SB 241: Senate Education and Health Special Subcommittee

September 12, 2006

During the 2006 Regular Session, Senator H. Russell Potts, chairman of the Senate Committee on Education and Health, appointed a special subcommittee to examine the issues raised in SB 241 relating to the allocation of the burden of persuasion in a due process hearing. Senators Ruff (chairman), Houck, and Edwards were appointed to serve as the special subcommittee, which met on September 12, 2006. Senator Ticer and other interested parties attended the meeting.

Background

The major issues raised by SB 241, which was introduced during the 2006 Regular Session include:

• Whether the recent Supreme Court decision, Schaffer v. Weast, precludes legislation in direct conflict with that decision.
• Whether the costs to the localities, as a result of any such legislation and its potential for an increase in litigation, would be significant.

Staff presented an initial report explaining the term burden of persuasion and discussed the Supreme Court decision, Schaffer v. Weast, in relation to SB 241. Staff also reported on how other states have allocated the burden of persuasion, as well as how they have responded to the Schaffer decision.

SB 241

Senator Ticer, the bill’s patron, explained that SB 241 places the burden of persuasion on the school division in any due process hearing. This would be a change from the current practice, which is supported by the Supreme Court case Schaffer v. Weast, that the party challenging a disputed action bears that burden. The legislation aids in providing a level playing field between parents and the school division, and states that any complaint with respect to the identification, evaluation, or educational placement of a child or the provision of a free appropriate public education to such child is an SB 241 would place the burden of persuasion on the school division in any due process hearing, while the current practice, supported by the Supreme Court decision in Schaffer v. Weast, places that burden on the party challenging a disputed action. uphill or unfair battle. The patron emphasized that school divisions have a wealth of expertise available to them and that many low-income or middle-income parents do not have the same advantage in their challenges to school division decisions.

Several constituents accompanied Senator Ticer, spoke in favor of the bill, and shared personal stories with the subcommittee concerning their experiences with due process hearings. An attorney with the Just Children Program in Charlottesville, described her work with low-income parents. She explained that one in four children with disabilities comes from a low-income background, and it is very difficult for parents to navigate the hearing process. She felt that SB 241 would help her clients by remedying what they believe is an imbalance in the due process system.

Public Comment

The special subcommittee conducted an extensive public comment period. Citizens in favor of SB 241 testified that the school divisions' expertise on matters relating to the special education of children, in comparison with that of the parents, necessitates the passing of SB 241 into law. Additionally, those in favor of the bill testified to the expensive nature of due process hearings and ensuing litigation. Many proponents stated that the bill would hold school divisions accountable for their actions in providing a free appropriate public education, because they would have to prove by a preponderance of the evidence that their actions were appropriate.

Opponents of SB 241 emphasized the cooperative nature of school divisions and that 80% of all due process hearing requests are resolved before the hearing. The subcommittee was informed about the mediation process and the newly required resolution sessions. Additionally, those speaking in opposition to the bill pointed out that parents can recover attorney's fees if they obtain a favorable decision in due process. A division superintendent speaking in opposition to the bill emphasized that there is already adequate accountability in educating students with disabilities, both ethically and imposed by federal and state law. Acknowledging parents' frustration with the due process system, he noted that SB 241 would not change the overall process. An attorney who handles cases for Virginia Beach public schools pointed out that the difficulties associated with due process hearings would not change if SB 241 became law. She noted that SB 241 would do little to alleviate many of the issues identified by those in favor of the bill and added that due process hearings would continue to occur and be difficult for everyone involved.

Special Subcommittee Action

The special subcommittee took no action on SB 241. If the full committee does not act on the bill by December 8, 2006, it will die in the Senate Committee on Education and Health.

Chairman:
The Hon. Frank Ruff

For information, contact:
Nikki Seeds and Brenda Edwards, DLS Staff

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