Apr 10, 2011
A bill about special education hearing procedures provides a forum for legislators to debate the merits of public education and trial lawyers.
So there I was: sitting in the audience at the Oregon House Committee on
Education, watching all the action. The last item on the agenda was a
bill that would establish who has the “burden of proof” in special
education administrative hearings.
When a family thinks a school district is not properly serving its child
and the district does not agree, the family can ask an administrative
law judge to decide if the district has met its legal responsibilities
under the Individuals with Disabilities Education Act (IDEA). This bill
will decide whether the family must prove that the district is out of
compliance or, instead, the district has to prove that it is following
the law. Who, that is, has the “burden” of proving their case?
The bill, House Bill 2296, would place the burden of proof on school
districts. It was given a public hearing a few weeks ago but most of us
advocates thought the committee would take no further action. Two
years ago, there was a similar bill that died in committee because of
opposition by school districts. Although some changes were made to
address those concerns, the districts opposed the bill this time as
well, saying that if schools were required to prove that a child with
disabilities is receiving proper services, it would encourage parents to
file more complaints and ask for more hearings.
But, to our surprise, the bill was being given further consideration and
so I stopped in to see what would happen. The hearing opened with an
explanation of what the bill does. Rep. Sara Gelser, who sponsored the
bill, said that it would not make a big difference in terms of how the
hearings are decided but would “send a message” of support for parents
who are unhappy with the special education services being offered their
child. Rep. Gelser has a child with disabilities and relates a few
instances in which her child did not receive proper services.
Rep. Jason Conger said that he is concerned that parents will “lawyer
up” if the burden of proof is changed. He said that a plaintiff’s
attorney can “come in and shake down a defendant.” He likened this to
employment cases where lawyers make frivolous demands on businesses
which settle in order to avoid the costs of litigation. He said
opportunistic attorneys do “shakedowns,” and that this bill won’t affect
schools that are “bad actors.” Needless to say, he is opposed.
Rep. Gelser responded, saying that there are bad actors on all sides of
education hearings. But, she continued, money is not at stake here, it
is educational placements. She gave examples of hearings that resulted
in no relief or minor relief and says she likes the bill but hasn’t
prioritized it. She then talked about closure of school for the blind
and how this bill can send a message to those parents who feel the
legislature has ignored their needs.
Rep. Julie Parrish then spoke, saying that kids need better options.
She was troubled that parents have to sue schools to have schools do the
right thing. She thought this demonstrates the need for choice of
schools. She said that a parent has to sue because the local school is
the only option. The parent should be able to shop for someplace
better. She thought this bill will cost schools more and she does not
want to put a burden schools to spend more and thereby take away
services from others. But, she said, this bill is not really about
disabled children. It’s about school districts having too much power
because they have a monopoly. She concluded, saying that this is why
she “may be a yes vote. Something’s got to change!”
The next speaker was Rep. John Huffman who said he wants to send a
message of affirmation to parents but wants to do it like they did it
for the School for the Blind. He said the legislature expects districts
to listen to parents and do the best they can. “Every child is a TAG
child. We pay teachers good money to find how to stimulate children.
Parents shouldn’t be forced into the situation of filing a lawsuit.”
Rep. Betty Komp then spoke, saying that this is a highly charged topic
on which she “goes back and forth.” She said that she believes in
public school education and that the best way to support it is to pass a
decent budget. This bill, she said, is contradictory to this
message. She will be a no vote.
Rep. Michael Dembrow was then recognized to speak. He thought that most
districts are trying to do the right thing but problems do arise. He
wished there could be a neutral 3rd party or ombudsman that parents
could go to and hoped this is something that will be pursued. He will
support bill because he respects Gelser and his belief that a strong
message needs to be sent. The legislature, he said, wants school boards
to protect all children. Rep. Lew Frederick appeared to agree with
Rep. Dembrow, but chose not to speak.
Committee co-chair Matt Wingard had the last word. He said that the
kind of frustration that parents experience drive this type of bill. He
had heard many stories from parents of special needs children. It
“breaks my heart,” he says, “that parents can’t get the sense they are
being listened to.” He is proud to support bill.
Then came the very interesting vote. Republicans Huffman and Conger
vote no. Democrat Komp voted no. Republicans Wingard and Parrish voted
aye. Democrats Gelser, Dembrow and Frederick voted aye. HB 2296 is
moved out of the committee with a “do pass” recommendation by a 5-3
My analysis, for what it’s worth, is that since the bill was viewed as being largely symbolic, many legislators looked at it exactly that way and chose to make their own symbolic points. Wingard and Parrish promoted their view that parents should have more choice in schools. Conger used the opportunity to slap trial lawyers. Komp spoke to the issue of adequate funding for public schools, thereby countering the Wingard and Parrish position that the problem is not lack of funding but lack of choice. The remaining committee members pretty much addressed the merits of the bill itself. If only they had counted, HB 2296 would still have passed, but by a 3-1 vote.