Published Online: September 27, 2005
Published in Print: September 28, 2005, as Best Evidence

Best Evidence

School districts and parents disagree over students' special education plans all the time. Next week, one such case makes it to the U.S. Supreme Court.

Before there was ever Schaffer v. Weast, a closely watched education case of the U.S. Supreme Court term that starts next week, there was Brian Schaffer, an affable, sports-loving student from suburban Washington.

Brian, now a 21-year-old college junior, spent prekindergarten through 7th grade at Green Acres School, a 320-student Rockville, Md., private school where his parents say he had the benefit of small class sizes and teachers who could accommodate his needs, which included attention deficit disorder, speech and language delays, and other learning disabilities. In a situation with too many distractions, he would start to lose track of what was being asked of him. But in smaller groups, “he was able to participate more like a regular class member,” his mother, Jocelyn S. Schaffer, says teachers told her.

Jocelyn S. Schaffer has taken the lead in a years-long battle with the Montgomery County, Md., district over the appropriate education for her son Brian.
—Sevans/Education Week

But by the 7th grade, school administrators told Schaffer and her husband, Martin P. Schaffer, that Brian would be better served in a special education program. He was struggling academically as classwork shifted toward more reading and writing.

The Schaffers turned to their local school district, from which their two older children would graduate. Montgomery County, Md., is a large, wealthy, and racially diverse school system of 139,000 children just outside the nation’s capital. It spends more than $310 million, or about 18 percent, of its $1.7 billion annual operating budget on special education services for about 17,500 students.

Both the Schaffers and the school system agreed that Brian would need extra help to succeed in school. Where they disagreed was in the details.

What resulted was a long and expensive legal battle, a not uncommon experience for families and educators in the world of special education. The question before the Supreme Court is which side should bear the burden of proof in legal disputes under the federal Individuals with Disabilities Education Act. The answer is likely to have consequences for similar disputes across the country, but it won’t mean the end of legal battles under the special education law, a landmark disability-rights measure that Congress first passed 30 years ago.


After evaluating Brian in 1998, the Montgomery County district diagnosed him with speech-language and learning disabilities. It said the district would be able to meet his needs at his home middle school through a program that would place him in larger classes, but with support from another teacher in the room who would work with him and a handful of other students with special needs. He would have received about 16 hours of special education a week under the district’s plan.

Brian’s learning disabilities were “nonsevere,” says Jerry D. Weast, the superintendent of the Montgomery County district. He took the helm of the system in 1999, more than a year after the Schaffers first went to the district. “We believe that we have some of the best professionals in this area that you could find in any school district in America, and we trust their judgment,” Weast says in an interview in his office in Rockville, the county seat.

The Schaffers, however, had outside experts evaluate their son. Those experts concluded that Brian’s disabilities included a “central auditory processing deficit” that made it nearly impossible for him to function well in classrooms of more than a dozen or so students. Jocelyn Schaffer visited one of the programs offered for Brian, and determined that the classes were too large for him to learn in.

A Special Education Lawsuit’s Road to The Supreme Court

Key dates in the Schaffer v. Weast case:

September 1997:

Brian Schaffer is enrolled in preschool at the private, 320-student Green Acres School in Rockville, Md.

October 1997:

Green Acres administrators tell the Schaffers that Brian, then in 7th grade, would be better served in a school that could adequately accommodate his disabilities. A month later, his parents request an individualized education program under the federal Individuals with Disabilities Education Act from the Montgomery County, Md., school district.

February 1998:

The Montgomery County district conducts an IEP meeting for Brian. The district’s experts conclude that Brian had a “non-severe” learning disability and could attend his neighborhood middle school with accommodations. His parents and their experts contend that Brian has severe disabilities and needs small classes to thrive. District officials offer a placement in another middle school with smaller classes than in his neighborhood school, but that school is also unacceptable to the Schaffers.

May 1998:

The Schaffers request a due-process hearing. The case is referred to an administrative-law judge, who weighs the conflicting evidence. He later rules for the district, saying that the party attacking the IEP should bear the burden of proving why it is inappropriate. The Schaffers challenge this decision in a lawsuit filed in U.S. District Court in Greenbelt, Md.

September 1998:

Brian enrolls at the private McLean School in Potomac, Md., for 8th grade. He stays through 10th grade.

March 2000:

A federal district judge reverses the decision of the administrative-law judge and says that the burden of proof should have been placed on the school district. On reconsideration, the administrative-law judge finds in favor of the parents, and awards them half of the private school tuition costs for the 1998-99 school year. Meanwhile, the school district appeals the district court decision to the U.S. Court of Appeals for the 4th Circuit, in Richmond, Va.

August 2000:

During his 9th grade year, the school district offers Brian a placement at a program at a public high school near his home. His parents agree that the program is acceptable. However, the Schaffers have already signed a contract with the McLean School. Brian spends 10th grade there before transferring to public school.

August 2001:

Brian enrolls in the Montgomery County district as a high school junior.

June 2003:

Brian graduates from Walter Johnson High School in Bethesda, Md. Later that year, he enrolls in college.

July 2004:

A panel of the 4th Circuit Court rules 2-1 for the school district. It holds that the Schaffers, as the initiating party of the challenge to an IEP, bear the burden of proof.

Oct. 5, 2005:

The U.S. Supreme Court is scheduled to hear oral arguments on which party bears the burden of proof when an IEP is challenged.

SOURCE: Education Week

“To put him in one of those programs would have been irreparably harmful to him,” she says.

The family fought the district’s decision on Brian’s education, and the case ended up before an administrative-law judge. In his 1998 ruling, the judge said that the information presented was so evenly matched that he could decide only by determining which party had to prove its case: the parents who were challenging an individualized education program, or the school system that developed the IEP. The parents bore the burden of proof, the judge held.

That decision was reversed in 2000 by a U.S. District Court judge in Greenbelt, Md. The Montgomery County district appealed to the U.S. Court of Appeals for the 4th Circuit, in Richmond, Va., which held that the burden of proof should be on the parents. The family sought the Supreme Court’s review, and the court will hear arguments on Schaffer v. Weast (Case No. 04-698) on Oct. 5.

The legal question that the high court will decide is the same one that the administrative-law judge wrestled with seven years ago. Federal courts throughout the country are splintered on the burden-of-proof issue. Some assign the burden to the school district in all such cases; some assign it to whichever party chooses to challenge an IEP—usually the parents.

In his 2004 opinion for the 4th Circuit’s 2-1 panel majority in favor of the school district, Judge M. Blane Michael said that “we do not automatically assign the burden of proof to the side with the bigger guns.”

He said that there was no reason to depart from the traditional burden of proof standard, which normally assigns the burden to the party making the challenge. Michael was joined in the opinion by Judge J. Harvie Wilkinson III.

Judge J. Michael Luttig, who has been mentioned often as a potential Supreme Court nominee, dissented. Luttig said that basic fairness should require school districts to prove their educational plans were appropriate for the student. “Parents simply do not have, and cannot easily acquire, the cumulative, institutional knowledge gained by representatives of the school district from their experiences with other, similarly disabled children,” Luttig wrote.

The federal government has argued both sides of the Schaffer v. Weast case. In 2000, while the case was pending in the 4th Circuit court, the U.S. Department of Justice under President Clinton filed a brief arguing that school districts bear the burden of proving that the programs they devise are the best ones for particular students.

But this past June, the Bush administration took a different view of the case. U.S. Solicitor General Paul D. Clement said that after “a careful review” of administrative law and of the changes to the IDEA approved by Congress late last year, the government now believed that the burden of proof should fall on the party seeking relief. The Bush administration will participate in the Supreme Court oral arguments next week on the Montgomery County district’s side.


Both sides in the case say they are waging a larger battle. The Schaffers say theirs is on behalf of parents who feel powerless against school systems in due-process hearings under the IDEA. The Montgomery County school district, meanwhile, argues that teachers are buried under a mountain of special education paperwork that would be made even worse if the burden of proof in IEP disputes were always borne by the schools.

“The case is not really just about us,” Jocelyn Schaffer says during an interview in her lawyer’s office in Chevy Chase, Md. Schaffer, who has a law degree from American University in Washington, currently works as assistant to the head administrator of Green Acres School, the private school Brian attended in his younger years. Protective of her son’s privacy, she has taken the lead during the years of legal battles, joking that “someone has to cook dinner” while she writes memos in the case. Her husband practices corporate law.

The case, she says, “is really about families trying to make sure that their child’s education is appropriate to their needs. It’s about the frustration that parents have felt with their inability to effectively challenge an IEP.”

Weast, who has spent 30 years as a superintendent in this and other school districts, also says the case goes beyond the Maryland district.

“I came in when special education was first enacted,” he says, referring to the passage of the first federal law in that area 30 years ago. The school district cares about providing a good education for students in special education, Weast says, and he is personally is committed to that goal.

But “what concerns me is the number of teachers over those 30 years who have quit being special educators because of the onerous burden they feel with regard to paperwork and all of those issues that come with this legality,” Weast says.


Supporters of the school district’s position, which include the Council of the Great City Schools, the National Education Association, and the National School Boards Association, say that if the high court decides against it, that would be tantamount to presuming individual teachers wrong before a special education dispute is even heard.

Superintendent Jerry D. Weast says a ruling against the school district could prompt more special education lawsuits.
—Sevans/Education Week

Teachers, not school districts, would be the real losers, they say.

That standard of burden of proof “is different from the way we treat almost any other judgment at the state level,” says Gregory G. Garre, a lawyer representing the Montgomery County system.

Due-process hearings generally involve one to two weeks of proceedings, taking teachers and administrators away from their schools and classrooms, so even if they are resolved quickly, teachers still lose time with students, the education groups say.

The Montgomery County district also argues that if districts always bore the burden of proof, that would encourage parents to engage in gamesmanship, by challenging an IEP just to get tuition payments for private schools. The district suggests that’s what happened here, and that the Schaffers never really intended to place their son in public school. The Montgomery County district spends about $32 million annually on private school tuition payments for 650 children in special education, Weast says.

“According to the administrative-law judge, there was not a commitment to put the child in a public education institution,” the superintendent says. “He said it was ‘mock effort.’ ”

Jocelyn Schaffer strongly disputes that contention. The parents never sought tuition from the Montgomery County district for their son’s private elementary school, she says. Though Brian ended up attending private school for 8th, 9th, and 10th grades, in the middle of the legal wrangling he was offered placement at Walter P. Johnson High School in Bethesda, Md., a Montgomery County public school. The high school offered smaller classes and a program that was adequate for his needs, his parents say. He graduated from the public school in 2003.

“When they finally offered us something appropriate, we took it,” Schaffer says of Montgomery County school officials. “They want people to see us differently from how we really are.”


Supporters of the Schaffers, which include several disability-rights organizations and the presidentially appointed National Council on Disability, an advisory group, argue that it’s fundamentally fair that school districts should have to prove their programs are appropriate to each child. Under the IDEA, schools must provide a “free, appropriate public education” to students with disabilities.

In the unique circumstances of an administrative hearing, they argue, school districts are in a better position to bear the burden of proof than parents. They have more information and often have more access to experts, the Schaffers’ supporters say.

Perry A. Zirkel, a professor of education and law at Lehigh University in Bethlehem, Pa., and an expert on special education law, believes that burden-of-proof determinations would only play a role in a small number of special education cases. In most situations, the evidence is so overwhelming on one side that issues of burden of proof have no import, he says.

“It’s like in baseball, where they say the tie goes to the runner,” Zirkel says. “Well, if you’re out by four feet, it doesn’t matter. To me, in some ways, it’s much ado about very little.”

Garre, the lawyer representing the Montgomery County district, agrees that the Supreme Court decision may ultimately affect few cases. Where the decision will make a difference, he contends, is in how many IEPs are challenged in the first place.

“We think that flipping the burden is going to create an incentive for more litigation,” he says.

The Supreme Court’s disposition of Schaffer v. Weast will not affect Brian, who is doing well in college, his mother says.

“I don’t think he realizes these other parents are seeing him as the champion of their cause,” Jocelyn Schaffer says.

Meanwhile, Superintendent Weast is aware that thousands of school districts around the country are also watching the case carefully. To him, the case reflects unfairly on the professionalism of his staff.

“That’s one of the big reasons I have carried this forward,” he says.

Vol. 25, Issue 05, Pages 27-29

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