U.S. Supreme Court Hears Special Education Case on Burden of Proof The U.S. Supreme Court heard oral arguments on Oct. 5 to determine whether the family or the school district bears the burden of persuasion at a due process hearing in establishing that an Individualized Educational Program (IEP) is appropriate. The case, Schaffer v. Weast, is among a handful of special ... School Matters
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School Matters  |   November 01, 2005
U.S. Supreme Court Hears Special Education Case on Burden of Proof
Author Notes
  • Susan Boswell, an assistant managing editor of The ASHA Leader, can be reached at sboswell@asha.org.
    Susan Boswell, an assistant managing editor of The ASHA Leader, can be reached at sboswell@asha.org.×
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School-Based Settings / School Matters
School Matters   |   November 01, 2005
U.S. Supreme Court Hears Special Education Case on Burden of Proof
The ASHA Leader, November 2005, Vol. 10, 1-29. doi:10.1044/leader.SCM.10152005.1
The ASHA Leader, November 2005, Vol. 10, 1-29. doi:10.1044/leader.SCM.10152005.1
The U.S. Supreme Court heard oral arguments on Oct. 5 to determine whether the family or the school district bears the burden of persuasion at a due process hearing in establishing that an Individualized Educational Program (IEP) is appropriate. The case, Schaffer v. Weast, is among a handful of special education cases to reach the nation’s highest court. The case could shift the balance of power between parents and districts in IEP meetings and shape the outcome of due process hearings for decades to come.
Schaffer v. Weast is the result of a seven-year battle that began when Jocelyn and Martin Schaffer requested an eligibility evaluation for their son Brian for special education services in middle school. Brian attended a private elementary school but struggled as the result of an auditory processing disorder, attention deficit hyperactivity disorder, a learning disability, and a speech-language disorder. Meanwhile, the parents also applied for his admission to another private school.
Montgomery County Public Schools (MCPS) offered an IEP that included 15.3 hours of special education in inclusion classes and 45 minutes of speech-language treatment each week at a local middle school. The parents objected to the IEP, saying that it proposed a less intense program with a higher teacher-student ratio than the original private school where Brian was failing.
The parents placed Brian in a private school and requested a due process hearing seeking tuition reimbursement. The administrative law judge deemed both sides equally balanced and called the issue of burden of proof “critical” to the case.
Several years later, Brian attended a learning center at a MCPS high school under a different IEP where he graduated in 2003. He is now a junior at a small East-coast college.
Inside the Courtroom
The plaintiffs argued that if parents are required to carry the burden of proof, they will be less able to challenge districts over the appropriateness of an IEP.
MCPS argued that placing the burden of proof on school districts would make the IEP presumptively invalid and result in costly litigation, diverting scarce resources away from all children.
“I have never seen a case where a private party coming in and challenging government action does not have the burden of proof,” Justice David Souter said.
Other justices questioned the legislative history, legal precedents, and state law relating to burden of proof. They noted that the statute does not just cover the initial IEP, and questioned which party has the burden of proof when the parents agree to the initial IEP and then contest it, or when discipline issues arise.
William Hurd, of the law firm Troutman Sanders in Richmond, VA who represented the Schaffers, focused on the disparity in knowledge between the district and the parents. “If you let the school district slide by without being accountable, they’re likely to be less thorough in preparing their IEPs,” Hurd said.
In questions to the school district’s attorney, Gregory Garre, of Hogan & Hartson, the Supreme Court focused on the number of times the district initiates due process hearings in comparison to the parents and which party goes first in the proceeding. The justices also explored whether the allocation of burden of proof should be determined by state legislatures, the courts, or the U.S. Department of Education (ED)-and whether the Supreme Court needs to decide at all.
But as the arguments came to a close the discussion focused on a single issue-money.
“Is there more litigation in states that have burden of proof on the school system? Is it more expensive?” Justice Ginsburg asked of David Salmons, assistant to the solicitor general. Salmons provided supporting comments because the United States reversed an earlier position and sided with the school district in a recent amicus brief.
“In the largest volume of hearings, is the burden on the school and is there an explosion of litigation?” asked Justice Stevens.
Hurd noted that the cost of due process litigation averages about $22 per child if spread among all 6 million children receiving special education services in the United States.
Chief Justice John Roberts excused himself from the case. Although he did not provide a reason, he likely did so because the school district is represented by his former firm, Hogan & Hartson.
Rallying for a Cause
Outside the courtroom the case was overshadowed by the emotionally charged assisted suicide case, Gonzalez v. Oregon, which asked whether the federal government can prevent doctors from helping terminally ill patients take their own lives.
Amid a throng of media and demonstrators dressed in black were about 30 parents and students representing grassroots advocacy groups in Montgomery County carrying colorful signs.
“The burden of proof should be on the person writing the IEP. In Montgomery County, parents have to sue the school system to get the right to learn to read,” said Joan Sablaka, one of the 1,200 members of the MCneeds, a nonprofit advocacy organization for families and co-chair of the Montgomery County special education advisory committee.
Montgomery County spends more money than any other Maryland county on special education, noted Bob Astrove, another MCneeds parent. “There are zero dollars in the budget for this Supreme Court case, and funding will come out of special education services. Clearly, the school system should have to show that what they’re proposing will benefit the child,” Astrove said.
More than 20 disability organizations and nine states filed briefs in support of the Schaffers. Hawaii (joined by Alaska, Oklahoma, and Guam), the ED, the United States government, and the Council of Great City Schools filed briefs in support of MCPS.
The Court has until the end of the term in June 2006 to render a decision. The case is Schaffer v. Weast, No. 04-698. Visit the Wrightslaw Web site for background on the case.
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November 2005
Volume 10, Issue 15