In Schaffer v. Weast, Justice Sandra Day OConnor explained that the Court granted certiorari to resolve the following question:
In the first paragraph, Justice O'Connor wrote:
The last two paragraphs clarify the limited nature of this decision:
Justice OConnor described the parental rights and safeguards that serve to counterbalance the natural advantage of school districts:
The PWN requirement was a significant factor in the Courts ruling in favor of the school district in Schaffer v. Weast:
Two 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 the other.
Justice Breyer dissented because he believed that the case should be remanded back to Maryland to determine the issue, not the U. S. Supreme Court:
Justice 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, she noted:
Justice 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:
Justice 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:
Does the Decision Mean to You?
The 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.
Because 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)
Some 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 this ruling.
Unless 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))
Several 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.
Residents of these states should not expect to see a change in their due process procedures since the moving party already has the burden.
Circuits that place the burden of proof on the school district, or have not addressed this issue, will be affected by the decision in Schaffer 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,
The 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.
Table. Burden of Proof in States
it or Leave It!
The 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.
The decision in Schaffer changed this.
Given 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:
When 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.
The 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.
Assume 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) (Wrightslaw: IDEA 2004, page 65.)
Process Complaint Notice
When the parents provide the due process complaint notice:
In 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.
This 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 that:
Rights and Protections as "Firepower to Match the Opposition"
Old Tactics May Backfire
In 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.
From 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 I prefer.
I 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.
On 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.
I 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?
In 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?
If 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.
Facts 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.
Unless 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
December 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)
Copyright © 1998-2017, Peter W. D. Wright and Pamela Darr
Wright. All rights reserved.
Copyright © 1998-2017, Peter W. D. Wright and Pamela Darr Wright. All rights reserved.