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10/21/2021 07:30 PM
Pennsylvania House of Representatives
https://www.legis.state.pa.us/cfdocs/Legis/CSM/showMemoPublic.cfm?chamber=H&SPick=20210&cosponId=35702
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House of Representatives
Session of 2021 - 2022 Regular Session

MEMORANDUM

Posted: May 21, 2021 02:10 PM
From: Representative Tina M. Davis and Rep. Nancy Guenst
To: All House members
Subject: Burden of Proof for Special Education Students
 
Parents of students in special education programs face a number of challenges as their child moves through school—advocating for more equitable education opportunities should not be added to that list. We plan to introduce legislation that places the burden of proof on school districts, rather than a party seeking relief, in special education hearings. This is necessary because school districts are better able to meet that burden than are the parents of children with disabilities.

For many years, the established precedent of the U.S Third Circuit Court, which Pennsylvania falls under the jurisdiction of, was that the burden of proof in a hearing that would determine if a child is being educated in the least restrictive environment was placed on the school district. However, following a Supreme Court decision in 2005, the court held that it should be on the party that is seeking the relief—which is almost always the parents. The court expressly did not invalidate state laws that placed the burden on the school district. So, if there is no state law or regulation that explicitly places the burden on the school district, the burden falls on the family. Unfortunately, Pennsylvania has yet to enact a statute or regulation that would prevent parents from having this burden.

11 states have passed laws and/or regulations that have changed the burden of proof to the school district. With this legislation, Pennsylvania would join these states that protect the interests of children and families. We hope that you will join us in cosponsoring this legislation.