v. Weast: How
Will the Decision
Peter W. D. Wright, Esq.
v. Weast, Justice Sandra Day OConnor explained that
the Court granted certiorari
to resolve the following
an administrative hearing assessing the appropriateness of an
IEP, which party bears the burden of persuasion?
the first paragraph, Justice O'Connor wrote:
parents believe their child's IEP is inappropriate, they may
request an "impartial due process hearing." §1415(f).
The Act is silent, however, as to which party bears the burden
of persuasion at such a hearing. We hold that the burden lies,
as it typically does, on the party seeking relief.
last two paragraphs clarify the limited nature of this decision:
Finally, respondents and several States urge us to decide that
States may, if they wish, override the default rule and put the
burden always on the school district. Several States have laws
or regulations purporting to do so, at least under some circumstances
(AK, AL, CT, DC, DE, GA, IL, KY, MN, WV) Because no such
law or regulation exists in Maryland, we need not decide this
issue today. Justice Breyer contends that the allocation of the
burden ought to be left entirely up to the States. But neither
party made this argument before this Court or the courts below.
We therefore decline to address it.
We hold no more than we must to resolve the case at hand: 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. The judgment of the United States Court of Appeals
for the Fourth Circuit is, therefore, affirmed. (Decision, pages
OConnor described the parental rights and safeguards that
serve to counterbalance the natural advantage of school
districts have a natural advantage in information
and expertise, but Congress addressed this when it obliged schools
to safeguard the procedural rights of parents and to share information
As noted above, parents have the right to review
all records that the school possesses in relation to their child
They also have the right to an independent educational
evaluation of the[ir] child. Ibid. The regulations
clarify this entitlement by providing that a parent has
the right to an independent educational evaluation at public expense
if the parent disagrees with an evaluation obtained by the public
IDEA thus ensures parents access to an expert
who can evaluate all the materials that the school must make available,
and who can give an independent opinion. They are not left to
challenge the government without a realistic opportunity to access
the necessary evidence, or without an expert with the firepower
to match the opposition. (Decision pages 10-11)
The decision in Schaffer
v. Weast focused on revisions in IDEA 2004 and Prior
Written Notice (PWN). These revisions require that school
districts to provide Prior Written Notice (PWN) when
the school district refuses to initiate or change, the identification,
evaluation, or educational placement of the child, or the provision
of a free appropriate public education to the child. See
20 USC §1415(b)(3) (Wrightslaw:
IDEA 2004, page 99)
Written Notice shall include
(A) a description of the action proposed or refused by the agency;
(B) an explanation of why the agency proposes or refuses to take
the action and a description of each evaluation procedure, assessment,
record, or report the agency used as a basis for the proposed
or refused action; (C) a statement that the parents of a child
with a disability have protection under the procedural safeguards
of this part and, if this notice is not an initial referral for
evaluation, the means by which a copy of a description of the
procedural safeguards can be obtained;
(E) a description
of other options considered by the IEP Team and the reason why
those options were rejected; and (F) a description of the factors
that are relevant to the agencys proposal or refusal.
See 20 USC §1415(c)(1) (Wrightslaw:
IDEA 2004, page 100)
PWN requirement was a significant factor in the Courts ruling
in favor of the school district in Schaffer
in 2004, Congress added provisions requiring school districts
to answer the subject matter of a complaint in writing, and to
provide parents with the reasoning behind the disputed action,
details about the other options considered and rejected by the
IEP team, and a description of all evaluations, reports, and other
factors that the school used in coming to its decision
Prior to a hearing, the parties must disclose evaluations and
recommendations that they intend to rely upon
are deliberately informal and intended to give ALJs the flexibility
that they need to ensure that each side can fairly present its
evidence. IDEA, in fact, requires state authorities to organize
hearings in a way that guarantees parents and children the procedural
protections of the Act
Finally, and perhaps most importantly,
parents may recover attorneys fees if they prevail
These protections ensure that the school bears no unique informational
Justices dissented from the majority opinion. As Justice OConnor
explained in the decision, the case does not adversely affect
states that already place the burden of proof on one party or
Breyer dissented because he believed that the case should be remanded
back to Maryland to determine the issue, not the U. S. Supreme
has no special state law or regulation setting forth a special
IEP-related burden of persuasion standard. But it does have rules
of state administrative procedure and a body of state administrative
law. The state ALJ should determine how those rules, or other
state law applies to this case
Because the state ALJ did
not do this (i.e., he looked for a federal, not a state, burden
of persuasion rule), I would remand this case. (Breyer dissent,
Ginsburg dissented because she was persuaded that policy
considerations, convenience, and fairness call for assigning
the burden of proof to the school district in this case.
(Ginsburg dissent, page 2) Citing the infamous Deal
v. Hamilton County Bd of Ed case, in which the school
district spent over 2 million dollars on attorneys fees
in an effort to avoid providing services to a child with autism,
Ginsburg expressed concerns about the faulty reliance on the Stay
Put provision in the statute. 20 USC §1415(j) (Wrightslaw:
IDEA 2004, page 110) She explained:
Court suggests that the IDEAs stay-put provision, 20 U.
S. C. §1415(j), supports placement of the burden of persuasion
on the parents. The stay-put provision, however, merely preserves
the status quo. It would work to the advantage of the child and
the parents when the school seeks to cut services offered under
a previously established IEP. True, Congress did not require that
a child be given the educational placement that a parent
requested during a dispute. But neither did Congress require
that the IEP advanced by the school district go into effect during
the pendency of a dispute. (Ginsburg dissent, page 3, footnote
Ginsberg explained that if a school district does not have the
burden of proof, the district is unlikely to try to reach consensus
with a parent about an IEP:
case is illustrative. Not until the District Court ruled that
the school district had the burden of persuasion did the school
design an IEP that met Brian Schaffers special educational
needs. See ante, at 5; Tr. of Oral Arg. 21-22 (Counsel for the
Schaffers observed that Montgomery County ... gave [Brian]
the kind of services he had sought from the beginning ... once
[the school district was] given the burden of proof.). Had
the school district, in the first instance, offered Brian a public
or private school placement equivalent to the one the district
ultimately provided, this entire litigation and its attendant
costs could have been avoided. (Ginsburg dissent, page 4)
Does the Decision Mean to You?
It depends. The implications of this decision will vary around
the country. In many jurisdictions, states are already operating
under the rule that the moving party has the burden of proof.
In these states, the decision should have no significant impact.
decision will change the usual due process special education procedures
in about half of the states. If the state did not have a preexisting
state rule or regulation that assigned the burden of proof to
the school district, the burden will be on the moving party.
Maryland did not have a regulation or statute that assigned the
burden of proof to one side or the other, the Court ruled that:
The burden of proof in an administrative hearing challenging
an IEP is properly placed upon the party seeking relief.
(Decision, page 12)
states, by state statute or state regulation, already assign the
burden to the school district. These states include Alabama, Alaska,
Connecticut, Washington, D.C., Delaware, Georgia, Illinois, Kentucky,
Minnesota, and West Virginia. These states are not covered by
the state legislature and/or Board of Education decide to change
the state law or regulation, residents in these states should
not expect to see a change in due process procedures. (See Ala.
Admin. Code Rule 290-8-9-.08(8)(c)(6), Alaska Admin. Code tit.
4, §52.550(e)(9), Conn. Agencies Regs. §10-76h-14, Del.
Code Ann., Tit. 14, §3140, District of Columbia Mun. Regs.
Title 5, § 3030.3, Georgia Administrative Code, Rule 160-4-7.18(1)(g)(8),
Illinois statute, Chapter 105, Act 5, Article 14, Section 8.02,
Ky. Rev. Stat. Ann. §13B.090(7), Minn. Stat. §125A.091,
subd. 16 (2004), and W.Va. Code Rules §126-16-8.1.11(c))
Circuit Courts of Appeal have already assigned the burden of proof
to the moving party that seeks to change the childs status
or services (the Fourth, Fifth, Sixth, Seventh and Eleventh Circuits).
States under the jurisdiction of these circuits that do not have
a state statute or regulation that addresses burden of proof include:
Colorado, Kansas, Louisiana, Maryland, Michigan, Mississippi,
Oklahoma, New Mexico, North Carolina, Ohio, South Carolina, Tennessee,
Texas, Utah, Virginia, and Wyoming.
of these states should not expect to see a change in their due
process procedures since the moving party already has the burden.
that place the burden of proof on the school district, or have
not addressed this issue, will be affected by the decision in
v. Weast (the First, Second, Third, Seventh, Eighth, and
Ninth Circuits). States under the jurisdiction of these circuits
that do not have a state statute or regulation that assigns the
burden of proof to the school district include: Arizona, Arkansas,
California, Florida, Hawaii, Idaho, Illinois, Iowa, Maine, Massachusetts,
Missouri, Montana, Nebraska, Nevada, New Hampshire, New York,
North Dakota, Oregon, Pennsylvania, Puerto Rico, Rhode Island,
South Dakota, Vermont, Washington, and Wisconsin,
New Jersey Supreme Court previously ruled that the burden of proof
is on the school district in Lascari. We are unsure as
to the legal status in New Jersey.
attempted to determine which states that have a state statute
or regulation that places the burden of proof on the school district
(see Table below). If you know about other states, please send
us the specific legal citation so that we can corroborate the
information and correct the table below.
Burden of Proof in States
change. Burden continues to be
on school district.
change. Burden continues to be on moving party.
Burden is on moving party.
it or Leave It!
When School Districts Draw Lines in the Sand
Many school districts, regardless of whether the moving party
(usually the parent) had the burden of proof prior to Schaffer,
would present parents with a unilateral change in the child's
IEP (often a reduction of services). If the parents did not consent
to the change, the school would respond: "Take it or leave
it. Take us to due process."
parents were in dilemma. They could request a special education
due process hearing or they could accept the changed IEP. When
the parents did request a due process hearing, Hearing Officers
and Administrative Law Judges frequently assumed that the parents
were the moving party since they were objecting to a proposed
IEP. Thus, the parents had the burden of proving that the new
proposed IEP was not appropriate.
decision in Schaffer
this same scenario, if the parents do not consent to the changed
IEP, it is clear that the school district must seek a special
education due process hearing. Justice O'Connor wrote:
districts may also seek such hearings, as Congress clarified in
the 2004 amendments. See S. Rep. No. 108-185, p. 37 (2003). They
may do so, for example, if they wish to change an existing IEP
but the parents do not consent, or if parents refuse to allow
their child to be evaluated. As a practical matter, it appears
that most hearing requests come from parents rather than schools.
(Decision, page 3-4)
the school district seeks to change an IEP and parents do not
consent, the school district may not unilaterally change the IEP.
The school district must now request a due process hearing, present
their evidence first, and prove that their proposed IEP provides
the child with a free appropriate education.
2004 amendments to IDEA require that school districts provide
parents with "Prior Written Notice" as a condition of
being able to proceed to a due process hearing.
that a school district changes a child's IEP without obtaining
the parent's consent, without a due process hearing, and without
an Order from a Hearing Officer or Administrative Law Judge. Subsequently,
the parent removes the child from the public school program and
places the child into a private program. The school district may
find themselves without a defense to the parent's request for
tuition reimbursement. (Note: The parent must comply with the
required 10 business day rule in 20 U.S.C. §1412(a)(10)(C)
IDEA 2004, page 65.)
Process Complaint Notice
Prior Written Notice is rigidly adhered to in some school districts
and completely disregarded in others. According to the reauthorized
IDEA 2004, the parent's Due Process Complaint Notice must provide
"a description of the nature of the problem of the child
relating to such proposed initiation or change, including facts
relating to such problem; and a proposed resolution of the problem
to the extent known and available to the party at the time."
20 U.S.C. §1415(b)(7) (Wrightslaw:
IDEA 2004, page 99)
the parents provide the due process complaint notice:
the local educational agency has not sent a prior written notice
to the parent regarding the subject matter contained in the parent's
due process complaint notice, such local educational agency shall,
within 10 days of receiving the complaint, send to the parent
a response that shall include - (aa) an explanation of why the
agency proposed or refused to take the action raised in the complaint;
(bb) a description of other options that the IEP Team considered
and the reasons why those options were rejected; (cc) a description
of each evaluation procedure, assessment, record, or report the
agency used as the basis for the proposed or refused action; and
(dd) a description of the factors that are relevant to the agency's
proposal or refusal. 20 USC §1415(c)(2) (Wrightslaw:
IDEA 2004, page 100)
a disagreement with parents, school districts often draw lines in
the sand. They may refuse to provide services or they may reduce
services, without any evaluation or new data that justifies the
proposed change in services. In this situation, the school district
is required to provide Prior Written Notice. Many districts fail
to do this. After the parent requests a due process hearing, the
school district then generates evidence, evaluations, and witnesses
to support their earlier decision.
conflicts with Prior Written Notice as described by Justice O'Connor
and IDEA 2004. PWN, as a pretrial requirement, will receive greater
scrutiny in light of the Court's emphasis in Schaffer
added provisions requiring school districts to answer the subject
matter of a complaint in writing, and to provide parents with
the reasoning behind the disputed action, details about the other
options considered and rejected by the IEP team, and a description
of all evaluations, reports, and other factors that the school
used in coming to its decision.
Rights and Protections as "Firepower to Match the Opposition"
the Court reviewed and clarified the rights and protections afforded
to parents so that the "parents [have] access to an expert
who can evaluate all the materials that the school must make available"
so they have "the firepower to match the opposition":
obliged schools to safeguard the procedural rights of parents
and to share information with them
parents have the right
to review all records that the school possesses in relation to
their child. §1415(b)(1). They also have the right to an
"independent educational evaluation of the[ir] child."
Ibid. The regulations clarify this entitlement by providing that
a 'parent has the right to an independent educational evaluation
at public expense if the parent disagrees with an evaluation obtained
by the public agency.' 34 CFR §300.502(b)(1) (2005). (Decision,
Tactics May Backfire
an attempt to delay or sabotage the process, some districts refuse
to release records. Some districts advise parents that they must
use an evaluator from the school's "approved list of evaluators."
In some jurisdictions, principals refuse to permit the parent's
evaluator or expert to observe the child's public school program.
light of the decision in Schaffer,
these tactics can be expected to backfire. If litigation does
ensue, these tactics may be a sufficient procedural breach to
justify a ruling in favor of the parent and child.
a personal perspective, Pam and I live in the land of the Fourth
Circuit where we have always had the burden of proof. I always
go first. This gives me control over the order of witnesses, and
allows me to lay out the case and theme of the case in the manner
always have all witnesses excluded, except school district's party
representative. The witnesses are instructed by Hearing Officer
/ Administrative Law Judge (HO / ALJ) that they may not discuss
testimony with other witnesses.
occasion, if that sole remaining school district employee is a
key witness, I have called that person as my first or second witness,
as an adverse witness.
have always gone first in Virginia, Ohio, North Carolina, and
South Carolina. I prefer to go first. I had a case in Pennsylvania
where the school district had the burden of proof and was expected
to go first. Opposing counsel and I agreed that I would go first,
even though the school district had the burden of proof. The Hearing
Officer refused to go along with our agreement and forced the
school district to go first.
was the result?
The due process hearing, a tuition reimbursement "Carter"
case, could have been completed in two or three days. Instead,
the case continued for months, with nearly two weeks of testimony.
The school district attorney had to anticipate my case, the testimony
of my witnesses, and had to cover every possible issue from A
to Z in direct examination of school witnesses. The case that
should have been clear, simple and quick became long, drawn out
and slow. In the process, the issues in the case became more convoluted.
general, what controls outcome is not the facts nor the law. It
comes down to one thing: Does the Hearing Office / Administrative
Law Judge want to rule in your favor?
you can win that battle - and make the decision-maker feel the
case in his/her heart and gut and want to rule in your
favor - that person will find facts and law to rule in your favor
and justify the outcome.
and law get you into the courthouse and onto the playing field,
but they do not get you into the end zone. It is the human emotions
of the HO / ALJ and your ability to influence their beliefs and
emotions will take you into the end zone, without regard to which
side has the burden of proof.
the opposition has a heavy burden, such as having to prove a case
beyond a reasonable doubt, I always prefer to go first. But then,
I was raised in the land of the Fourth Circuit and we have never
known it any other way. It really isn't so bad!
from Pete Wright: This article may be photocopied and
article is also available in pdf format at: http://www.wrightslaw.com/law/art/schaffer.impact.pwright.pdf
7, 2005 Note from Pete Wright: We were misinformed
about Indiana and have since moved it to the no change status
in the above table.
Listen to the Oral Argument in Schaffer
v. Weast (MP3 download)