Issue - 299
Wrightslaw, our goals are to help you gain the information and skills
you need navigate the challenging, changing world of special education.
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
Quote of the Week: "Other
circuits are split - and splintered in reasoning - on this question."
v. Schaffer, 377 F.3d 449 (4th Cir. 2004)
is ranked #1 in education
education law, and special
education advocacy. (2004 Alexa rankings)
Breaking News! U.S. Supreme Court Agrees to Hear Burden
of Proof Case!
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
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 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."
html: The decision in Weast
v. Schaffer, 377 F.3d 449 (4th Cir. 2004) is available in html at:
The decision in Weast
v. Schaffer is also available in pdf
Petition for Certiorari
Brian Schaffer's Petition for Certiorari, prepared by his attorney
William Hurd, is available at:
Court Agrees to Hear Burden of Proof Case!
More Special Education News
Fourth Circuit Issues New Decision in ABA Reimbursement
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.
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
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: https://www.wrightslaw.com/law/caselaw/05/4th.henrico.va.zp.htm
In PDF: Download School
Bd of Henrico County VA v. Z.P. from:
/ ABA Caselaw
Update on Surviving Due Process: Stephen Jeffers v. School
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.
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
Due Process: Stephen Jeffers v. School Board
Special Education Due Process Hearings
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)
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.
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
From Emotions to Advocacy)
For an excellent overview, read Special
Education Due Process Hearings by Sonja Kerr, Esq.
The following articles by school board attorney Kathleen Mehfoud and parent
attorney Pete Wright will show you how attorneys frame their cases:
The Special Education Child: A Manual for the Attorney & Advocate
by Peter W.D. Wright, Esq.
Education Law: The School Board Perspective by Kathleen S. Mehfoud, Esq.
about due process.
Coming Soon! Wrightslaw Programs
in NY, Indiana, Missouri, Arizona
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.
Island, NY: March 4-5, 2005 (Mini Boot Camp)
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) -
AZ: April 1-2, 2005 (Boot Camp)
participants will receive two books, Wrightslaw:
Special Education Law and Wrightslaw:
From Emotions to Advocacy, (Value: $59.90), and the new publication,
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
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;
* 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
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.
Conference: Council of Parent Attorneys and Advocates in Atlanta (March
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.
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.
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
& Distribute Info l Conference
at a Glance l Conference
Info & Registration l Online
Fees vary, depending on days attended and membership status. Tell them
Pete & Pam sent you!
Subscription & Contact Info
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.
and Pam Wright
Wrightslaw & The Special Ed Advocate
P. O. Box 1008
Deltaville, VA 23043