The NJSBA Delegate Assembly on Dec. 10 overwhelmingly approved a resolution calling for a change in the adjudication process for special education disputes.

One hundred forty-five local school district representatives attended the semiannual meeting at Mercer County Community College in West Windsor.

Submitted by the Marlboro Board of Education, the proposal calls for legislation that would place the burden of proof in disputes over a child’s individualized educational program with the party filing the action. Under current state law, enacted in 2007, the burden of proof rests with the school district, whether it initiated the complaint or not. In most other types of litigation, the party that brings legal action has the burden of proof.

Seventy-eight percent (78 percent) of the delegates voted in favor of the Marlboro resolution.

Increasing Costs The Marlboro resolution reflects a recommendation of NJSBA’s Task Force on Special Education in its 2014 report, “Special Education: A Service, Not a Place.” The task force found that, from 2008-2009 through 2011-2012, special education costs increased at twice the rate of general education expenditures. New Jersey’s special education costs are among the highest in the nation.

A task force survey asked superintendents and special education directors to identify changes in law and regulation that would enable them to manage costs. More than one-third cited the adjudication process for special education program challenges—especially due-process and burden of proof—as an area in need of change.

Delegates Debate Lively discussion followed the introduction of the resolution, with some delegates expressing concern about the financial impact of the change on parents. Others, while sympathetic to parents, said they found that the current system is unbalanced.

“I’m a parent of a disabled child…but I’m also a board member, who represents the school district,” said delegate Melissa Sadin of Somerville. She noted that the American justice system is based on the principle of “innocent until proven guilty.” However, under the current process for special education disputes, “the IEP (individualized education plan) is inappropriate until proven appropriate.”

Other delegates expressed concern that the current process may promote unnecessary litigation.

Protecting Special and General Education Following the vote, NJSBA President Donald Webster Jr. assured the delegates that the Association believes firmly in programming to help disabled students achieve to their fullest potential. He noted that the resolution will give NJSBA the opportunity to address ways to control costs without harming either special or general education.

The Delegate Assembly is NJSBA’s major policy-setting body. Action by the delegates determines the Association’s positions before the state Legislature, the State Board of Education, Congress and the courts.

Bylaws Amendment In other business, the Delegate Assembly approved a bylaws amendment recommended by the Task Force to Study NJSBA Governance.

Under the provision, an individual must step down from an NJSBA or county school boards association leadership position upon the decision to run for a municipal or county governing body, or state or federal office or to assume the chair of a county or state political party. (The amendment applies only to the individual’s association leadership position and would not affect his or her board of education membership.)

The proposal passed, with support from 89 percent of the delegates.

See also:

Report of NJSBA Executive Director Dr. Lawrence S. Feinsod to the Delegates
Report of NJSBA President Donald Webster, Jr. to the Delegates