AFER Joins Petition to Change the Burden of Proof

On January 27, 2022, AFER joined 15 other civil rights and legal services organizations and individuals in Washington state in a rulemaking petition to change the burden of proof in due process hearings to school districts.

The petition was submitted by Professor Lisa Brodoff at the Seattle University School of Law’s Ronald A. Peterson Law Clinic.

In the words of Professor Brodoff, “This important new rule is needed for so many reasons: First, OSPI has the authority to change the burden to school districts via rulemaking under Washington’s OSPI statute and the Administrative Procedures Act (at least 13 other Washington State agencies have done exactly what we are requesting by promulgating over 20 rules that set the burden of proof in their administrative hearings using this general rulemaking authority); Second, OSPI should promulgate this rule because placing the burden of proof on school districts will even the unequal power dynamic in hearings; it will make the hearing system more efficient and equitable; and it will better align with OSPI’s intent, mission, and values to have this fair and just rule in place. Lastly, OSPI should adopt the proposed rule in order to comply with the Washington State Constitution and IDEA. The proposed rule will facilitate a more racially equitable and just administrative hearing process that will ultimately provide children with disabilities the appropriate education they deserve and require as a right. Thank you for considering this petition and memo in support; we hope that the inequities created by placing the burden on the parents of children with disabilities are rectified by the granting of the petition and rulemaking.”