Struggles Over Special Education: Indiana’s Legislative Setback

Legislation intended to help families of students with disabilities navigate disputes over special education services with Indiana school districts appears to have failed in the General Assembly. This legislative initiative aimed to create a more equitable process for parents seeking to secure the educational services their children need. When schools and families disagree over special education services, parents can request something called a due process hearing — similar to a court case.

It’s also a traumatic and adversarial process for families and schools that can rack up hundreds of thousands of dollars in legal fees and destroy relationships between parents and district employees. The emotional toll of these disputes can be overwhelming, often leading to increased stress and anxiety for families who are already facing challenges associated with raising a child with disabilities.

Language in House Bill 1380 would have shifted the burden of proof in due process proceedings from parents to schools in certain circumstances; that means districts would have to prove they provided an appropriate education to a student. Currently in Indiana, and in most states, parents are required to prove to an independent hearing officer that the school hasn’t met their legal obligation to provide a free and appropriate education. Several states, however — including New York, New Jersey, and Connecticut — place the burden on school districts.

The bill also included a provision that would have barred school districts from requiring parents to sign non-disclosure or confidentiality agreements as part of a special education settlement agreement. WFYI previously reported that schools frequently request NDAs as a condition of a settlement, which can further complicate the process for families seeking clarity and support.

House Bill 1380, which includes many unrelated components, passed out of the House with overwhelming support — 91-7. However, lawmakers on the Senate Education and Career Development Committee passed an amendment last Wednesday that stripped the language pertaining to shifting the burden of proof and NDAs out of the bill. They also added a provision that would make independent hearing officers — those tasked with overseeing and issuing a determination in due process hearings — state employees.

During a Senate committee hearing, Rep. Bob Behning (R-Indianapolis), a key architect of House Bill 1380 and chairman of the House Education Committee, expressed optimism about the potential impact of the legislation. He argued that the changes would likely result in less litigation because it incentivizes both schools and families to participate in mediation and facilitated individualized education program meetings. He also emphasized that prohibiting NDAs in settlement agreements is about fairness. “I don’t think it would negatively impact the kids — the flip of burden of proof, it actually is a huge benefit to the kids,” Behning responded.

Sen. Andrea Hunley (D-Indianapolis) raised concerns from districts about the elimination of confidentiality agreements in special education settlements, suggesting that such measures could lead to financial discrepancies being shared publicly. “And so they were saying that it could actually become problematic for the district if, say, one family was able to share that they got $300,000 when they settled, and another family got $600,000,” Hunley noted. Behning countered that the legislation wasn’t about driving money to families but rather ensuring that students with disabilities receive the services they need.

Multiple organizations representing the interests of school boards, administrators, and teachers previously testified against the bill in both House and Senate hearings. Joel Hand, a lobbyist for the American Federation of Teachers for Indiana and the Indiana Coalition for Public Education, stated, “I am greatly offended that we would ever consider adopting a provision that shifts the burden of proof from the one making the accusation to the one who’s being accused. This is tantamount to being guilty until proven innocent.”

Conversely, advocates for children with disabilities testified in support of these measures. They explained that many families face an uphill battle in disputes over special education with schools; districts have more financial resources, expertise, and readily available attorneys to fight claims that they aren’t providing students with services they’re entitled to under the law. Cheryl Clemens with Decoding Dyslexia Indiana emphasized that parents typically file a due process request and hire legal counsel only after they’ve exhausted all other options. She said districts, given their power in these cases, are best positioned to bear the burden of proof. “We also believe that families should not be silenced from sharing their stories,” Clemens added. “Instead, we as a state should seek to learn from our mistakes and put actions in place to ensure that we’re not continuing to make the same mistakes.”