experts to come forward —during the IEP development process—with evidence and explanations for the IEP plan they have proposed.

The Board of Education or Governor Kaine cannot give parents the inner strength and financial resources needed to raise a child with disabilities. Nor can they promise that families and marriages will not be crushed by the burden of raising a child with a disabling condition. But what can be done is for the Commonwealth of Virginia to recognize the realities of raising a child with special needs by placing the burden of proof in special education cases on the school district, where it appropriately lies. The end result will be that educators will have the burden in matters of education, and parents will have the burden in matters of parenting.