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U. S. Supreme Court Hears
Oral Argument in Schaffer v. Weast
by Peter W. D. Wright, Esq.

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On Wednesday, October 5, the U. S. Supreme Court heard oral arguments in two cases.

Gonzales v. Oregon
In the first case, Gonzales v. Oregon, the Supreme Court dealt with the emotionally charged issue of physician assisted suicide.

In 1997, Oregon enacted a law that allows physician-assisted suicide. The state claimed that this falls within the state's prerogative to regulate the practice of medicine. In 2001, former Attorney General John D. Ashcroft issued a directive, threatening to punish any Oregon doctor who prescribed controlled drugs to help a terminally ill patient end his or her own life. Question: Can the federal government prevent doctors from helping terminally ill patients end their lives?

Schaffer v. Weast
In the second case, Schaffer v. Weast, the Court heard oral arguments on the burden of proof in special education cases. In a dispute between parents and school officials, should schools be required to prove that the plans they propose are adequate and appropriate?

Pete Wright took notes of the questions asked by the Justices during the oral argument in Schaffer v. Weast. Chief Justice Roberts recused himself and did not participate, leaving eight Justices to decide.

Some of these questions are verbatim; most synthesize the essence of the question. At times, several Justices asked questions at once, in a rapid-fire manner.

At the end of these notes is a discussion of Pete Wright's observations and impressions.

Justice Questions to the Parent/Child Attorney
O'Connor Congress was silent about the burden of proof. Was there anything in the legislative history that showed a discussion about burden of proof?
Scalia Are Department of Defense schools governed by IDEA?
Scalia If someone sues a DoD school, wouldn't burden of proof be on the parent?

What if parents agreed on an IEP and then contest it, who should have the burden of proof?

O'Connor Should a Court have to decide in each case who has the burden of proof?
Unknown It is open to a state to adopt a general burden of proof? Have some states adopted a burden of proof standard?
Ginsburg When parents object to a school's IEP, should they have the burden of going forward or the burden of persuasion?
O'Connor What Supreme Court case do you rely on?
O'Connor What burden of proof case?
Scalia Isn't the purpose of the statute to provide relief to someone who has been injured?
Scalia I just don't understand why the school should have the burden of proof. The Federal Tort Claims Act should be the guide.
Souter Isn't it a fight about whether the IEP is good or bad?
Kennedy Parents get much more initial information than most people get. Assume that the school districts have the expertise, aren't they entitled to a presumption of governmental regularity?
Breyer I've never seen a case where someone challenging an agency does not have the burden of proof.
Breyer And what if the evidence is exactly in equipoise, I haven't seen that.
Ginsburg With the burden of production or persuasion, isn't it that the usual practice that the school district goes first?
Ginsburg Who usually goes first?
Stevens Who is going to pay for all of this? Don't many of the fights occur after the placement has taken place?
. . . Discussion about economic harm to school v. educational harm to child if erroneous decision is made.
Stevens If the parents cannot pay for the private placement, is that the harm if an erroneous decision is made?
Scalia No statute pursues its purpose at all costs, especially if no harm is done, it is not play money.
Breyer The statute does not just cover the initial IEP, for example if a hyperactive child behaves badly in class and the parents might challenge the discipline, who should have the burden of proof?
Breyer A question about Lascari, the NJ Supreme Court case and initial IEP v. later IEP.
Questions to the School District Attorney
O'Connor Question relating to parent's unilateral removal of child and seeking tuition reimbursement.
Ginsburg Wasn't the child already in a private school and parents wanted to place child in public school and sought an IEP and one was proposed by the LEA?
Scalia I understand that sometimes the school district will be the complaining party, when is that?
Ginsburg Do you have any numbers regarding how many times parents have asked for due process versus the school asking for due process, isn't it overwhelmingly that the parents initiate hearings?
Ginsburg (An earlier response by attorney was factually incorrect and she forced attorney to concede the earlier inaccurate response.)
Breyer Shouldn't we leave this issue to each state or perhaps the U. S. Department of Education to promulgate rules regarding who has the burden of proof?
O'Connor Is there no state law on assignment of burden of proof on IEPs?
Scalia Most cases are in federal court. Should it be up to the federal court to determine each state's burden of proof?
Ginsburg Haven't some states said that the burden of proof is on the parent?
Kennedy Why not have a uniform federal rule?
Scalia We have a very detailed statute and yet it is silent on the burden of proof. Isn't this very unlikely?
Stevens You gave 3 examples when school district may be the complaining party and have burden of proof (parent refuses to consent to evaluation, discipline issue, school disagrees with parental request for an independent educational evaluation), but my question if parents have a valid objection to an IEP, isn't the school in the best position to tell me if the IEP is valid?
Stevens At the due process hearing, who goes first?
Stevens Are there any jurisdictions where the burden of proceeding first is different from the burden of persuasion?
Breyer Why shouldn't the law be such that it encourages the decision maker to decide the burden?
Ginsburg In a situation under Title 7, the claimant making the claim, that person has the burden of proof. But then once the claim is valid, doesn't the employer have the burden to establish the adequacy of the plan?
Ginsburg Isn't the question then about the remedy proposed by the employer, doesn't the burden of proof shift to the employer about the proposed remedy.
Scalia But what if there is no violation of law, who has the burden of proof?
Kennedy What if there is a violation, who has the burden?
Stevens Isn't Congress dissatisfied by some of the school's decisions?
Ginsburg Is there any evidence that those states that have put the burden of proof on school districts have incurred greater costs?
  Questions to U. S. Government Attorney who filed amicus brief on behalf of school district
Scalia Can the state change the burden of proof?
O'Connor Some states have assigned burden of proof to school districts.

Is there any evidence of more litigation and increased costs with states that have assigned burden of proof to school districts.

Scalia This is spending clause legislation and if the state goes beyond the law, the interest of the local school district is often different from the state.
O'Connor Do we have to decide that? Maryland does not put the burden of proof on the state or district.
Stevens In most jurisdictions, does the state put the burden of proof on the school?
Stevens In the largest volume of hearings, is the burden on the school and is there an explosion of litigation?
  Rebuttal Argument by Parent/Child Attorney
  Rebuttal lasted for three minutes. The questions focused on whether there has been any evidence of increased costs to school districts where the burden of proof is on school districts. There was also a discussion of the global cost of due process litigation compared to number of special education children and that the cost averages about $22 per child and several thousand per case.

Observations and Impressions

In my role as an observer, this oral argument was quite different from my experience when I argued on behalf of Shannon Carter on October 6, 1993.

During oral argument in Carter, it was clear that the Justices were well-prepared and familiar with the facts and issues of the case.

During oral argument in Schaffer, some Justices seemed confused about the facts of the case. Unlike Carter, there was no discussion about the rationale of the split rulings of the lower circuits. There was no discussion about U. S. Supreme Court case law regarding burden of proof when a statute is silent.

Several questions seemed to explore how the Court might avoid issuing a ruling on the case. The Court could defer to Congress or to the U. S. Department of Education and suggest that IDEA needs to address this issue, or perhaps each state can assign the burden of proof.

Several questions and responses suggested a remand of the case.

Schaffer was argued after the Gonzales "right to life / assisted suicide" case. The Gonzales case generated extensive publicity.

An Unsettled Court?

Over the past weeks, several events occurred that may have unsettled the Justices.

Until Justice O'Connor announced her resignation, there had been no changes in the Court since Ruth Ginsburg came on board 12 years ago. Justice O'Connor's announcement stunned many court watchers. The President nominated John Roberts to succeed her. Chief Justice Rehnquist died. Justice John Roberts became the new Chief Justice. On Monday, the President nominated White House counsel Harriet Miers to the high court.

After the Court heard oral argument in the emotionally charged assisted suicide case,
Chief Justice Roberts recused himself from oral argument in Schaffer.

Following the usual procedure, on Friday, October 7, 2005, eight Justices will meet in a closed session to vote on the outcome. The decision about who will draft the Opinion will be made at that time.

Some Justices will be in the majority and the dissents will be in the minority. After an opinion is drafted, it will be circulated among all the Justices and will be revised several times. Votes may shift during this process. Eventually, the Court will issue a ruling.

Presumably, there are procedural rules about how a four-to-four tie will be resolved. There are rules relating to the resignation of Justice O'Connor and the arrival of a new Justice when this occurs before an opinion is issued.

One Supreme Court scholar said that re-argument is also a possibility.

In Carter, the vote was 9-0 in favor of Shannon. The decision was authored by Justice O'Connor. Since there were few, if any revisions, the decision was issued quickly - in 34 days.

I doubt there will be a unanimous decision in Schaffer. I doubt that the written decision will be issued quickly.

Some Court observers have suggested that a decision may not be issued until next summer.

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