Don’t make schools shoulder burden of proof in IEP cases

New from me at Maryland Reporter: lawmakers should reject a bill that would require school districts to shoulder the burden of proof on whether their special ed plans are adequate. Current state practice “reflects the conventional rule, familiar from across our legal system, that the side seeking the law’s intervention shoulders the burden of proof.”

Excerpt:

It’s also a matter of basic fairness. Complaints often function in effect as accusations against responsible persons, such as educators or administrators, and requiring accused parties to show that they have *not* broken the rules isn’t what many of us would call fair….

As the fiscal note acknowledges, when complainants prevail in more cases, the underlying costs of providing special ed services are likely to increase, aside from the expenditure of resources on the hearings themselves….

And if you worry that schools are obsessively bureaucratic now, wait till word gets out that a complainant can come in later with any old crazy allegation and the burden will be on you as educator to disprove it, so you’d better document every single thing forever..

Full piece here.

A giant power grab over K-12 curriculum

HB 119, a giant step toward imposing a uniform and centralized statewide curriculum on Maryland’s K-12 schools, would subject county systems to financial penalties if they vary from state curricular dictates. The bill is sponsored by Del. Vanessa Atterbeary and Sen. Clarence Lam (both D-Howard). It passed the House of Delegates Friday on a 96-37 vote and now goes to the Senate.

Per WJLA, “According to the new version of the proposed legislation, if the State Superintendent determines a county board is not following the State Board of Education policy [on curriculum] or is authorizing students to opt out of instruction in a way that is not approved by the State Board, the state superintendent can direct the state comptroller to withhold funds from the county board. ‘10% and ultimately another 10% of the state aid to education for that local school system until they comply with every element of the standards,’ said John Woolums of the Maryland Association of Boards of Education (MABE),” which is strongly opposing the bill.

Parts of the bill grew out of the controversy over the state health and sex education curriculum, but after drastic revisions it now would apply across the whole range of curriculum, from math to social studies to arts to history. So extreme is HB 119 in fact that progressive school boards and conservative parent activists, at least in some parts of the state, have set aside their differences to unite against it. The Washington Post quotes Frederick County school board member Karen Ann Yoho as saying that “though school board members’ and parents’ views on the health curriculum have diverged, ‘we are all on board together with this one that we don’t want the state legislature mandating curriculum.’”

It’s hard to believe this bill wasn’t more controversial in the General Assembly.

In miniature, March 8

All-Montgomery-County edition:

• Under proposed county bill, police could “pick any area in the county which they believe has a crime problem and impose requirements on late night businesses located therein” including requiring submission and county approval of a “late night business plan.” [Adam Pagnucco, Montgomery Perspective]
• Teaming up with private lawyers to chase bucks: county sues consultants McKinsey & Co. seeking damages over opioid overuse [Tadiwos Abedje, WTOP]
• Rockville’s charter review commission recommends ranked-choice voting in municipal elections [Patrick Herron, The MoCo Show; me last month encouraging Frederick to do the same]
• Endlessly stalling on I-270 capacity costs jobs: government contractor will depart Gaithersburg for Fairfax, cites “more convenient access” for D.C.-area employees, customers and other partners [Jeff Clabaugh, WTOP]
• Maryland office of Council on American-Islamic Relations (CAIR) calls on county school system “to amend its new school bathroom guidelines in response to privacy complaints reported to the organization in recent weeks.” [Eugene Volokh]  
• On the question of traffic safety, pending bills before county council pull in opposite directions: “if police cannot stop cars for not using headlights in darkness and bad weather, that is a direct threat to pedestrians.  And if police cannot stop jaywalkers, that’s an obvious road safety problem.” [Pagnucco]

Guns-as-public-nuisance bill would seek to end-run federal law

General Assembly bills SB 0113 (Waldstreicher) and HB 259 (Atterbeary and Rosenberg), styled “The Gun Industry Accountability Act of 2023,” would open up mass litigation against the gun industry for creating a “public nuisance” in Maryland through the “sale, manufacture, distribution, importation, or marketing” of “”firearm-related product[s).”

Bills like this run square into the federal Protection of Lawful Commerce in Arms Act (PLCAA), a federal law that aims to prevent states and their courts from using lawsuits in exactly this way. I testified in favor of PLCAA before Congress back when it was pending, and have written about it many times since (e.g. here, here, and here). In brief, Congress sought to restore the traditional common law handling of gun supplier liability (which covered a few situations such as exploding guns and knowing sale to a wrongdoer) while excluding the much more recently concocted class of lawsuit that seeks to assign liability to a supplier over a firearm sold to a lawful buyer that operates exactly as it was designed to do.

Just a few weeks ago, a federal judge struck down a New Jersey law similar to the Maryland proposal. Here’s the opinion in that case, National Shooting Sports v. Platkin, filed Jan. 31.

Defenders of such legislation, which has now passed in several states, counter by pointing to a case in which a federal judge in Albany upheld New York’s version against a preliminary challenge — a holding yet to be tested at higher federal courts. They also cite a case allowed to go forward in which plaintiffs invoked a Connecticut advertising law that, it was argued, was far enough afield from product liability not to be excluded in PLCAA’s text.

Lawsuits aiming to designate firearms as somehow a “public nuisance” go back some years, and they aren’t a proper use of public nuisance law. Twenty years ago I wrote about the courts’ rebuke to a suit by then-New York attorney general Eliot Spitzer attempting to stretch public nuisance law to cover guns.

Historically, courts carefully cabined public nuisance law to address the direct effects of a localized activity — smoke, noise, the escape of animals from enclosures, and so forth. Should the historic limits be breached, there is no reason public nuisance could not logically be used to go after countless other market activities that are thought to have social costs. Blaming obesity on Ben & Jerry’s? Why not?

In sum: SB 0113 is bad and unfair on its substance, and there’s much reason to believe the U.S. Supreme Court would in time strike it down as in conflict with federal law, the Second Amendment aside.

Maryland Shall Issue has also submitted testimony on the legislation’s flaws.