Parents Can't Win

Parents Can’t Win

In the last five years, parents have won less than 15% of cases filed for due process against the various Maryland local school systems. And that represents an improvement up from only 3-5% of wins a few years back.

But it was not always that way.  When the federal law (and Maryland’s law that came later) was first enacted in 1975, there were two levels of hearings, local and state, before any appeal to a state or federal court.   In those days, the hearing officers at the hearings were required to be professionals, “knowledgeable and expert in the fields relevant to the child”.  These were professionals who knew what an appropriate education looked like for a child with learning disabilities, emotional issues or other learning challenges.  Differently trained professionals were picked for the cases based on the issues of the child.   Local hearings had one hearing officer and state level hearings had three officers. AND, when professionals who were knowledgeable and expert about what the students needed, parents WON 90% of the cases.

Fast forward to more current times.  This win rate for parents annoyed local school systems and MSDE.  Consequently, they set out to do something about it.   First, the local hearing was disbanded.  All complaints went directly to the state hearing level.   The major change came when professionals were no longer to preside at hearings.  Instead, administrative law judges were chosen to hear cases.   These administrative law judges are just that, they decide issues of administrative dispute for all of Maryland’s various departments.  They are neither expert nor knowledgeable in special learning challenges.  They may not get a case involving special education for several years.   They have no professional training in the needs and issues surrounding the provision of an appropriate education for a child with disabilities.   They are trained in the rudiments of the special education law by the staff of the Maryland State Department of Education.   Sort of like a union training the hearing officers to settle labor disputes.  Not exactly a level playing field.   After this switch there was a sea change in the decisions coming from the hearings.   Parents went from winning 95% of the cases to losing 95% of the cases.

If that wasn’t enough, the next step was for there to be a shift in the party having the burden of proof.   Initially, since the law mandates that the school system be the provider of an appropriate education, local school systems were required to demonstrate that they had met that burden at a hearing.   Then there was a shift in what, at first, appeared to be innocuous. The burden of proof would now belong to the party proposing the change in placement.  That seemed innocent enough except that in practice it is almost exclusively the parents who are dissatisfied with what the school district is providing and, therefore, they became the party requesting the change and thereby having the burden of proof. With these two changes, the parents win rate went from about 95% to less than 5%!

Did the validity of the cases change?   Nope, not at all.   Did the playing field of justice tip in another direction?  You bet, and now the parents can’t win for losing.