This comes from Pete Wright of wrightslaw.com.
The US Supreme Court has agreed to hear an appeal of a Fourth Circuit case. The issue is who has the burden of proof in a spec ed due process hearing. Two of the judges in the earlier case said it was the side that requested the hearing. The third judge, who is considered by many to be very
conservative, said that the schools should have the burden of proof.
This is only the second appeal that the US Sup Ct has agreed to hear
since my 1993 Carter case. The outcome will have major ramifications on spec
ed cases, from this point forward.
The U.S. Supreme Court granted certiorari to hear Brian Schaffer’s
appeal of an adverse 4th Circuit ruling in favor of Montgomery County MD
Public Schools assigning the burden of proof to the party that initiates a
due process hearing.
The Fourth Circuit, in a 2-1 decision issued on July 29, 2004, 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, stated that: 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.
I respectfully dissent.
END
The question presented is simply which side has the burden of proof,
the party who initiates the hearing, or parents or schools.
The parents are represented by Richmond VA atty, William Hurd. His
Petition for a Writ of Certiorari is on our website at: http://www.wrightslaw.com/law/caselaw/05/ussupct.schaffer.petition.hurd.pdf
The Fourth Circuit’s ruling is also on our website in both pdf and
html versions.
They are located at:
http://www.wrightslaw.com/law/caselaw/04/4th.schaffer.weast.md.htm
http://www.wrightslaw.com/law/caselaw/04/4th.schaffer.weast.md.pdf
William Hurd is an experienced US Supreme Court litigator. This is his
third case before the Court. He has quite a track record. Given that the
pro-child dissent was issued by a Judge considered to be conservative and
“Scalia” like, we have lots of reason for optimism.
More information about William Hurd can be found at:
http://www.troutmansanders.com/att/bio.asp?id=611