You asked if education law or regulation for due process hearings regarding school accommodation, residency, and discipline matters address which party in a proceeding bears the burden of proof. You also asked us to compare these types of hearings to special education hearings in Connecticut, where the burden of proof is always on the school district.

SUMMARY

There are different kinds of administrative due process hearings held to resolve issues including (1) disputes over how a district must accommodate a student; (2) whether the student lives in the district; (3) whether a student should be expelled or suspended; and (4) in special education, over the nature of the placement or the individualized program established for the student.

The burden of proof in non-special education cases varies depending on the situation. Certain statutes specifically address this question, such as in residency cases, and others, such as discipline, are silent. If statutes are silent, it means the moving party (i.e., the person asking for the hearing) bears the burden of proving his or her case.

In special education cases, state regulation states that in all cases the burden of proof is on the school district (or other public agency providing the special education) to prove that its placement is correct. The burden of proof remains with the school district even when the parents request the due process hearing.

BACKGROUND

Connecticut special education due process hearings are held before impartial special education hearing officers appointed by the State Department of Education (SDE). The local board of education controls the hearings on school accommodation and discipline. By law, these hearings are held by the school board or by an impartial hearing board established by the school board (CGS §§ 10-186(b)(1), 10-233c, and 10-233d). In the case of school accommodation, the law also allows a school board to designate a subcommittee of the board to conduct the hearing.

The law requires all of these hearings (special education, accommodation, and discipline) to follow other procedural steps regarding party notification, permitting both sides to present information, recording the proceedings, and ruling within a certain time following the hearing.

SCHOOL ACCOMMODATION

State law requires school districts to provide accommodation, by transportation or otherwise, so that school-age children living in the district may attend public school (CGS § 10-186(a)). When there is a dispute over accommodation, the statute is specific about which party has the burden of proof during due process hearings, but it is not the same party in all situations.

In cases where a district denies schooling based on residency, because it believes a student lives in another district, the student's parent or guardian has the burden of proving, by a preponderance of evidence, that the student lives in the district in question. In all other issues of accommodation (these are often transportation related) the burden of proof is on the party claiming the student is ineligible (typically the district) (CGS § 10-186(b)(1)). In these accommodation matters, the law is explicit about which party bears the burden.

DISCIPLINE

The statues on student suspension and expulsion describe the hearing process that must take place for such decisions, but they do not explicitly say which party bears the burden of proof (CGS §§ 10-233c and 10-233d). According to SDE's legal office, in any impartial hearing when the burden is not explicitly placed on a side, it falls to the party moving to take the action (such as expelling a student). In non-criminal matters, such as school expulsion, the burden is a preponderance of evidence, according to the legal office.

For example, by law in order for a student to be expelled the district must show the student (1) on school grounds or at a school-sponsored activity, (a) violated a publicized school board policy, (b) was seriously disruptive of the educational process, or (c) endangered persons or property, or (2) off school grounds violated a publicized board policy and was seriously disruptive of the educational process (CGS § 10-233d(a)(1)). Therefore it falls on the school district to prove by a preponderance of evidence that a student violated a publicized policy or other violation named above.

SPECIAL EDUCATION

Special education is governed by both federal and state law. Federal law generally establishes a child's right to special education and imposes the procedural requirements for states and school districts to implement that right. State laws must conform to federal requirements.

Although federal law requires due process hearings to resolve disputes, it does not specify which party to a hearing bears the burden of proof (i.e., is required to prove its claim that a special education program or placement is or is not appropriate for a particular child). In 2005, because the federal law is silent on this point, the U.S. Supreme Court ruled that the burden falls on the plaintiff (i.e., the moving party) to prove his or her claims (Schaffer v. Weast, 546 U.S. 49 (2005)). At the same time, the Court declined to decide whether states could choose not to follow this rule.

Connecticut State Board of Education (SBE) regulations adopted in 2000 place the burden of proof in all special education due process hearings on the school district. This means that, even when the parent is the plaintiff, school districts must prove that their special education decisions are appropriate (Conn. Agencies Regs. § 10-76h-14).

For more on the burden of proof in special education see “OLR Backgrounder: Burden of Proof in Special Education Due Process Hearings,” report 2010-R-0439.

JM:ts