Ron Drake
Burden of Proof in DCPS Administrative Hearings
December 14, 2005

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Testimony to the Board of Education

I am Ron Drake. I am a long-time resident and community activist in ard 2. I have practiced special education law and handled pro bono cases for many years in D.C.

I oppose the administrative proposal to shift the burden of proof in special education hearings from DCPS and impose it on parents. Attached is a copy of a burden of proof case just issued by the Court, captioned Jenkins v. D.C. I represented the unsuccessful parent. In that case, the Court that just a minimal showing by DCPS was sufficient for the DCPS to carry the burden of proof. So much for the administration's contention that the parent has the advantage.

If you place the burden of proof on the parent, DCPS will win more cases. After all, DCPS has at its instant command the institution, with all its might and power. The playing field will tilt mightily against those of little means, who are my clients. We will be unable to marshal evidence, obtain discovery, or gain access to witnesses necessary to prove our case. Even though parents have the right to compel witnesses, DCPS employees do not appear as witnesses for parents, even when compelled. Do you want to win more cases and save money, all at the expense of the most vulnerable among us?

Further, all DCPS must do is follow the law, specifically the Retention Regulation (5 DCMR, Sec. 2201.10), often referred to by DCPS as the Drake Rule, which is also attached. That Rule requires DCPS to refer a child for assessment when DCPS retains that child. If DCPS simply complied with the Drake Retention Rule, most cases would never come to a hearing. Oh, by the way, at the request of DCPS officials, some of whom are still around, the Control Board purported to repeal that Rule. They mishandled that effort, too. A hearing officer has since found that the Drake Retention Rule remains in full force and effect.

Finally, as you consider due process hearings, it is imperative that you adopt a regulation that allows both DCPS counsel and parent's counsel to recuse a hearing officer for bias. We presently have some excellent hearing officers. However, we have two who should never be permitted to decide the fate of a child seeking fairness at a hearing. One is not competent in the law. The other's judicial temperament is so flawed, and his bias is so inflammatory, that he has unalterably harmed at least five students that I represented.

Surely, we can do better. First leave the burden of proof where it now rests, on DCPS. Second, mandate DCPS to comply with the Retention Rule. Third, adopt a recusal rule fair to both sides.