|This email was sent by Wrightslaw.com per your request. To ensure delivery, please add email@example.com to your address book.|
Alert - Supreme Court to Hear Oral Argument in Schaffer v. Weast on October 5!
U. S. Supreme Court announced that they will hear oral argument
v. Weast on Wednesday, October
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 schools 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?
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.
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.
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 1970s.
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.
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).
did not file an amicus brief in support of Montgomery County Public
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.
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 https://www.wrightslaw.com/news/05/schaffer.weast.htm
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.
(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
$10 Off Coupon
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.
Subscription & Contact Info
Special Ed Advocate is a free online newsletter about
special education legal and advocacy issues, cases, and tactics
and strategies. Newsletter subscribers also receive "alerts"
about new cases, events, and special offers on Wrightslaw
This newsletter was generated &*DATE;
This email was sent from the WRIGHTSLAW list to the email address: &*TO; To Unsubscribe