Stories and Grievances: Special Education
Schaffer v. Weast is Decided by the US Supreme Court: Precedent is Set For Burden of Proof
The majority held that, "The burden of proof in an administrative hearing challenging an IEP is properly placed upon the party seeking relief. In this case, that party is Brian, as represented by his parents. But the rule applies with equal effect to school districts: If they seek to challenge an IEP, they will in turn bear the burden of persuasion before an ALJ."
From Wrightslaw: Schaffer v. Weast
On Monday, November 14, 2005, the U. S. Supreme Court issued a decision in Schaffer v. Weast. Justice Sandra Day O'Connor wrote the decision and was joined by Stevens, Scalia, Kennedy, Souter, and Thomas. Justices Ginsberg and Breyer filed dissenting opinions. Chief Justice Roberts recused himself and did not take part in the case. Read decision. Read Alert.
The majority held that, "The burden of proof in an administrative hearing challenging an IEP is properly placed upon the party seeking relief. In this case, that party is Brian, as represented by his parents. But the rule applies with equal effect to school districts: If they seek to challenge an IEP, they will in turn bear the burden of persuasion before an ALJ." Read decision.
In How Will the Decision in Schaffer v. Weast Affect YOU?, Pete Wright explains that the implications of this decision depend on where you live. He describes what you must do to prevail in a due process hearing - regardless of who has the Burden of Proof.
On Wednesday, October 5, the U. S. Supreme Court heard oral argument in Schaffer v. Weast. Pete shares the notes he took during oral argument and offers his observations and impressions.
On August 9, 2005, the National Council on Disability (NCD) issued a Position Paper on the Scaffer case, IDEA Burden of Proof - On Parents or Schools? The author of this Position Paper is Pete Wright.
The NCD's position is that the burden of proof should always be on school districts. This comprehensive paper describes the history of the Schaffer case and the Court's history in resolving similar cases where the federal statute does not assign the burden of proof to one party or the other. Download
Supreme Court Will Hear Oral Argument in Schaffer v. Weast on October 5 - The high court’s decision about who bears the burden of proof in IEP disputes is of enormous importance, and may shift the balance of power in IEP meetings and due process hearings. (July 22, 2005)
On February 22, 2005, the U. S. Supreme Court agreed to resolve a split among circuits on whether parents or school districts bear the burden of proof in special education due process hearings. The Court will hear probably hear oral argument in Schaffer v. Weast in October or November, 2005. Read article
In the 30 years since the special education law was enacted, the high court has only heard a small handful of special education cases. The most critical are Rowley, Burlington, Honig v. Doe, Florence County v. Shannon Carter, and Cedar Rapids v. Garret F.Their last ruling came in 1999 when the Court found in favor of Garret F., a child who needed related services in Cedar Rapids v. Garret F.
Background of the Schaffer v. Weast Case
In 1998, the administrative law judge (“ALJ”) imposed the burden of proof on the parents and ruled for the school district on the merits of the child’s individualized
education program (“IEP”).
In 2000, the district court reversed the ALJ on the burden of proof issue, placed the burden on the school district, and remanded the case for further proceedings.
This decision is published as Brian S. v. Vance, 86 F. Supp. 2d 538 (D. Md. 2000).
In 2000, with the burden of proof placed on the school district, the ALJ ruled for the parents on the merits, holding that the IEP proposed by the school district was
inappropriate and that the program favored by the parents was appropriate.
In 2001, without deciding the burden of proof issue, the court of appeals vacated the district court’s 2000 decision and remanded the case for further proceedings,
including an appeal from the ALJ’s second decision on the merits. The opinion is found at Schaffer v. Vance, 2 Fed. Appx. 232 (4th Cir. 2001) (per curiam).
In 2002, the district court again placed the burden of proof on the school district, and it affirmed the ALJ’s 2000 ruling for the parents on the merits. This opinion is
published as Weast v. Schaffer, 240 F.Supp. 2d 396 (D. Md. 2002).
In 2004, the U. S. Court of Appeals reversed the district court on the burden of proof issue, imposed the burden on the parents and remanded the case. This decision is published as Weast v. Schaffer, 377 F.3d 449 (4th Cir. 2004). In this decision, the appeals court assigned the burden of proof to the party who initiated the special education due process hearing and created a "split among circuits":
"Other circuits are split - and splintered in reasoning - on this question. Three circuits assign the burden to the parents, and four (perhaps five) assign it to the school system."
"Under the Individuals with Disabilities Education Act, when parents of a disabled child and a local school district reach an impasse over the child’s individualized education program, either side has a right to bring the dispute to an administrative hearing officer for resolution. At the hearing, which side has the burden of proof – the parents or the school district?" (Petitioner's Brief, page 2)
Petitioner's Brief filed on behalf of Brian Schaffer and his parents by his attorneys, William H. Hurd and Michael J Eig. (101 pages)
Amicus Briefs Filed in Support of Brian Schaffer
By late April, more than 20 organizations and nine states had filed a amicus briefs in support of Brian Schaffer and his parents.
Amicus Brief Filed on behalf of Disability Organizations including the ARC, the Autism Society of America, the Epilepsy Foundation, NAMI, United Cerebral Palsy, and the National Law Center on Homelessness and Poverty. (40 pages)
Amicus Brief Filed on Behalf of Law and Disability Organizations including the Council of Parent Attorneys and Advocates; National Association of Protection and Advocacy Systems; American Association of People with Disabilities; National Children's Law Network; Education Law Center of New Jersey; Education Law Center of Pennsylvania; Alexander Graham Bell Association for the Deaf and Hard of Hearing; Bazelon Center for Mental Health Law; Center for Law and Education; University of Richmond's School of Law Disability Law Clinic; Disability Rights Education and Defense Fund, Inc.; TASH, Inc.; Western Law Center for Disability Rights. (39 pages)
Amicus Brief on Behalf of Various Autism Organizations including the Autism Society of America, Northern Virginia Chapter (ASA-NV); Parents for Autistic Children’s Education (PACE™); Parents Of Autistic Children of Northern Virginia (POAC-NoVA), Inc.; and Unlocking Autism (UA). (34 pages)
Amicus Brief Filed on behalf of Nine States: Connecticut, Illinois, Kansas, Minnesota, Nevada, Rhode Island, Virginia, Washington, and Wisconsin. Eight states joined with the Commonwealth of Virginia and filed an Amicus Brief supporting the parents.
The state of Maryland did not file a brief on behalf of Montgomery County and explained the reason in a letter to a Maryland parent.
Briefs in support of Montgomery County MD and Superintendent Weast
By June 24, 2005, briefs had been filed on behalf of Montgomery County by Hawai'i (joined by Alaska, Oklahoma and Guam), Montgomery County and Weast, the Virginia School Board Association, the Council of Great City Schools, and the U. S. Department of Education:
The Respondent: Weast and Montgomery County, MD.
Amicus brief on behalf of Virginia School Board Association and others
Amicus brief on behalf of the Council of Great City Schools and others
Brief on behalf of the United States Department of Education.
Petition for Certiorari
Petition for Certiorari prepared by William Hurd, Esq., Brian Schaffer's attorney.
U. S. Court of Appeals for the Fourth Circuit
Weast v. Schaffer, 377 F.3d 449 (4th Cir. 2004)
Weast v. Schaffer, 377 F.3d 449 (4th Cir. 2004) (in pdf)
Joint Appendix Filed in the U. S. Court of Appeals for the Fourth Circuit in Weast v. Schaffer. (180 pages)
U. S. District Court for the District of Maryland
Weast v. Schaffer, 240 F.Supp. 2d 396 (D. Md. 2002) - In 2002, the district court placed the burden of proof on the school district and affirmed the Administrative Law Judge's 2000 ruling for the parents on the merits.
Note: Six decisions have been issued in this case since 1998. See Background of the Case
June 24, 2005. Superintendent Weast and Montgomery County Public Schools filed their brief with the U. S. Supreme Court. The U. S. Department of Education, reversing themselves from their earlier position before the Fourth Circuit, this time filed a brief in support of Weast. Numerous other organizations and several states filed briefs in support of Weast. We do not have all briefs yet. The listing of those received and the URL's are listed above.
April 29, 2005. An amicus brief was filed on behalf of various autism organizations including the Autism Society of America, Northern Virginia Chapter (ASA-NV); Parents for Autistic Children’s Education (PACE™); Parents Of Autistic Children of Northern Virginia (POAC-NoVA), Inc.; and Unlocking Autism (UA). (34 pages) Download
April 29, 2005. An amicus brief was filed on behalf of several law and disability advocacy organizations. These organizations include the Council of Parent Attorneys and Advocates; National Association of Protection and Advocacy Systems; American Association of People with Disabilities; National Children's Law Network; Education Law Center of New Jersey; Education Law Center of Pennsylvania; Alexander Graham Bell Association for the Deaf and Hard of Hearing; Bazelon Center for Mental Health Law; Center for Law and Education; University of Richmond's School of Law Disability Law Clinic; Disability Rights Education and Defense Fund, Inc.; TASH, Inc.; Western Law Center for Disability Rights.
April 29, 2005. An amicus brief was filed on behalf of several disability advocacy groups including the ARC, the Autism Society of America, the Epilepsy Foundation, NAMI, United Cerebral Palsy, and the National Law Center on Homelessness and Poverty in Schaffer v. Weast. Download.
February 22, 2005. The U. S. Supreme Court granted certiorari to hear Brian Schaffer's appeal of an adverse ruling from the U. S. Court of Appeals for the Fourth Circuit. The Fourth Circuit decision assigns the burden of proof to the party who initiates the special education due process hearing. Read article
Comments from a special education advocate who joined with Parentadvocates.org in the amicus curiae filed in support of Jacob Winkelman:
You Don’t Know What You Got Until It’s Gone:
Due Process Rights for Special Education Before the US Supreme Court
Ilise L. Feitshans JD and ScM
120 Warwick Rd
Haddonfield NJ USA 08033
856 428 0605
Member of the Bar of the US Supreme Court
Counsel for Proposed Amicus Parents from the State of New Jersey
In the Matter of : Schaffer v Weast US Supreme Court Docket Number 698 04 698.
It is rare indeed, that a US Supreme Court case has the ability to touch the life of every person in the nation. Education is one of those rare areas of the law where opinions pronounced by the US Supreme Court reverberate for generations throughout the land, as in the case of Brown versus Board of Education of Topeka Kansas, perennially controversial since it was announced over a half century ago. The United States Supreme Court heard oral arguments on Wednesday, October 5, 2005 in. Schaffer v. Weast a case that will define the shape of adjudication in special education quarrels between parents and school districts, where rules of procedure and standards of expertise taken in evidence are quite unlike traditional legal cases. Under US Law, every student in the USA has a right to claim the need for services or special education. Many students have unrecognized disabilities, and the confusing labyrinth of IDEA law has made it difficult to enforce special education rights. Thus, students may lose rights they do not even know they possess if the US Supreme Court does not decide wisely. The opinion that will be rendered in this case may therefore shape the future of education in the USA.
In Schaffer, a family was awarded reimbursement for half of a school year's tuition because the school district did not provide appropriate services to a disabled student.. On appeal, in litigation that already cost each side more than the amount of money in dispute, the Fourth Circuit Court of Appeals decided against the family. After a second trial, and after the student involved had graduated from high school, the case made its way to the attention of the US Supreme Court. The question presented to the high Court was: what burden of proof should be assigned to a plaintiff who seeks relief for harm under the Individuals With Disabilities Education Act , know as IDEA.
Since 1990, IDEA has become a vehicle for achieving the goals of the more powerful statute, Americans With Disabilities Act of 1990 (ADA) 42 U.S.C. § 12101(a)(3) by removing barriers to equal opportunity to education for disabled students. In his nomination speech in 2000, President Bush spoke of the dangers of the "soft bigotry of low expectations" regarding the education and potential achievement of people with disabilities. Consistent with this promise to raise expectations for the disabled, he stated "My focus will be on making sure every child is educated, as the president of the United States as well. Both parties have been talking about education reform for quite a while. It's time to come together to get it done so that we can truthfully say in America, , "No child will be left behind, not one single child." (1)
Accountability is a major component of the IDEA(2). Under the IDEA, a State must have in effect "policies and procedures to ensure that .. (a) free appropriate public education is available to all children with disabilities residing in the State...." 20 U.S.C. § 1412(a). (FAPE) Education is not a constitutional right in the USA. Through the magic of the legal theory called "federalism" which defines the role of the federal government in relationship to the individual states, the US Congress mandates not only standards for education, but also the requirement that students who are classified as having "special needs" must be granted FAPE.
Congress, in writing IDEA understood the speculative nature of the IEP document and therefore sought to make it flexible, due to the changing nature of development in young children; the prospective nature of the IEP as a planning document for further instruction, and the reality that new technologies will be developed or become commonly available. Under the federal special education apparatus, "funding follows the child" in order to promote these goals. IDEA's purposes include but are not limited to: identify disability, remediate disability and enhance the areas of their abilities to become productive leaders, taxpayers, voters and parents for the benefit of all society.
IDEA's statutory mandate requires the creation of Individualized Education Plans (IEPs) in order to achieve the potential in each disabled student. Millions of special education students classified under IDEA require low cost accommodations, paid by funding from state and federal governments: ungraded spelling, notetakers, extended time (3) . Only a small percentage of those students have an out of district placement; the heart of the Schaffer case. The vast majority of students who have an IEP also enjoy mainstream coursework in so-called "regular education" classrooms, with relatively small overhead for items such as notetaking, some assistive technology (AT) ungraded spelling, a private room for tests, or extended time on exams. Some students use AT such as draftbuilder, inspiration or co write software for writing; or scanned documents from Kurzweil Reader or Winword program. AT equipment that represents a one-time fixed cost to the school system.(4). Some students are granted separate proctors who read aloud problems or assignments, and have assistance with organizing their assignments . Specialized teaching methods include "Accommodations or bypass strategies allow for modification of the learning environment or expectations (such as using a word processor and provide a scaffolding to support more successful functioning. It is important to build on the child's skills to support areas of weakness, such as the child with stronger visual than language skills using pictures and diagrams to help understanding of written material”(5)
Unfortunately, because the US Supreme Court Justices were unaware of the text, purposes and procedures of the special education laws involved in the case, they were misdirected to a discussion of per capita cost of educating disabled students, instead of discussing the crying need for accountability that is deeply rooted in the legislative history and text of the statute Sadly, if the Court decides unwisely, the case may trim back rights education for students who might not even know they possess those rights . According to attorney Areva Martin, "The disability community is afraid that if the Supreme Court upholds the 4th Circuit Court's decision assigning the burden of proof in special education cases to parents, the promise of an improved delivery of special education to children with special needs as enunciated in the newly revised federal law, Individuals with Disability Education Act (IDEA 2004), will be undermined and millions of children across the nation will face the prospect of receiving a substandard education. Alternatively, school districts are concerned that if they are assigned the burden of proof in such cases, schools will not be able to meet their obligation to educate children with disabilities due to reduced federal and state funding.” (6)
The Law Professor's Ideal: How Could the Facts Be In Equipoise?
Good legal training is in part about the ability to ask the right question when framing a case. As one of the Justices noted at the very outset of the Oral Arguments before the US Supreme Court on Wednesday October 5 2005, "This case is a law professor's dream. When have you actually seen a case where the facts were in equipoise?"
Indeed, that Justice's astute observation captured the essence of the problem. Even though the administrative law judge claimed the facts presented in evidence by each side were of equal weight and thus "in equipoise", it is very possible that some of those facts were given an undue weight or not granted enough consideration.
It is surprising that the Petitioners never advanced an alternative method for weighing the evidence in IDEA due process cases, when confronted with this question. The notion of school district accountability is deeply embedded in the IDEA. School districts under the law and in reality must be the agents for protecting student rights. In Lascari v. Board of Education, 560 A.2d 1180, 1188 (N.J. 1989). The New Jersey Supreme Court explained the significance of requiring the school district should always bear the burden of proof. Oberti, 995 F.2d at 1219. This is consistent with the view later expressed in Oberti v. Board of Education, 995 F.2d 1204 (3d Cir. 1993) which reflects the school' advantage when a dispute arises under the Act: the school has better access to the relevant information, greater control over the potentially more persuasive witnesses (those who have been directly involved with the child's education), and greater overall educational expertise than the parents.
School districts are paid a fixed sum of money from the state and the federal government for each student classified, but the services needed during the academic year may exceed the support envisioned by the IEP plan, school district face an inherent conflict of interest that should be reflect in their burden to withhold services to any student. IDEA has a "death penalty" of out of district placement at school district expense once it is shown that the school district failed to provide needed services, this negative incentive deliberately written into the law has had the perverse effect of causing school districts to hide their errors and deprive students of services even in basic cases of daily classroom needs for low cost or free services such as ungraded spelling, extended time, notetaking or low cost assistive technology (AT). This creates a statutory disincentive for providing services. Thus school districts are resistant to committing resources to IEP text, often fail to have regular education classroom teachers read IEP text, and extremely reluctant to modify an existing IEP during the course of the school year to reflect new evaluations, data concerning the student's disability or changed circumstances. Daily classroom activities including teaching methods, use of ungraded spelling and extended time and a variety of low cost assistive technology (AT) are the heart of an amazing number of due process hearings, administrative complaints and contentious IEP meetings. The inherent imbalance in the power and the perverse financial incentives written into IDEA itself suggest that school districts have an inherent budgetary interest in camouflaging disability, and thus calls into question whether the facts can ever be in equipoise. At no time during oral arguments did Petitioner's Counsel William Hurd Esq. set forth the process for eligibility or development of an IEP. Rather, the Justices remained baffled, if not mystified, how such straightforward questions as whether the IEP was adequate could be the subject of any debate at all.
Accountability, Financial Incentives and FAPE
When the facts rest in equipoise, if the parents bear the burden of proof, what accountability will remain for the school districts?
The IEP is a contract under law. Signing the IEP creates a legal document that binds the student, parent and school to the terms of this IEP. A complex web of teacher, administrative and school system accountability permeates the methods for implementing an IEP. As more information is developed about the student's special needs, through evaluations and detailed discussion of progress in light of accommodations, the IEP can be modified to embrace successful methods of accommodation that might not have been tested at the time of its writing. Although goals may change across time, in order to operationalize these rights, the IEP is only meaningful if parents are able to hold local school districts accountable for implementing the contract upon which their child's education relies. Thus, the IEP is a living contract, prospective in nature, with a built-in mechanism that enables a well-written IEP to reflect changing needs of developing students in the course of the academic year. For this reason, the law provides a period of up to fifteen (15) days which can be extended in special circumstances. In this 15 days, parents and students can review the document and discuss its meaning. Parents can ask themselves, their children and other educators whether the goals for the academic career of the student are correct based on the available data and functional assessments, when evaluating whether the objectives for the academic year. Therefore, many parents have a lawyer or student advocate representative at IEP meetings, and many more people consult professional representatives before signing the document.
As one parent from Cherry Hill New Jersey has stated, "the courts don't understand what a dramatic thing that is. Parents who sue school districts never in their wildest dreams expected to sue-they bring their child to school and they expect a reasonably good education. For a parent to sue a school means that there is more than just frustration, there is a situation where the child is hurt, the child is not being educated and there is nowhere else to go". This emotionally charged backdrop of most due process claims was not brought to the attention of the court. People-voters, taxpayers whose children attend public school--- care about their children's needs, regardless how defined. When their children are harmed or not educated, people will muster whatever available resources to fight for their child's right to a Free Appropriate Public Education (FAPE).
In conclusion, the core value of education in the USA, and public education in particular, has long been a pillar of our collective understanding about democracy in this nation. Consequently, there is a tacit, if not express, social contract between the individuals, the federal government and the states to provide for FAPE beyond any statutory requirements. This is borne out by the demographic reality that millions of people in this nation have attended and benefited from public education for centuries. When a situation rises to the point where parents must sue a school district in order to educate their child, there is an implicit question of accountability and a sense of betrayal by the school district in upholding its part in this long-standing reliable social contract. This is the real dilemma the US Supreme Court must decide in Schaffer v Weast.
(1) (President Bush’s Statement Announcing the Start of His Education Initiative: THE NEW YORK TIMES Jan 24, 2001 Federal News Service Inc)
(2) See: Ilise L. Feitshans, Counsel of Record Brief Amicus Curiae That Was Not Granted Permission By Respondent On Behalf of Parents of Students With Special Needs in New Jersey filing Individually and on Behalf of Their Children, In the Matter of : Schaffer v Weast US Supreme Court Docket Number 698 04 698.
(3) Feitshans spoke candidly and forthrightly about the absences of support services for Honors classes and the lack of peer support or tolerance in South Jersey and in Haddonfield. Noting that he had been asked to speak about services, "What services?" he said. The services to help me in school are non-existent. Therefore there are not even services to prepare me for transition services. That is a silly sentence, but true. Personally I believe that most LD students end up dumped in lower performing colleges because of the lack of support in high school."
(4) IEP Team members in addition to parents, students, administrative staff, legal representatives, social workers, guidance or psychological counselors may include sign or foreign language translators, consultants regarding unusual circumstances, or family friends “A student Study Team is a multidisciplinary team composed of school personnel who work with the classroom teacher to design academic and behavioral interventions for children with learning disorders within the regular classroom” Lambros, Katina M. and Leslie, Laurel K, “Management of the Child With a Learning Disorder, Pediatric Annals Vol 34 Number 4 April 2005 p. 275-287 at 277
(5) Kelly, Desmond P “Learning Disorders” Pediatric Annals Vol 34 No. 4 Apr 2005 p. 260
(6) See: AREVA MARTIN: Long Awaited Supreme Court Decision Provides Opportunity for Reexamination of Adversarial Special Education Hearings 213-388-4747 or www.martin-martin.net