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Burden of Proof on Schools?
Virginia Senate Holds Hearings
on Scholarships for Children with Disabilities

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On Thursday, January 26, 2006 the Education and Health Committee of the Virginia Senate heard testimony on Senate Bill 241 [http://leg1.state.va.us/cgi-bin/legp504.exe?061+ful+SB241] which would amend the special education statute to include a statement that:

"The school division shall have the burden of persuasion in proceedings pursuant to this subsection.
 
Senator Patricia S. Ticer from Alexandria is the Chief Patron of this Bill. There is strong opposition to the Bill from school districts. The Committee received extensive written comments.
 
On Thursday, January 26, attorneys Pete Wright and Bill Hurd, and parents Bruce Jennings and Teresa Champion testified before the Committee in support of the Bill. School Board attorney Kathy Mehfoud testified in opposition.

Questions from some of the Senators reflected concerns about the possibility of increased costs to school districts because of a fear of increased litigation.

In response to these concerns, Mr. Hurd provided data about four states that place the burden of proof on school districts and that had no due process hearings during the previous year.

Pete Wright testified that he expected the number of due process hearings to decrease because schools would be motivated to negotiate with parents instead of drawing lines in the sand and saying, "This is the program we will provide - take it or leave it." Fewer hearings will lead to a decrease in the costs of litigation.
 
Senator Edwards and Senator Martin expressed very strong support for the Bill and wanted it to pass. Other Senators were ambivalent or opposed.

On Thursday morning, the fate of Senate Bill 241 was uncertain. Would SB 241 be reported out of committee or would it die?

During the hearing, Senator Janet Howell advised that she too, had a child with an IEP. Fearing that SB 241 might be defeated, Senator Howell proposed that the Bill be carried over, and that a special committee be appointed to study the financial impact of the Bill and report their findings to the Committee.

The Senators voted. Senators Edwards and Martin voted against the proposal to carry the Bill over. The majority of Senators voted to carry the Bill over to next year and to appoint a special committee to study the financial impact.
 
Senator Ticer thinks that the special committee will find that SB 241 will not have an adverse financial impact on school districts. This data will give the Bill a much higher chance of being reported out of the Committee and voted on by the the full Senate next year.
 
In the wake of the U. S. Supreme Court decision in Schaffer v. Weast, similar struggles about changing state statutes are occurring around the country. Some states are working on legislation similar to SB 241. Other states, including Alaska, are moving in the opposite direction.

Hearings on Private School Scholarship Program for Children with Disabilities
 
On Thursday, February 2, the Virginia Senate Education and Health Committee will hold hearings on Senate Bill 545 (SB 545) which proposes to create private school scholarships for children with disabilities. This summary describes the Bill as follows:

“Establishes a scholarship program on behalf of disabled students in the Commonwealth to provide scholarships to a private school of choice for students with disabilities for whom an individual education plan has been written. The student's parent also has the option to enroll the student in another public school in the division, or in another public school in an adjacent division. Only nonsectarian private schools in Virginia holding a license to operate as a school for students with disabilities may participate in the Scholarship Program. The bill also requires the Board of Education to issue guidelines to aid local school divisions and private schools in the implementation of the Program.” [http://leg1.state.va.us/cgi-bin/legp504.exe?ses=061&typ=bil&val=sb545&Submit=Go]
 
The proposed program is similar to the McKay Scholarship program in Florida. The McKay Scholarship program is described on the Florida School Choice website [http://www.floridaschoolchoice.org/Information/McKay/] as follows:
 
“Florida's school choice programs ensure that no child will be left behind by allowing parents to choose the best educational setting—public or private—for their child. The McKay Scholarships for Students with Disabilities Program provided over 15,000 Florida students with special needs the opportunity to attend a participating private school during the 2004-2005 school year. The McKay Scholarships Program also offers parents public school choice. A parent of a special needs student who is dissatisfied with the student’s current school may choose to transfer the student to another public school.”
 
The McKay scholarship program has received high praise from many Florida parents of children with disabilities.

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