Wrightslaw

The Special Ed Advocate Newsletter
October 4, 2005


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Issue - 324
ISSN: 1538-3202

In this Issue


1. Oral Argument in Schaffer v. Weast Tomorrow!

2. Burden of Proof - On Parents or Schools

3. Wrightslaw Training in Hartford CT (Oct 14-15)

4. Taking Sides: Amicus Briefs - an a Flip-flop

5. Supreme Court Decisions in Special Ed Cases

6. Subscription & Contact Info

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

Highlights: Oral argument in Schaffer v. Weast tomorrow; burden of proof - on parents or schools; Wrightslaw training in Hartford, CT; Taking Sides on Amicus Briefs - and a flip-flop; Supreme Court decisions in special ed cases.

The Special Ed Advocate newsletter is free - please forward this issue or the subscription link to friends and colleagues so they can learn about special education law and advocacy too. We appreciate your help!

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1. Oral Argument in Schaffer v. Weast Tomorrow!

On Wednesday, October 5, the U. S. Supreme Court will hear oral argument in Schaffer v. Weast. The high court’s decision about who bears the burden of proof in IEP disputes is of enormous importance, and is likely to shift the balance of power in IEP meetings and due process hearings. Question Presented

The attorney for Brian Schafer is William Hurd of Troutman Sanders LLP (Bill Hurd's bio).

Twelve years ago, on October 6, 1993, the Supreme Court heard oral argument in Florence County Sch. Dist IV v. Shannon Carter (510 U. S. 7). Thirty-four days later, the Court issued a unanimous 9-0 decision on Shannon's behalf.

The attorney for Shannon Carter was Pete Wright. While preparing for oral argument, Pete learned, "Tell the story and make them want to rule in your favor in a minute and a half." Transcript of Oral  Argument in Florence County Sch. Dist IV v. Shannon Carter.

Pete and Pam Wright will attend oral argument in Schaffer v. Weast tomorrow. We will tell you what happened in an Alert on Wednesday evening or Thursday morning. Stay tuned!


2. Burden of Proof - On Parents or Schools?

Do you know why the burden of proof is so important in special education cases? Do you know why advocates for children believe that the burden of proof should be on school districts?

In August, the National Council on Disability (NCD) issued a Position Paper on the Schaffer case, IDEA - Burden of Proof - On Parents or Schools? PDF version

The NCD takes the position that the burden of proof should always be on school districts. This comprehensive paper describes the history of the Schaffer case and the Court's history in resolving similar cases where the federal statute does not assign the burden of proof to one party or the other. The author of IDEA - Burden of Proof is Pete Wright. Download in pdf


3. Wrightslaw Training Program in Hartford, CT (October 14-15, 2005)

Pete and Pam Wright will present Putting the Pieces Together: Special Education Law and Advocacy Training in Hartford on October 14 & 15, 2005. The program is being sponsored by the Learning Disabilities Association of Connecticut.

Participants will learn about requirements in IDEA 2004 and NCLB including:

* New requirements for initial evaluations, reevaluations & parental consent
* New requirements for IEPs, IEP teams, IEP meetings
* New eligibility procedures for students with specific learning disabilities
* New procedural requirements and timelines, including the “Due Process Complaint Notice” and “Resolution (IEP) Session.”
* Reading and research based instruction
* Highly qualified special education teachers

Participants will also learn how to:

* Use tests and measurements to measure progress
* Write SMART IEPs
* Use tactics and strategies for effective advocacy

Please download and distribute the conference brochure and registration form.

For more information about this program, including special hotel rates and directions, please visit the Hartford conference info page.

More Wrightslaw Programs


4. Taking Sides: Amicus Briefs - and a Flip-flop

Nine states and more than 20 disability and legal organizations filed amicus briefs in support of Brian Schaffer and his parents.

Three states and a handful of school interest groups filed amicus briefs in support of Weast (Superintendent of Montgomery County Public Schools).

Earlier in the case, in a brief on behalf of Brian Schaffer, the U. S. Government asserted that the burden of proof should always be on school districts. This summer, they flip-flopped and filed an amicus brief against Brian Schaffer. They attempted to justify their reversal by claiming that IDEA 2004 provides greater rights for parents. Read the brief on behalf of the United States Department of Education.

Complete list of amicus briefs (and links to the briefs).

The Schaffer v. Weast page includes background information, links to all briefs filed in support of Brian Schaffer and Montgomery County Public schools, the Petition for
Certiorari, and links to the decisions from the U. S. District Court and U. S. Court of Appeals for the Fourth Circuit.


5. Supreme Court Decisions in Special Education Cases

In the 30 years since the special education law was enacted, the U. S. Supreme Court has only heard a handful handful of special education cases. Key cases are:

Board of Ed. of Hendrick Hudson Central School Dist. v. Rowley 458 U.S. 176 (1982). First decision in a special education case; defined "free appropriate public education."

Burlington Sch. Committee v. Mass. Bd. of Ed., 471 U. S. 359 (1985). Clarified procedural safeguards, parent role in educational decision-making; tuition reimbursement for private placement; child's placement during dispute about FAPE.

Honig v. Doe, 484 U.S. 305 (1988). Strong decision in school discipline case on behalf of emotionally disturbed children who had academic and social problems. Court clarified procedural issues designed to protect children from school officials, parent role, stay put, that schools shall not expel children for behaviors related to their handicaps.

Florence Co. Sch Dist Four v. Shannon Carter, 510 U.S. 7, (1993). If the public school program does not provide an appropriate education and the parents place the child into a private program where the child does receive an appropriate education, the parents are entitled to reimbursement for the child's education. This decision opened the door to children with autism who receive ABA / Lovaas therapy.  Links to all decisions, transcript of oral argument in Carter

Cedar Rapids v. Garret F. (1999) - Affirmed that schools must provide related services to children who need services to attend school. Analysis

Special Education Caselaw l Law Library

6. 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