Wrightslaw

The Special Ed Advocate Newsletter
February 22, 2005


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Issue - 299
ISSN: 1538-3202

In this Issue


Breaking News! Supreme Court to Hear Burden of Proof Case

4th Circuit Issues New Decision in ABA Reimbursement Case

Update on Surviving Due Process: Stephen Jeffers v. School Bd

Special Education Due Process Hearings

Wrightslaw is Coming to NY, IN, MO, AZ

Free Pub: Guide to IDEA 2004 - FAQs

Annual Conference: Council of Parent Attorneys & Advocates (March 10-13)

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At Wrightslaw, our goals are to help you gain the information and skills you need navigate the challenging, changing world of special education.

Highlights: Breaking news - Supreme Court agrees to to hear burden of proof case; 4th Circuit issues new decision in ABA reimbursement case; update on Surviving Due Process: Stephen Jeffers v. School Board; Wrightslaw coming to NY, IN, MO & AZ; free pub - Guide to IDEA 2004; annual conference of the Council of Parent Attorneys & Advocates. Download this newsletter.

Quote of the Week: "Other circuits are split - and splintered in reasoning - on this question." (Weast v. Schaffer, 377 F.3d 449 (4th Cir. 2004)

Wrightslaw is ranked #1 in education law, special education law, and special education advocacy. (2004 Alexa rankings)


1. Breaking News! U.S. Supreme Court Agrees to Hear Burden of Proof Case!

Today, February 22, 2005, the U. S. Supreme Court granted certiorari to hear Brian Schaffer's appeal of an adverse ruling from the U. S. Court of Appeals for the Fourth Circuit. This decision assigns the burden of proof to the party who initiates a special education due process hearing.

Split Among Circuits

In the decision, the U. S. Court of Appeals for the Fourth Circuit noted, "Other circuits are split - and splintered in reasoning - on this question. Three circuits assign the burden to the parents, and four (perhaps five) assign it to the school system."

2-1 Decision

In their 2-1 decision on July 29, 2004, the majority held that:

"In sum, the IDEA does not allocate the burden of proof, and we see no reason to depart from the general rule that a party initiating a proceeding bears that burden. Congress was aware that school systems might have an advantage in administrative proceedings brought by parents to challenge IEPs. To avoid this problem, Congress provided a number of procedural safeguards for parents, but assignment of the burden of proof to school systems was not one of them. Because Congress took care in specifying specific procedural protections necessary to implement the policy goals of the Act, we decline to go further, at least insofar as the burden of proof is concerned. Accordingly, we hold that parents who challenge an IEP have the burden of proof in the administrative hearing. We reverse the judgment of the district court and remand for further proceedings consistent with this opinion."

Judge Luttig, in his dissent, wrote:

"I fear that, in reaching the contrary conclusion, the majority has been unduly influenced by the fact that the parents of the disabled student in this case have proven to be knowledgeable about the educational resources available to their son and sophisticated (if yet unsuccessful) in their pursuit of these resources. If so, it is regrettable. These parents are not typical, and any choice regarding the burden of proof should not be made in the belief that they are. For the vast majority of parents whose children require the benefits and protections provided in the IDEA, the specialized language and technical educational analysis with which they must familiarize themselves as a consequence of their child's disability will likely be obscure, if not bewildering. By the same token, most of these parents will find the educational program proposed by the school district resistant to challenge: the school district will have better information about the resources available to it, as well as the benefit of its experience with other disabled children. With the full mix of parents in mind, I believe that the proper course is to assign the burden of proof in due process hearings to the school district."

"I respectfully dissent."

In html: The decision in Weast v. Schaffer, 377 F.3d 449 (4th Cir. 2004) is available in html at:

http://www.wrightslaw.com/law/caselaw/04/4th.schaffer.weast.md.htm

In PDF: The decision in Weast v. Schaffer is also available in pdf at:

http://www.wrightslaw.com/law/caselaw/04/4th.schaffer.weast.md.pdf

Petition for Certiorari

Brian Schaffer's Petition for Certiorari, prepared by his attorney William Hurd, is available at:

http://www.wrightslaw.com/law/caselaw/05/ussupct.schaffer.petition.hurd.pdf

Read Supreme Court Agrees to Hear Burden of Proof Case!

More Special Education News


2. Fourth Circuit Issues New Decision in ABA Reimbursement Case

Z.P. is a young child with autism. Two years ago, Z.P.'s parents rejected the school's proposed placement in a typical preschool special ed program and placed him in a private school that provides intensive one-on-one services to young children with autism. The parents requested tuition reimbursement from their school district.

The parents received a favorable decision from the hearing officer. The school district appealed to the U. S. District Court. The District Court reversed the hearing officer and found for the school district. The parents appealed to the
U. S. Court of Appeals for the Fourth Circuit. The Fourth Circuit heard oral argument on September 29, 2004.

On February 11, 2005, the U. S. Court of Appeals for the Fourth Circuit issued a decision in School Bd of Henrico County VA v. Z.P. , reversing the District Court and remanding the case back with instructions.

In html: Read School Bd of Henrico County VA v. Z.P. from: http://www.wrightslaw.com/law/caselaw/05/4th.henrico.va.zp.htm

In PDF: Download School Bd of Henrico County VA v. Z.P. from:
http://www.wrightslaw.com/law/caselaw/05/4th.henrico.va.zp.pdf

More Special Education Caselaw

More Autism / ABA Caselaw


3. Update on Surviving Due Process: Stephen Jeffers v. School Board

In October 2004, we filmed our first DVD, Surviving Due Process: Stephen Jeffers v. School Board (ISBN: 1-892320-04-5). Surviving Due Process takes you through a special education due process hearing, from initial preparations to testimony by the final witness.

We explained that Surviving Due Process was based on an actual case that was on appeal. Surviving Due Process is based on School Board of Henrico v. Z.P.

When we filmed Surviving Due Process, the due process hearing had just been held in Z.P. v. Henrico School Board. The hearing officer had not issued a decision. The individuals who played the roles of teachers, therapists, psychologist, special ed director, and attorneys in Surviving Due Process read the transcript of the due process hearing in Z.P. v. Henrico School Board.

Is the new decision the last act in School Board of Henrico County VA v. Z.P.?

It's hard to say. The school district may ask the full Court of Appeals for the Fourth Circuit to rehear the case en banc. The school district may appeal to the U. S. Supreme Court. Or - this may be the last act.

We'll keep you posted on any new developments in School Board of Henrico County VA v. Z.P.

If you are have questions about due process hearings, you'll want to see Surviving Due Process: Stephen Jeffers v. School Board


4. Special Education Due Process Hearings

The Individuals with Disabilities Education Act includes rules for resolving disputes and complaints. These rules include mediation, due process hearings, and appeals to state or federal court. (Wrightslaw: Special Education Law, page 71)

Due process hearings are usually formal, contested, adversarial trials. Special education cases are similar to medical malpractice cases, with battles of expert witnesses, and the emotions of bitterly contested divorce cases with child custody and equitable distribution issues.

Before you request a due process hearing, you should be familiar with the federal statute and regulations and your state special education statute and regulations. You should also read the Rules of Adverse Assumptions. (Chapter 21, Wrightslaw: From Emotions to Advocacy)

For an excellent overview, read Special Education Due Process Hearings by Sonja Kerr, Esq.

Mehfoud & Wright

The following articles by school board attorney Kathleen Mehfoud and parent attorney Pete Wright will show you how attorneys frame their cases:

Representing The Special Education Child: A Manual for the Attorney & Advocate by Peter W.D. Wright, Esq.

Special Education Law: The School Board Perspective by Kathleen S. Mehfoud, Esq.

Learn more about due process.


5. Coming Soon! Wrightslaw Programs in NY, Indiana, Missouri, Arizona

Wrightslaw Special Education Law and Advocacy Training Programs focus on four areas: special education laws, rights & responsibilities; how to use the bell curve to measure educational progress & regression; SMART IEPs; and advocacy tactics & strategies.

Long Island, NY: March 4-5, 2005 (Mini Boot Camp)

Fort Wayne, IN: March 25, 2005 (Advocacy Training) Attorney Wayne Steedman and advocate Pat Howey present a full-day Wrightslaw training program.

Kansas City, MO: March 29, 2005 (Advocacy Training) - NEW

Glendale, AZ: April 1-2, 2005 (Boot Camp)

All participants will receive two books, Wrightslaw: Special Education Law and Wrightslaw: From Emotions to Advocacy, (Value: $59.90), and the new publication, The Individuals with Disabilities Education Improvement Act of 2004: Overview, Explanation and Comparison of IDEA 2004 & IDEA 97 by Peter Wright.

If you are interested in bringing a Wrightslaw program to your community, please read FAQs about Seminars.


6. Guide to IDEA 2004 - Frequently Asked Questions

When it comes to IDEA 2004, confusion reigns. Guide to IDEA 2004: Frequently Asked Questions clears up some of this by describing changes in several key areas;

* Highly Qualified Teachers
* Funding
* Rights to Children Who Attend Private Schools
* Responsibilities of charter schools.
* New Requirements about medication
* Timelines for Evaluations, Eligibility & IEPs
* When Children Move - to another district, to another state
* Parental consent for evaluation or special ed services
* Participation in State Assessments
* Alternate assessments?
* IEPs & IEP Team members
* Procedural Safeguards
* Mediation & legally binding agreements
* Resolution sessions
* Qualifications for hearing officers
* Discipline & manifestation reviews

Guide to IDEA 2004: Frequently Asked Questions was published by the Committee on Education and the Workforce on February 16, 2005.

More Free Pubs


One obstacle in advocating for a child with a disability is finding the time to do research. We spend hours collecting information so you can spend your time learning, not searching.

When you visit our Free Pubs page, you can download free publications about dozens of topics - IEPs, special education, autism, transition, reading, children's mental health, harassment, high-stakes testing, retention and social promotion, zero tolerance, discipline, and more.


7. Annual Conference: Council of Parent Attorneys and Advocates in Atlanta (March 10-13, 2005)

The Council of Parent Attorneys and Advocates (COPAA), a national organization of parents of children with disabilities and their advocates and lawyers, will hold their annual conference in Atlanta on March 10-13, 2005.

The conference provides unique opportunities for training and networking with experienced, knowledgeable attorneys and advocates on special education issues. Participants will learn about recent cases, legislative changes, and tactics.

On Thursday and Friday, March 10-11, there will be four intensive hands-on skills trainings:

Track 1: Parents and Advocates Skills Training
Track 2: Due Process Hearings For Attorneys
Track 3: Federal Litigation For Attorneys
Track 4: Orton Gillingham Course

Download & Distribute Info l Conference at a Glance l Conference Info & Registration l Online Registration

Cost: Fees vary, depending on days attended and membership status. Tell them Pete & Pam sent you!


8. Subscription & Contact Info

The Special Ed Advocate is a free online newsletter about special education legal and advocacy issues, cases, and tactics and strategies. Subscribers receive "alerts" about new cases, events, and special offers on Wrightslaw books.

Law Library Seminars & Training
Advocacy Yellow Pages for Kids
No Child Left Behind Free Newsletter
IDEA 2004 Newsletter Archives

Contact Info
Pete and Pam Wright
Wrightslaw & The Special Ed Advocate
P. O. Box 1008
Deltaville, VA 23043
Website: http://www.wrightslaw.com
Email: newsletter@wrightslaw.com


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