Governor Elliot Spitzer signed the Burden of Proof legislation on August 15 thus showing his continued support for children with disabilities and their families. This legislation was vigorously opposed by the New York State School Boards Association and the NYS Department of Education among others. A grass roots movement by NYS advocates resulted in thousands of you calling the Governor’s office urging him to sign the Burden of the Proof bill. Special thanks go to Ben Golden of NYSARC whose outstanding efforts in shepherding this bill through the NYS legislature for two successive years has finally met success.
We also thank Assemblywoman Catherine Nolan and Senator Andrew J. Lanza for sponsoring the bill and working so hard for its passage. The legislation places the burden of proof in special education impartial hearings on school districts except in the limited circumstance where parents have unilaterally placed their child in a private school. New York law from 1975 to 2005 held that the burden of proof was on the school districts. In 2005 the U.S. Supreme Court held in the Schafer v. Wiest that the burden of proof should be born by the party objecting to the individualized education plan (IEP), which was usually the parent, in states that had no statute allocating the burden of proof. The legislation signed by Governor Spitzer preserves New York practice prior to the Schafer case and levels the playing field by requiring school districts to justify their positions regarding student placement and services.