David vs. Goliath: Parents and Advocates Pitted Against MSEA and School Districts in the Maryland Legislature

By Laura Vaughan

As the Maryland legislative session heats up, sparks are flying over bills introduced in both the House of Delegates and the Senate that could have a major impact on special education in the state.

Tensions are high as the Maryland State Education Association and school districts find themselves at odds with families, the Free State PTA, and special education advocates.

With stakes this high, it’s clear that the outcome of this debate will have far-reaching consequences for Maryland’s most vulnerable students.

So what exactly is at the heart of this controversy, and what are the potential outcomes for those involved? Read on to find out.

House Bill 294 sponsored by Delegates Vanessa Atterbeary and Mike Griffith, and its corresponding Senate Bill 0926, sponsored by Alonzo Washington would shift the burden of proof in special education disputes from the families of students to the school districts.

Click here to email all “Ways and Means Committee” members in support of HB294.

Click here to email all “Education, Energy, and the Environment Committee” members in support of SB0926.

Current Law

Under the current law, the burden of proof in a special education complaint falls on the families. When they file a complaint, it is their responsibility to prove that the district has not provided their children the services to which they are legally entitled as established under the Individuals with Disabilities Act of 1975. This can be quite taxing and expensive.

“In the past five years, they’ve lost more than 85 percent of the time, state education department documents show, even after investing tens of thousands of dollars and countless hours in pursuit of a better education for their children.”

https://www.baltimoresun.com/news/investigations/bs-md-due-process-hearings-20190502-story.html

The bills were introduced against a backdrop that in Maryland, parents lose 85% of due process hearings. According to an article in the Baltimore Sun, families who fight without attorneys and expert witnesses did not win any cases between 2014-2019.

According to an American Association of School Administrators report on national trends: The system’s “complex protocols and mandates disproportionately benefit wealthy, well-educated parents, who can deftly and aggressively navigate the due process system with the aid of private counsel and paid education experts.”

Local advocates agree, stating “The current system strongly favors the district, with MCPS hiring outside law firms to litigate these cases. Yet, families are not offered this same opportunity and need significant financial resources in order to take on a $3 billion school system with a seemingly unlimited budget to litigate. Shifting the burden of proof to the school system that is supposed to be ensuring all children receive a free and appropriate public education is a step in the right direction to even the playing field in due process hearings.”

Families and Advocates Support the Bill

Families, the Free State PTA, and special education advocates including xMinds support these bills citing that in Maryland, “there is a harmful imbalance in these hearings that makes it extremely difficult for families to ever win. xMinds is advocating for a state law that will even the playing field by shifting the burden of proof in these hearings from families to the schools.”

The Council of Parent Attorneys and Advocates (COPAA) holds that the burden should be on the districts given that “school systems are almost always represented by counsel, federal law imposes an affirmative obligation on school districts to provide an appropriate education to children, and that school systems have an obligation to provide the tools and processes necessary for an appropriate education and should be required to prove the effectiveness of their actions.”

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MCPS Board of Education Meeting Vote

During their February 23 business meeting, the Montgomery County Board of Education had a split vote on whether to approve of the legislation. Diana Wyles, MCPS Acting Associate Superintendent, Office of Special Education, strongly opposed the legislation stating that it would have a “detrimental impact on finances and operation.”

Consistent with the position held by the Maryland State Education Association, she stated that it is MCPS’s position that the legislation “puts the school system in a position where they will be consistently questioned on their expertise in their field.” She also voiced concern that staff would have to sit through several days of due process hearings and that the number of hearings would increase significantly.

Superintendent Dr. Monifa McKnight stated that her fear was that the legislation would “require increased litigation” and lead to increased cost; a sentiment echoed by Stephanie Williams, MCPS’s General Counsel. Ms. Wyles also noted that MCPS already has a higher number of due process hearings than the surrounding jurisdictions.

Montgomery County Board of Education members Lynne Harris, Rebecca Smondrowski and Grace Rivera-Oven all voted to approve the bills, with Ms. Harris stating, “if we’re doing everything we can for these students, I don’t see why it would be so laborious to prove that.” She also cited that in New York and New Jersey, similar burden of proof shifts didn’t result in increased numbers of due process hearings. MCPS staff stated that they were unfamiliar with these statistics.Ultimately the board voted 5-3 to disapprove of the bills. 

After the Meeting

After the meeting, advocacy groups argued that the statements by MCPS and MSEA were factually incorrect. Like Ms. Harris, they cite that in New Jersey, when the burden of proof was shifted to the school districts, the number of due process hearings actually decreased to a volume below the levels seen before the legislation was enacted as there was more incentive for districts to reach agreement via mediation. This decrease in due process hearings decreased the litigation cost for districts and families.

Advocates Disagree with MCPS

Advocates also argued that the statement by MCPS that teachers would spend days in due process hearings is incorrect. Generally, these hearings have remained virtual since the pandemic, allowing witnesses to log in when it is their time to testify. Additionally, staff are often provided weeks, even months of notice before a hearing, which should provide MCPS central office staff more than enough time to identify a substitute. 

Advocates and parents also contend that the burden on staff would not increase as the school district should have already assembled the relevant data supporting its position and presented them to the parents at the IEP meetings from which the conflict arose. According to COPAA, “The school system has a great deal of information that may be presented in the form of testimony or in documents that the parent may receive only five days before a hearing” therefore, placing the burden of proof on families places them at a significant disadvantage especially if the family has limited financial resources with which to hire attorneys, advocates and witnesses. At the same time, families are required to prove the system is failing their children.

Bottom Line

Similar bills have previously been defeated at the state level, having faced fierce opposition from MSEA and the school districts in the state. Parents and advocates are hopeful that this time the bills will find support in the legislature given the push for increased quality of education by the Moore administration and the recently adopted Blueprint for Maryland’s Future.

Take Action!

Click here to email all “Ways and Means Committee” members in support of HB294.

Click here to email all “Education, Energy, and the Environment Committee” members in support of SB0926.

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