Capital Board’s Legislative Priorities Could Be A Lightning Rod Of Controversy For Special Education In Delaware

Tomorrow night, the Capital School District Board of Education will discuss their legislative priorities for Fiscal Year 2017 at their monthly board meeting.  There is a lot in this proposed draft.  Some I agree with, and some I don’t.  But if certain things get pushed by all school districts, we could see a controversial start to the 149th General Assembly in Delaware.  Parents of students with disabilities could be spending a lot of time down at Legislative Hall in Dover.

In terms of burden of proof for who is implementing a special education student’s Individualized Education Program (IEP), I believe it should be the school that has the burden of proof.  If a parent challenges a school on these issues, how is a parent going to know what is happening inside the classroom?  It should be the school’s responsibility to address these issues if it gets to the point where a parent files a complaint that leads to a due process hearing.  There is one or two parents and maybe one advocate in an IEP meeting.  The rest is school personnel.  A parent cannot implement an IEP in a school setting.  Only a school can.  This is the law.  But in Schaffer v. Weast, the U.S. Supreme Court ruled the Burden of Proof should lie with the aggravated party, be it a student or the student’s parents (or legal guardian) or the school district should they dispute an IEP.  While the Supreme Court is the largest court in the land, I don’t agree with their decision in some respects, but I do recognize the authority of the United States Supreme Court.

The final ruling of the U.S. Supreme Court ruling in 2005 reads as this:

We hold no more than we must to resolve the case at hand: The burden of proof in an administrative hearing challenging an IEP is properly placed upon the party seeking relief. In this case, that party is Brian, as represented by his parents. But the rule applies with equal effect to school districts: If they seek to challenge an IEP, they will in turn bear the burden of persuasion before an ALJ. The judgment of the United States Court of Appeals for the Fourth Circuit is, therefore, affirmed.

In a sense, any challenge a school district has about an IEP will invariably lead to the burden of persuasion.  I would find it very difficult for a due process hearing to occur where a school district does not disagree with at least one part of a student’s IEP.  And if it does happen, I would assume the parent lost or the Due Process Hearing Officer ruled based on applicable law that neither party got it right in terms of what should be in an IEP.  In any of the steps that could eventually lead up to a Due Process Hearing, districts have to provide sufficient evidence to the parent about what is happening with special education.  Parents do have considerable rights for their child’s special education.  They can request an Independent Educational Evaluation, they can call for a manifestation determination hearing under certain criteria, and they can file an administrative complaint.  Even though I disagree with the finding of the Supreme Court in 2005, it is the law and it is precedent.  Therefore, I have to agree with the Capital Board of Education that Delaware should not have a law on the books that predates a Supreme Court decision (their law is from 1999).

With that being said, Delaware is well-known to have serious lapses or even outright denials of special education services for students with disabilities.  Parents of children with special needs tend to be very passionate about what they want for their children.  Many understand the law (sometimes better than the school districts) very well.  I have always said never walk into an IEP meeting without an advocate and always record the meeting.  What is said in IEP meetings can make or break a case in certain circumstances.  Parents in Delaware should not be afraid to have their attorney subpoena a teacher as a witness.  Senate Bill 33, passed in the Spring of 2015, allows for whistle-blower protection for any school staff in regards to special education.  If there is one consistent thing I’ve heard from parents in Delaware, it is that teachers want to implement IEPs, but administrators have been the ones who stopped something for some reason.  While this isn’t always the case, and sometimes it is both, never be afraid to play a card that could work out to your child’s best educational interest.

The other legislative priority for Capital deals with a Free and Appropriate Public Education.  IDEA federal law states schools must provide children with disabilities a “basic” education without clearly defining what is meant by basic.  Delaware law states schools must go beyond “basic”.  I would argue that in Delaware’s current educational landscape, the push is for all students to go beyond “basic”.  If Capital wants to have AP and honors classes, that goes beyond “basic”.  You can’t sit there and say “all for some”.  If you are going to be a school district that wants ALL students to succeed beyond just “basic”, you can’t pick and choose.  Then Lieutenant Governor Matt Denn said it best at the first IEP Task Force meeting:

Children with disabilities are entitled to a Cadillac education, not a serviceable Chevrolet.

The trick is finding out what that “Cadillac education” is.  I do not agree that this should be based on standards-based IEPs leading to higher proficiency on the state assessment.  We all know students with disabilities fare the worst on these types of tests.  We are failing all students if we continue this very bad charade of student success as measured by high-stakes testing.

In terms of the other legislative priorities in the below document, it is a no-brainer that our state needs to find a better way to fund education.  The funding cuts from 2009 should have been restored a long time ago.

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3 thoughts on “Capital Board’s Legislative Priorities Could Be A Lightning Rod Of Controversy For Special Education In Delaware

  1. There is the issue…Funding. Delaware is one of few states that the burden of proof lies with the state. This has been very expensive over the years. I know as a teacher I have been group lectured to by district lawyers about IEPs and documentation of everything! This conversation is changing education for sure. Butting may not be for the betterment of education. I don’t want to be afraid to do my job. I want to enjoy teaching, not document teaching.

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    1. It’s a double-edged sword in some respects. IF, and that is a big IF, Delaware was doing what it is supposed to do with IEPs, I would support it. But as much as I hate the feds at times, Delaware has scored very bad for special education for far too long. And we can’t just blame that on the DOE. I have seen some of the most basic spec ed laws completely ignored by some districts and charters. If you can’t get the fundamentals down, there are some real issues. With burden of proof, even if Delaware didn’t have that law, the way it works is it would ultimately swing back to the schools. Because once the district disagrees with anything in the IEP, that changes the whole dialogue. Trust me, parents don’t want to sue. They want their child to get their IEP and have the school follow it. It doesn’t just happen. It is usually followed by a long battle between the parents and the school and something happens where the parent does what they have to do.

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      1. I agree. Maybe though, districts and charters should hold the burden of proof… Not Delaware. Or there should be a shared burden of proof… Not sure if that is possible. We don’t want the blame game. That helps no one.

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