The Bush administration has reversed an earlier stance taken by the federal government on a legal appeal dealing with the burden of proof in special education cases, choosing to support the position taken by a Maryland school district in a case pending before the U.S. Supreme Court.
In a case that could shape the outcome of special education disputes across the country, the Supreme Court will decide in Schaffer v. Weast (Case No. 04-698) which side bears the burden of proof in disputes over children’s individualized education programs, or IEPs. The question is whether parents need to prove that IEPs are inadequate, or whether school systems must show that the programs sufficiently meet students’ needs.
In 2000, while the case was pending in a federal appeals court in Richmond, Va., the Department of Justice under President Clinton filed a brief arguing that districts bear the burden of proving that the programs they develop are the best ones for particular students.
But in a friend-of-the-court brief filed with the high court June 24, U.S. Solicitor General Paul D. Clement said that after “a careful review” of administrative law and of the changes to the Individuals with Disabilities Education Act approved by Congress late last year, the government was “now of the view” that the burden of proof should fall on the party seeking relief in an IDEA administrative hearing.
The administration’s brief acknowledges that the federal special education statute does not specifically address the burden-of-proof issue, which has led to differing interpretations by lower federal courts nationwide. However, the brief says, “several aspects of the statute support placing the burden of proof where it presumptively lies—on the party initiating and seeking relief at the administrative hearing.”
Kent D. Talbert, the Department of Education’s acting general counsel, also signed the administration’s brief.
The case is expected to be argued early in the Supreme Court’s next term, which begins Oct. 3.
Parents Feel Daunted
The case revolves around a former Montgomery County, Md., student, Brian Schaffer, whom doctors diagnosed with attention deficit hyperactivity disorder and learning disabilities. His parents, Jocelyn and Martin Schaffer, sought to have the 139,000-student Montgomery County district reimburse them for their son’s private school tuition because they were dissatisfied with the IEP offered by the district. Brian, a 7th grader at the time the dispute arose, graduated from high school in 2003.
The Bush administration’s position gives a boost to the school district, said Brian J. Porter, the district’s chief of staff. The district provides special education services to about 12 percent of its students.
“Teachers should be able to do their jobs free of the suggestion that their decisions are presumed to be wrong whenever a parent brings a complaint,” Mr. Porter said.
The Schaffers have argued in court papers that parents find the process of appealing IEP decisions daunting and have limited resources at their disposal compared with school districts.
“Placing the burden on the parents significantly strengthens the hand of often-intransigent school district bureaucracies,” the parents’ Supreme Court brief says. Several friend-of-the-court briefs filed by advocates for people with disabilities in support of the parents suggest the same problem.
But the Bush administration’s brief in support of the district says that the procedural safeguards contained within the IDEA protect parents.
Michael J. Eig, a lawyer for the Schaffers, said the federal government’s turnaround in the case was surprising. In 2000, he said, the government made a “very careful policy analysis” of the issue and concluded that the burden of proof was on the side of the parents.
In its 2000 brief when the case was on appeal to the U.S. Court of Appeals for the 4th Circuit, in Richmond, the Clinton administration argued that schools had the burden of showing the adequacy of their proposed IEPs at administrative hearings.
“This result is consistent with the IDEA’s requirement that the public agency bear the responsibility for ensuring that [a free appropriate public education] is available to a child with a disability,” the 2000 brief said.
“Nothing has changed in five years,” Mr. Eig said. “Basically, they put a footnote in there saying they changed their minds.”