This is another in a periodic series on the nuts and bolts of special education law. The series is intended as an overview of key concepts for beginners and a review for those readers who have been around the block.
The citations for information about due process hearings are:IDEA, § 615(f); 34 C.F.R. § 300.507 to .515
Concerning the burden of persuasion at due process hearings...
Schaffer v. Weast 546 U.S. 49, 126 S.Ct. 528, 44 IDELR 150 (2005). The SupremeCourt held that the burden of persuasion in an IDEA due process hearing is upon the party challenging the IEP. The “burden of persuasion” involves which party loses if the evidence is closely balanced. In any civil legal proceeding, if the evidence for both sides is equal, the party with the burden of persuasion loses. The Court exempted from its decision, however, the burden of persuasion applicable in those states that have laws or regulations placing the burden upon the school district. Note that the burden of persuasion is not the same as the burden of going forward, which concerns which party goes first in presenting evidence. To increase confusion, both the burden of persuasion and the burden of going forward are loosely referred to as "burden of proof" in legal circles. (I'm not sure why!)
Concerning the IDEA due process hearing process, the Court in Weast noted that such hearings are deliberately informal. The Court went on to note that the IDEA due process hearing was set up by Congress with the intention of giving the hearing officers the flexibility they need to ensure that each side can fairly present its evidence.
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