SCHAFFER, A MINOR, BY HIS PARENTS AND NEXT FRIENDS, JOCELYN AND MARTIN
SCHAFFER, ET AL., PETITIONERS
JERRY WEAST, SUPERINTENDENT, MONTGOMERY COUNTY PUBLIC SCHOOLS, ET
October 5, 2005
November 14, 2005
J., delivered the opinion of the Court, in which Stevens, Scalia,
Kennedy, Souter, and Thomas, JJ., joined. Stevens, J., filed a concurring
opinion. Ginsburg, J., and Breyer, J., filed dissenting opinions.
Roberts, C. J., took no part in the consideration or decision of the
Of Certiorari to The United States Court Of Appeals for The Fourth
Circuit Court Below: 377 F. 3d 449
of the court was delivered by: Justice O'Connor.
with Disabilities Education Act (IDEA or Act), 84 Stat. 175, as amended,
20 U. S. C. A. §1400 et seq. (main ed. and Supp. 2005),
is a Spending Clause statute that seeks to ensure that "all children
with disabilities have available to them a free appropriate public
education," §1400(d)(1)(A). Under IDEA, school districts
must create an "individualized education program" (IEP)
for each disabled child. §1414(d). If 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.
first passed IDEA as part of the Education of the Handicapped Act
in 1970, 84 Stat. 175, and amended it substantially in the Education
for All Handicapped Children Act of 1975, 89 Stat. 773. At the time
the majority of disabled children in America were "either totally
excluded from schools or sitting idly in regular classrooms awaiting
the time when they were old enough to `drop out,' " H. R. Rep.
No. 94-332, p. 2 (1975). IDEA was intended to reverse this history
of neglect. As of 2003, the Act governed the provision of special
education services to nearly 7 million children across the country.
See Dept. of Education, Office of Special Education Programs, Data
Analysis System, http://www.ideadata.org/tables27th/ar_
aa9.htm (as visited Nov. 9, 2005, and available in Clerk of Court's
is "frequently described as a model of `cooperative federalism.'
" Little Rock School Dist. v. Mauney, 183 F. 3d 816, 830
(CA8 1999). It "leaves to the States the primary responsibility
for developing and executing educational programs for handicapped
children, [but] imposes significant requirements to be followed in
the discharge of that responsibility." Board
of Ed. of Hendrick Hudson Central School Dist., Westchester Cty. v.
Rowley, 458 U. S. 176, 183 (1982). For example, the Act mandates
cooperation and reporting between state and federal educational authorities.
Participating States must certify to the Secretary of Education that
they have "policies and procedures" that will effectively
meet the Act's conditions. 20 U. S. C. §1412(a). (Unless otherwise
noted, all citations to the Act are to the pre-2004 version of the
statute because this is the version that was in effect during the
proceedings below. We note, however, that nothing in the recent 2004
amendments, 118 Stat. 2674, appears to materially affect the rule
announced here.) State educational agencies, in turn, must ensure
that local schools and teachers are meeting the State's educational
standards. 20 U. S. C. §§1412(a)(11), 1412(a)(15)(A). Local
educational agencies (school boards or other administrative bodies)
can receive IDEA funds only if they certify to a state educational
agency that they are acting in accordance with the State's policies
and procedures. §1413(a)(1).
of the statute, however, is the cooperative process that it establishes
between parents and schools. Rowley,
supra, at 205-206 ("Congress placed every bit as much emphasis
upon compliance with procedures giving parents and guardians a large
measure of participation at every stage of the administrative process,
. . . as it did upon the measurement of the resulting IEP against
a substantive standard"). The central vehicle for this collaboration
is the IEP process. State educational authorities must identify and
evaluate disabled children, §§1414(a)-(c), develop an IEP
for each one, §1414(d)(2), and review every IEP at least once
a year, §1414(d)(4). Each IEP must include an assessment of the
child's current educational performance, must articulate measurable
educational goals, and must specify the nature of the special services
that the school will provide. §1414(d)(1)(A).
and guardians play a significant role in the IEP process. They must
be informed about and consent to evaluations of their child under
the Act. §1414(c)(3). Parents are included as members of "IEP
teams." §1414(d)(1)(B). They have the right to examine any
records relating to their child, and to obtain an "independent
educational evaluation of the[ir] child." §1415(b)(1). They
must be given written prior notice of any changes in an IEP, §1415(b)(3),
and be notified in writing of the procedural safeguards available
to them under the Act, §1415(d)(1). If parents believe that an
IEP is not appropriate, they may seek an administrative "impartial
due process hearing." §1415(f). School 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. Brief for Petitioners 7.
state authorities have limited discretion to determine who conducts
the hearings, §1415(f)(1)), and responsibility generally for
establishing fair hearing procedures, §1415(a), Congress has
chosen to legislate the central components of due process hearings.
It has imposed minimal pleading standards, requiring parties to file
complaints setting forth "a description of the nature of the
problem," §1415(b)(7)(B)(ii), and "a proposed resolution
of the problem to the extent known and available . . . at the time,"
§1415(b)(7)(B)(iii). At the hearing, all parties may be accompanied
by counsel, and may "present evidence and confront, cross-examine,
and compel the attendance of witnesses." §§1415(h)(1)-(2).
After the hearing, any aggrieved party may bring a civil action in
state or federal court. §1415(i)(2). Prevailing parents may also
recover attorney's fees. §1415(i)(3)(B). Congress has never explicitly
stated, however, which party should bear the burden of proof at IDEA
case concerns the educational services that were due, under IDEA,
to petitioner Brian Schaffer. Brian suffers from learning disabilities
and speech-language impairments. From prekindergarten through seventh
grade he attended a private school and struggled academically. In
1997, school officials informed Brian's mother that he needed a school
that could better accommodate his needs. Brian's parents contacted
respondent Montgomery County Public Schools System (MCPS) seeking
a placement for him for the following school year.
evaluated Brian and convened an IEP team. The committee generated
an initial IEP offering Brian a place in either of two MCPS middle
schools. Brian's parents were not satisfied with the arrangement,
believing that Brian needed smaller classes and more intensive services.
The Schaffers thus enrolled Brian in another private school, and initiated
a due process hearing challenging the IEP and seeking compensation
for the cost of Brian's subsequent private education.
IEP hearings are conducted by administrative law judges (ALJs). See
Md. Educ. Code Ann. §8-413(c) (Lexis 2004). After a 3-day hearing,
the ALJ deemed the evidence close, held that the parents bore the
burden of persuasion, and ruled in favor of the school district. The
parents brought a civil action challenging the result. The United
States District Court for the District of Maryland reversed and remanded,
after concluding that the burden of persuasion is on the school district.
Brian S. v. Vance, 86 F. Supp. 2d 538 (2000). Around the same time,
MCPS offered Brian a placement in a high school with a special learning
center. Brian's parents accepted, and Brian was educated in that program
until he graduated from high school. The suit remained alive, however,
because the parents sought compensation for the private school tuition
and related expenses.
appealed to the United States Court of Appeals for the Fourth Circuit.
While the appeal was pending, the ALJ reconsidered the case, deemed
the evidence truly in "equipoise," and ruled in favor of
the parents. The Fourth Circuit vacated and remanded the appeal so
that it could consider the burden of proof issue along with the merits
on a later appeal. The District Court reaffirmed its ruling that the
school district has the burden of proof. 240
F. Supp. 2d 396 (Md. 2002). On appeal, a divided panel of the
Fourth Circuit reversed. Judge Michael, writing for the majority,
concluded that petitioners offered no persuasive reason to "depart
from the normal rule of allocating the burden to the party seeking
F. 3d 449, 453 (2004). We granted certiorari, 543 U. S. 1145 (2005),
to resolve the following question: At an administrative hearing assessing
the appropriateness of an IEP, which party bears the burden of persuasion?
"burden of proof" is one of the "slipperiest member[s]
of the family of legal terms." 2 J. Strong, McCormick on Evidence
§342, p. 433 (5th ed. 1999) (hereinafter McCormick). Part
of the confusion surrounding the term arises from the fact that historically,
the concept encompassed two distinct burdens: the "burden of
persuasion," i.e., which party loses if the evidence is closely
balanced, and the "burden of production," i.e., which party
bears the obligation to come forward with the evidence at different
points in the proceeding. Director, Office of Workers' Compensation
Programs v. Greenwich Collieries, 512 U. S. 267, 272 (1994). We
note at the outset that this case concerns only the burden of persuasion,
as the parties agree, Brief
for Respondents 14; Reply
Brief for Petitioners 15, and when we speak of burden of proof
in this opinion, it is this to which we refer.
we are determining the burden of proof under a statutory cause of
action, the touchstone of our inquiry is, of course, the statute.
The plain text of IDEA is silent on the allocation of the burden of
persuasion. We therefore begin with the ordinary default rule that
plaintiffs bear the risk of failing to prove their claims. McCormick
§337, at 412 ("The burdens of pleading and proof with
regard to most facts have and should be assigned to the plaintiff
who generally seeks to change the present state of affairs and who
therefore naturally should be expected to bear the risk of failure
or proof or persuasion"); C. Mueller & L. Kirkpatrick, Evidence
§3.1, p. 104 (3d ed. 2003) ("Perhaps the broadest and
most accepted idea is that the person who seeks court action should
justify the request, which means that the plaintiffs bear the burdens
on the elements in their claims").
we have usually assumed without comment that plaintiffs bear the burden
of persuasion regarding the essential aspects of their claims. For
example, Title VII of the Civil Rights Act of 1964, 42 U. S. C. §2000e-2
et seq., does not directly state that plaintiffs bear the "ultimate"
burden of persuasion, but we have so concluded. St. Mary's Honor
Center v. Hicks, 509 U. S. 502, 511 (1993); id., at 531
(Souter, J., dissenting). In numerous other areas, we have presumed
or held that the default rule applies. See, e. g., Lujan v. Defenders
of Wildlife, 504 U. S. 555, 561 (1992) (standing); Cleveland
v. Policy Management Systems Corp., 526 U. S. 795, 806 (1999)
(Americans with Disabilities Act); Hunt v. Cromartie, 526 U.
S. 541, 553 (1999) (equal protection); Wharf (Holdings) Ltd. v.
United Int'l Holdings, Inc., 532 U. S. 588, 593 (2001) (securities
fraud); Doran v. Salem Inn, Inc., 422 U. S. 922, 931 (1975)
(preliminary injunctions); Mt. Healthy City Bd. of Ed. v. Doyle,
429 U. S. 274, 287 (1977) (First Amendment). Congress also expressed
its approval of the general rule when it chose to apply it to administrative
proceedings under the Administrative Procedure Act, 5 U. S. C. §556(d);
see also Greenwich Collieries, supra, at 271.
default rule, of course, admits of exceptions. See McCormick §337,
at 412-415. For example, the burden of persuasion as to certain elements
of a plantiff's claim may be shifted to defendants, when such elements
can fairly be characterized as affirmative defenses or exemptions.
See, e.g., FTC v. Morton Salt Co., 334 U. S. 37, 44-45 (1948).
Under some circumstances this Court has even placed the burden of
persuasion over an entire claim on the defendant. See Alaska Dept.
of Environmental Conservation v. EPA, 540 U. S. 461, 494 (2004).
But while the normal default rule does not solve all cases, it certainly
solves most of them. Decisions that place the entire burden of persuasion
on the opposing party at the outset of a proceeding -- as petitioners
urge us to do here -- are extremely rare. Absent some reason to believe
that Congress intended otherwise, therefore, we will conclude that
the burden of persuasion lies where it usually falls, upon the party
contend first that a close reading of IDEA's text compels a conclusion
in their favor. They urge that we should interpret the statutory words
"due process" in light of their constitutional meaning,
and apply the balancing test established by Mathews v. Eldridge,
424 U. S. 319 (1976). Even assuming that the Act incorporates constitutional
due process doctrine, Eldridge is no help to petitioners, because
"[o]utside the criminal law area, where special concerns attend,
the locus of the burden of persuasion is normally not an issue of
federal constitutional moment." Lavine v. Milne, 424 U.
S. 577, 585 (1976).
next contend that we should take instruction from the lower court
opinions of Mills v. Board of Education, 348 F. Supp. 866 (D.
C. 1972), and Pennsylvania Association for Retarded Children v.
Commonwealth, 334 F. Supp. 1257 (ED Pa. 1971) (hereinafter PARC).
IDEA's drafters were admittedly guided "to a significant extent"
by these two landmark cases. Rowley,
458 U. S., at 194. As the court below noted, however, the fact that
Congress "took a number of the procedural safeguards from PARC
and Mills and wrote them directly into the Act" does not
allow us to "conclude . . . that Congress intended to adopt the
ideas that it failed to write into the text of the statute."
377 F. 3d, at 455.
also urge that putting the burden of persuasion on school districts
will further IDEA's purposes because it will help ensure that children
receive a free appropriate public education. In truth, however, very
few cases will be in evidentiary equipoise. Assigning the burden of
persuasion to school districts might encourage schools to put more
resources into preparing IEPs and presenting their evidence. But IDEA
is silent about whether marginal dollars should be allocated to litigation
and administrative expenditures or to educational services. Moreover,
there is reason to believe that a great deal is already spent on the
administration of the Act. Litigating a due process complaint is an
expensive affair, costing schools approximately $8,000-to-$12,000
per hearing. See Department of Education, J. Chambers, J. Harr, &
A. Dhanani, What Are We Spending on Procedural Safeguards in Special
Education 1999-2000, p. 8 (May 2003) (prepared under contract
by American Institute for Research, Special Education Expenditure
Project). Congress has also repeatedly amended the Act in order to
reduce its administrative and litigation-related costs. For example,
in 1997 Congress mandated that States offer mediation for IDEA disputes.
with Disabilities Education Act Amendments of 1997, Pub. L. 105-17,
§615(e), 111 Stat. 90, 20 U. S. C. §1415(e). In 2004, Congress
added a mandatory "resolution session" prior to any due
process hearing. Individuals
with Disabilities Education Improvement Act of 2004, Pub. L. 108-446,
§615(7)(f)(1)(B), 118 Stat. 2720, 20 U. S. C. A. §1415(f)(1)(B)
(Supp. 2005). It also made new findings that "[p]arents and schools
should be given expanded opportunities to resolve their disagreements
in positive and constructive ways," and that "[t]eachers,
schools, local educational agencies, and States should be relieved
of irrelevant and unnecessary paperwork burdens that do not lead to
improved educational outcomes." §§1400(c)(8)-(9).
in effect ask this Court to assume that every IEP is invalid until
the school district demonstrates that it is not. The Act does not
support this conclusion. IDEA relies heavily upon the expertise of
school districts to meet its goals. It also includes a so-called "stay-put"
provision, which requires a child to remain in his or her "then-current
educational placement" during the pendency of an IDEA hearing.
§1415(j). Congress could have required that a child be given
the educational placement that a parent requested during a dispute,
but it did no such thing. Congress appears to have presumed instead
that, if the Act's procedural requirements are respected, parents
will prevail when they have legitimate grievances. See Rowley,
supra, at 206 (noting the "legislative conviction that
adequate compliance with the procedures prescribed would in most cases
assure much if not all of what Congress wished in the way of substantive
content in an IEP").
most plausible argument is that "[t]he ordinary rule, based on
considerations of fairness, does not place the burden upon a litigant
of establishing facts peculiarly within the knowledge of his adversary."
United States v. New York, N. H. & H. R. Co., 355 U. S.
253, 256, n. 5 (1957); see also Concrete Pipe & Products of
Cal., Inc. v. Construction Laborers Pension Trust for Southern Cal.,
508 U. S. 602, 626 (1993). But this "rule is far from being universal,
and has many qualifications upon its application." Greenleaf's
Lessee v. Birth, 6 Pet. 302, 312 (1832); see also McCormick
§337, at 413 ("Very often one must plead and prove matters
as to which his adversary has superior access to the proof").
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
with them. See School
Comm. of Burlington v. Department of Ed. of Mass., 471 U.
S. 359, 368 (1985). As noted above, 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). 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.
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. Pub.
L. 108-446, §615(c)(2)(B)(i)(I), 118 Stat. 2718, 20 U. S.
C. A. §1415(c)(2)(B)(i)(I) (Supp. 2005). Prior to a hearing,
the parties must disclose evaluations and recommendations that they
intend to rely upon. 20 U. S. C. §1415(f)(2). IDEA hearings 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. See
§1415(a). Finally, and perhaps most importantly, parents
may recover attorney's fees if they prevail. §1415(i)(3)(B).
These protections ensure that the school bears no unique informational
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. See, e.g., Minn. Stat.
§125A.091, subd. 16 (2004); Ala. Admin. Code Rule 290-8-9-.08(8)(c)(6)
(Supp. 2004); Alaska Admin. Code tit. 4, §52.550(e)(9) (2003);
Del. Code Ann., Tit. 14, §3140 (1999). 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
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,
Justice took no part in the consideration or decision of this case.
common ground that no single principle or rule solves all cases by
setting forth a general test for ascertaining the incidence of proof
burdens when both a statute and its legislative history are silent
on the question. See Alaska Dept. of Environmental Conservation
v. EPA, 540 U. S. 461, 494, n. 17 (2004); see also ante,
at 7; post, at 1-2 (Ginsburg, J., dissenting). Accordingly, I do not
understand the majority to disagree with the proposition that a court,
taking into account " 'policy considerations, convenience, and
fairness,' " post, at 1 (Ginsburg, J., dissenting), could
conclude that the purpose of a statute is best effectuated by placing
the burden of persuasion on the defendant. Moreover, I agree with
much of what Justice Ginsburg has written about the special aspects
of this statute. I have, however, decided to join the Court's disposition
of this case, not only for the reasons set forth in Justice O'Connor's
opinion, but also because I believe that we should presume that public
school officials are properly performing their difficult responsibilities
under this important statute.
the legislature is silent on the burden of proof, courts ordinarily
allocate the burden to the party initiating the proceeding and seeking
relief. As the Fourth Circuit recognized, however, "other factors,"
prime among them "policy considerations, convenience, and fairness,"
may warrant a different allocation. 377 F. 3d 449, 452 (2004) (citing
2 J. Strong, McCormick on Evidence §337, p. 415 (5th ed.
1999) (allocation of proof burden "will depend upon the weight
... given to any one or more of several factors, including: ... special
policy considerations ...[,] convenience, ... [and] fairness"));
see also 9 J. Wigmore, Evidence §2486, p. 291 (J. Chadbourn
rev. ed. 1981) (assigning proof burden presents "a question of
policy and fairness based on experience in the different situations").
The Court has followed the same counsel. See Alaska Dept. of Environmental
Conservation v. EPA, 540 U. S. 461, 494, n. 17 (2004) ("No
`single principle or rule ... solve[s] all cases and afford[s] a general
test for ascertaining the incidence' of proof burdens." (quoting
Wigmore, supra, §2486, p. 288; emphasis deleted)). For
reasons well stated by Circuit Judge Luttig, dissenting in the Court
of Appeals, 377
F. 3d, at 456-459, I am persuaded that "policy considerations,
convenience, and fairness" call for assigning the burden of proof
to the school district in this case.
with Disabilities Education Act (IDEA), 20 U. S. C. §1400 et
seq., was designed to overcome the pattern of disregard and neglect
disabled children historically encountered in seeking access to public
education. See §1400(c)(2) (congressional findings); S. Rep.
No. 94-168, pp. 6, 8-9 (1975); Mills v. Board of Ed. of District
of Columbia, 348 F. Supp. 866 (DC 1972); Pennsylvania Assn.
for Retarded Children v. Pennsylvania, 334 F. Supp. 1257 (ED Pa.
1971), and 343 F. Supp. 279 (ED Pa. 1972). Under typical civil rights
and social welfare legislation, the complaining party must allege
and prove discrimination or qualification for statutory benefits.
See, e.g., St. Mary's Honor Center v. Hicks, 509 U. S. 502,
511 (1993) (Title VII of the Civil Rights Act of 1964, 42 U. S. C.
§2000e et seq.); Director, Office of Workers' Compensation
Programs v. Greenwich Collieries, 512 U. S. 267, 270 (1994) (Black
Lung Benefits Act, 30 U. S. C. §901 et seq.). The IDEA is atypical
in this respect: It casts an affirmative, beneficiary-specific obligation
on providers of public education. School districts are charged with
responsibility to offer to each disabled child an individualized education
program (IEP) suitable to the child's special needs. 20 U. S. C. §§1400(d)(1),
1412(a)(4), 1414(d). The proponent of the IEP, it seems to me, is
properly called upon to demonstrate its adequacy.
with the full range of education facilities in the area, and informed
by "their experiences with other, similarly-disabled children,"
F. 3d, at 458 (Luttig, J., dissenting), "the school district
is . . . in a far better position to demonstrate that it has fulfilled
[its statutory] obligation than the disabled student's parents are
in to show that the school district has failed to do so," id.,
at 457. Accord Oberti v. Board of Ed. of Borough of Clementon School
Dist., 995 F. 2d 1204, 1219 (CA3 1993) ("In practical terms,
the school has an advantage when a dispute arises under the Act: the
school has better access to 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."); Lascari v. Board
of Ed. of Ramapo Indian Hills Regional High School Dist., 116
N. J. 30, 45-46, 560 A. 2d 1180, 1188-1189 (1989) (in view of the
school district's "better access to relevant information,"
parent's obligation "should be merely to place in issue the appropriateness
of the IEP. The school board should then bear the burden of proving
that the IEP was appropriate. In reaching that result, we have sought
to implement the intent of the statutory and regulatory schemes.").
school districts striving to balance their budgets, if "[l]eft
to [their] own devices," will favor educational options that
enable them to conserve resources. Deal
v. Hamilton County Bd. of Ed., 392 F. 3d 840, 864-865 (CA6
2004). Saddled with a proof burden in administrative "due process"
hearings, parents are likely to find a district-proposed IEP "resistant
to challenge." 377
F. 3d, at 459 (Luttig, J., dissenting). Placing the burden on
the district to show that its plan measures up to the statutorily
mandated "free appropriate public education," 20 U. S. C.
§1400(d)(1)(A), will strengthen school officials' resolve to
choose a course genuinely tailored to the child's individual needs.
acknowledges that "[a]ssigning the burden of persuasion to school
districts might encourage schools to put more resources into preparing
IEPs." Ante, at 9. Curiously, the Court next suggests
that resources spent on developing IEPs rank as "administrative
expenditures" not as expenditures for "educational services."
Ibid. Costs entailed in the preparation of suitable IEPs, however,
are the very expenditures necessary to ensure each child covered by
IDEA access to a free appropriate education. These outlays surely
relate to "educational services." Indeed, a carefully designed
IEP may ward off disputes productive of large administrative or litigation
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 Schaffer's 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.
nine States, as friends of the Court, have urged that placement of
the burden of persuasion on the school district best comports with
IDEA's aim. See Brief
for Virginia et al. as Amici Curiae. If allocating the burden
to school districts would saddle school systems with inordinate costs,
it is doubtful that these States would have filed in favor of petitioners.
Cf. Brief for United States as Amicus Curiae Supporting Appellees
Urging Affirmance in 00-1471 (CA4), p. 12 ("Having to carry the
burden of proof regarding the adequacy of its proposed IEP ... should
not substantially increase the workload for the school."). 
demur to the Fourth Circuit's observation that courts "do not
automatically assign the burden of proof to the side with the bigger
F. 3d, at 453, for no such reflexive action is at issue here.
It bears emphasis that "the vast majority of parents whose children
require the benefits and protections provided in the IDEA" lack
"knowledg[e] about the educational resources available to their
[child]" and the "sophisticat[ion]" to mount an effective
case against a district-proposed IEP. Id., at 458 (Luttig,
J., dissenting); cf. 20 U. S. C. §1400(c)(7)-(10). See generally
M. Wagner, C. Marder, J. Blackorby, & D. Cardoso, The Children
We Serve: The Demographic Characteristics of Elementary and Middle
School Students with Disabilities and their Households (Sept.
2002), available at http://www.seels.net/designdocs/SEELS_Children
We Serve Report.pdf (as visited Nov. 8, 2005, and available in
Clerk of Court's case file). In this setting, "the party with
the `bigger guns' also has better access to information, greater expertise,
and an affirmative obligation to provide the contested services."
F. 3d, at 458 (Luttig, J., dissenting). Policy considerations,
convenience, and fairness, I think it plain, point in the same direction.
Their collective weight warrants a rule requiring a school district,
in "due process" hearings, to explain persuasively why its
proposed IEP satisfies IDEA's standards. Ibid. I would therefore
reverse the judgment of the Fourth Circuit.
majority points out, the Individuals with Disabilities Education Act
(Act), 20 U. S. C. §1400 et seq., requires school districts to
"identify and evaluate disabled children, ... develop an [Individualized
Education Program] for each one ... , and review every IEP at least
once a year." Ante, at 3 (opinion of the Court). A parent
dissatisfied with "any matter relating  to the identification,
evaluation, or educational placement of the child," or  to
the "provision of a free appropriate public education,"
of the child, has the opportunity "to resolve such disputes through
a mediation process." 20 U. S. C. §§1415(a), (b)(6)(A),
(k) (Supp. 2005). The Act further provides the parent with "an
opportunity for an impartial due process hearing" provided by
the state or local education agency. §1415(f)(1)(A). If provided
locally, either party can appeal the hearing officer's decision to
the state educational agency. §1415(g). Finally, the Act allows
any "party aggrieved" by the results of the state hearing(s),
"to bring a civil action" in a federal district court. §1415(i)(2)(A).
In sum, the Act provides for school board action, followed by (1)
mediation, (2) an impartial state due process hearing with the possibility
of state appellate review, and, (3) federal district court review.
also sets forth minimum procedures that the parties, the hearing officer,
and the federal court must follow. See, e.g., §1415(f)(1) (notice);
§1415(f)(2) (disclosures); §1415(f)(3) (limitations on who
may conduct the hearing); §1415(g) (right to appeal); §1415(h)(1)
("the right to be accompanied and advised by counsel");
§1415(h)(2) ("the right to present evidence and confront,
cross-examine, and compel the attendance of witnesses"); §1415(h)(3)
(the right to a transcript of the proceeding); §1415(h)(4) ("the
right to written ... findings of fact and decisions"). Despite
this detailed procedural scheme, the Act is silent on the question
of who bears the burden of persuasion at the state "due process"
silence suggests that Congress did not think about the matter of the
burden of persuasion. It is, after all, a relatively minor issue that
should not often arise. That is because the parties will ordinarily
introduce considerable evidence (as in this case where the initial
3-day hearing included testimony from 10 witnesses, 6 qualified as
experts, and more than 50 exhibits). And judges rarely hesitate to
weigh evidence, even highly technical evidence, and to decide a matter
on the merits, even when the case is a close one. Thus, cases in which
an administrative law judge (ALJ) finds the evidence in precise equipoise
should be few and far between. Cf. O'Neal v. McAninch, 513
U. S. 432, 436-437 (1995). See also Individuals
with Disabilities Education Improvement Act of 2004, Pub. L. 108-446,
§§615(f)(3)(A)(ii)-(iv), 118 Stat. 2721, 20 U. S. C. A.
§§1415(f)(3)(A)(ii)-(iv) (Supp. 2005) (requiring appointment
of ALJ with technical capacity to understand Act).
the hearing officer held that before him was that rara avis
--a case of perfect evidentiary equipoise. Hence we must infer from
Congress' silence (and from the rest of the statutory scheme) which
party -- the parents or the school district -- bears the burden of
reasonably argue, as the Court holds, that the risk of nonpersuasion
should fall upon the "individual desiring change." That,
after all, is the rule courts ordinarily apply when an individual
complains about the lawfulness of a government action. E.g., ante,
at 6-11 (opinion of the Court); 377 F. 3d 449 (CA4 2004) (case below);
Devine v. Indian River County School Bd., 249 F. 3d 1289 (CA11
2001). On the other hand, one can reasonably argue to the contrary,
that, given the technical nature of the subject matter, its human
importance, the school district's superior resources, and the district's
superior access to relevant information, the risk of nonpersuasion
ought to fall upon the district. E.g., ante, at 1-5 (Ginsburg,
J., dissenting); 377
F. 3d, at 456-459 (Luttig, J., dissenting); Oberti v. Board
of Ed., 995 F. 2d 1204 (CA3 1993); Lascari v. Board of Ed.,
116 N. J. 30, 560 A. 2d 1180 (1980). My own view is that Congress
took neither approach. It did not decide the "burden of persuasion"
question; instead it left the matter to the States for decision.
says that the "establish[ment]" of "procedures"
is a matter for the "State" and its agencies. §1415(a).
It adds that the hearing in question, an administrative hearing, is
to be conducted by the "State" or "local educational
agency." 20 U. S. C. A. §1415(f)(1)(A) (Supp. 2005). And
the statute as a whole foresees state implementation of federal standards.
§1412(a); Cedar Rapids Community School Dist. v. Garret F., 526
U. S. 66, 68 (1999); Board of Ed. of Hendrick Hudson Central School
Dist., Westchester Cty. v. Rowley, 458 U. S. 176, 208 (1982). The
minimum federal procedural standards that the Act specifies are unrelated
to the "burden of persuasion" question. And different States,
consequently and not surprisingly, have resolved it in different ways.
See, e.g., Alaska Admin. Code, tit. 4, §52.550(e)(9) (2003) (school
district bears burden); Ala. Admin. Code Rule 290-8-9.08(8)(c)(6)(ii)(I)
(Supp. 2004); (same); Conn. Agencies Regs. §10-76h-14 (2005)
(same); Del. Code Ann., tit. 14, §3140 (1999) (same); 1 D. C.
Mun. Regs., tit. 5, §3030.3 (2003) (same); W. Va. Code Rules
§126-16-8.1.11(c) (2005) (same); Ind. Admin. Code, tit. 511,
7-30-3 (2003) (incorporating by reference Ind. Code §4-21.5-3-14
(West 2002)) (moving party bears burden); 7 Ky. Admin. Regs., tit.
707, ch. 1:340, Section 7(4) (2004) (incorporating by reference Ky.
Rev. Stat. Ann. §13B.090(7) (Lexis 2003)) (same); Ga. Comp. Rules
& Regs., Rule 160-4-7-.18(1)(g)(8) (2002) (burden varies depending
upon remedy sought); Minn. Stat. Ann. §125A.091, subd. 16 (West
Supp. 2005) (same). There is no indication that this lack of uniformity
has proved harmful.
in the Act suggests a need to fill every interstice of the Act's remedial
scheme with a uniform federal rule. See Kamen v. Kemper Financial
Services, Inc., 500 U. S. 90, 98 (1991) (citations omitted). And should
some such need arise -- i.e., if non-uniformity or a particular state
approach were to prove problematic -- the Federal Department of Education,
expert in the area, might promulgate a uniform federal standard, thereby
limiting state choice. 20 U. S. C. A. §1406(a) (Supp. 2005);
Irving Independent School Dist. v. Tatro, 468 U. S. 883, 891-893 (1984);
see also Barnhart v. Walton, 535 U. S. 212, 217-218 (2002); NationsBank
of N. C., N. A. v. Variable Annuity Life Ins. Co., 513 U. S. 251,
256-257 (1995); Chevron U. S. A. Inc. v. Natural Resources Defense
Council, Inc., 467 U. S. 837, 842-845 (1984).
importantly, Congress has made clear that the Act itself represents
an exercise in "cooperative federalism." See ante (opinion
of the Court), at 2-3. Respecting the States' right to decide this
procedural matter here, where education is at issue, where expertise
matters, and where costs are shared, is consistent with that cooperative
approach. See Wisconsin Dept. of Health and Family Servs. v. Blumer,
534 U. S. 473, 495 (2002) (when interpreting statutes "designed
to advance cooperative federalism[,] ... we have not been reluctant
to leave a range of permissible choices to the States"). Cf.
Smith v. Robbins, 528 U. S. 259, 275 (2000); New State Ice Co. v.
Liebmann, 285 U. S. 262, 311 (1932) (Brandeis, J., dissenting). And
judicial respect for such congressional determinations is important.
Indeed, in today's technologically and legally complex world, whether
court decisions embody that kind of judicial respect may represent
the true test of federalist principle. See AT&T;Corp. v. Iowa
Utilities Bd., 525 U. S. 366, 420 (1999) (Breyer, J., concurring in
part and dissenting in part).
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.
Cf., e.g., Ind. Admin. Code, tit. 511,7-30-3 (2003) (hearings under
the Act conducted in accord with general state administrative law);
7 Ky. Admin. Regs., tit. 707, ch. 1:340, Section 7(4) (2004) (same).
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.
 The Court suggests that the IDEA's stay-put provision, 20 U. S.
C. §1415(j), supports placement of the burden of persuasion on
the parents. Ante, at 10. 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." Ibid. But neither did Congress require that
the IEP advanced by the school district go into effect during the
pendency of a dispute.
Court observes that decisions placing "the entire burden of persuasion
on the opposing party at the outset of a proceeding ... are extremely
rare." Ante, at 8. In cases of this order, however, the persuasion
burden is indivisible. It must be borne entirely by one side or the
other: Either the school district must establish the adequacy of the
IEP it has proposed or the parents must demonstrate the plan's inadequacy.
the Fourth Circuit, the United States filed in favor of the Schaffers;
in this Court, the United States supported Montgomery County.