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The Special Ed Advocate Newsletter
July 22, 2005

ISSN: 1538-3202

In this Issue

Who is Responsible for Proving that IEP is Appropriate?

Split Among Circuits

Rule of Law

Procedural Safeguards in IDEA

Amicus Briefs: States Take Sides

Impact of Case

Special Pre-Pub Offer Ends at Midnight on Friday, July 22

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Alert - Supreme Court to Hear Oral Argument in Schaffer v. Weast on October 5!

The U. S. Supreme Court announced that they will hear oral argument in Schaffer v. Weast on Wednesday, October 5, 2005.

Brian Schaffer's case began in 1997, when his mother requested that Montgomery County Public Schools provide her son with an appropriate special education program for the 1998-1999 school year. Brian's parents did not agree that the school's proposed program was appropriate. Brian has graduated from high school. He is now 21 and attends college.

Jerry Weast is the superintendent of Montgomery County Public Schools.

Attorney William Hurd will represent Brian Schaffer in oral argument before the Supreme Court.

The high court’s decision in Schaffer is of enormous importance and may shift the balance of power in IEP meetings and due process hearings.

Download this Alert.

Who is Responsible for Proving that an IEP is Appropriate?

The Individuals with Disabilities Education Act is silent on who has the burden of proof in special education litigation. If a parent disputes an IEP, case law is clear that the parent must “place in issue the appropriateness of the IEP.”

The issue in Schaffer is whether, in a due process hearing about a disputed IEP, the parent must prove that the school’s IEP is not appropriate or the school district must prove that their IEP is appropriate.

Should the party that attacks the IEP have the burden of proving that the IEP is not appropriate? Or, should the party that prepared the IEP, and has greater expertise and resources, have the burden of proving that the IEP is appropriate?

Split Among Circuits

Five Circuits assigned the burden of proof to the parents ("Tatro / Alamo Heights rule"). Five Circuits assigned the burden to the school ("Lascari / Oberti rule").

In 2004, the Fourth Circuit held that “parents who challenge an IEP . . . have the burden of proof in the administrative hearing.” In their decision, the Court noted that the “ . . . circuits are split - and splintered in reasoning - on this question.”

The Supreme Court will resolve this split among circuits.

Rule of Law

The Individuals with Disabilities Education Act does not assign burden of proof to either party. The traditional rule of law is that if a statute is silent as to which party has the burden of proof, the complainant usually has the burden of proof.

Historically, the U. S. Supreme Court has resolved burden of proof cases by relying on the policy and history of the statute and concerns of fundamental fairness. In making decisions, they have also assessed which party is likely to have access to information that explains their actions to arrive at a result that is “right” and “just.”

Procedural Safeguards in IDEA

The procedural safeguards in the Education of All Handicapped Children Act of 1975 (Public Law 94-142) and carried over in Section 1415 of the Individuals with Disabilities Education Act of 2004 (IDEA 2004) were taken, almost verbatim, from one of two landmark cases that triggered enactment of the IDEA in the 1970’s.

In Mills v. Washington, D.C. Public Schools, Judge Waddy provided a detailed list of procedural safeguards, including written notice, and found that in disputes between parents and school districts, the burden of proof shall be on the school district.

Amicus Briefs: States Take Sides

Eight states - Connecticut, Illinois, Kansas, Minnesota, Nevada, Rhode Island, Washington, and Wisconsin - joined with Virginia in an amicus brief supporting the parents.

Three states and one territory - Hawaii, Oklahoma, Alaska and Guam - filed amicus briefs in support of the school district ("Weast" is Superintendent of Montgomery County Public Schools).

Maryland did not file an amicus brief in support of Montgomery County Public Schools.

More than 20 disability organizations filed amicus briefs in support of Brian Schaffer. (Amicus briefs)

The Bush administration reversed their previous position (in support of parents), and now argues that the burden of proof should be on the parents who challenge the IEP.

Impact of Case

Depending on how the U. S. Supreme Court resolves this issue, IEP meetings and due process hearings are likely to change dramatically. For more information about this case, including pleadings and amicus briefs, go to the Schaffer v. Weast page at

Note: This page is updated often as new information is available.

Special Offer on Wrightslaw: IDEA 2004 Ends at Midnight, Friday, July 22

The Individuals with Disabilities Education Act of 2004 went into effect on July 1. During the reauthorization process, Congress made significant changes to the law. If you are involved in special education - as a parent, teacher, advocate or attorney - you need to be aware of these changes and how they will affect you, your child, or your work.

Wrightslaw: IDEA 2004 by Peter Wright, Esq. and Pamela Darr Wright includes the full text of Parts A and B of the Individuals with Disabilities Education Improvement Act of 2004 (IDEA 2004) with analysis, commentary, cross-references, and resources.

Wrightslaw: IDEA 2004 is designed to meet the needs of parents, teachers, advocates, attorneys, service providers, psychologists, administrators, professors, hearing officers, and employees of district and state departments of education. Wrightslaw: IDEA 2004 is available as an e-book, a print book, or both.

E-book (162 pages, 8 1/2" x 11", $9.95). Available now. When you purchase the e-book (PDF format), you can download it within minutes. You can read it on your computer or print it out on your printer. There is no shipping or sales tax for e-books.

Print publication
(168 pages, 8 1/2" x 11", perfect bound, $14.95 plus shipping). Ship date: 2nd week of August.

E-book & Print Combo: Get
Wrightslaw: IDEA 2004 as an e-book immediately and the print edition in August ($19.95)

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People who order the E-book & Print Combo ($19.95) before midnight on Friday, July 22 will receive a "$10 Off Coupon" that may be applied to the purchase of Wrightslaw: Special Education Law, 2nd Edition. (To be published after the final special education regulations are published in Winter 2005/6)

Learn more about the prepublication offer.

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P. O. Box 1008
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