By Jim Costello, Esq.
Jim Costello is an attorney and a member of the Board of Directors of the Down Syndrome Resource Center.

March/April 2006
Volume 24, Number 2

   Who should bear the burden of proof when parents challenge the appropriateness of their child’s individualized education plan (IEP) in a due process hearing under the Individuals with Disabilities Education Act (IDEA):  the parents or the school?  Although the IDEA itself does not explicitly allocate the burden of proof to either party, this issue strikes at the very core of the IDEA’s mandate that public schools provide a free and appropriate public education to all children with disabilities.  The results of a due process hearing could change depending solely on whether the parents have the burden of proving the inadequacy of the IEP or the school has the burden of proving the IEP was appropriate.  Unfortunately, the Supreme Court of the United States recently decided in Schaffer v Weast (546 US     [2005]) that the burden of proof lies with the party initiating the due process hearing, which, of course, is most often the parents of children with disabilities.  Specifically, the Court held that the “burden of persuasion” (which party loses where the evidence is closely balanced) rests with the party initiating the due process hearing, leaving open the question whether that party also bears the “burden of production” (the obligation of coming forward with the evidence at different points in the proceeding).     

   The facts of Schaffer are straightforward enough.  Jocelyn and Martin Schaffer rejected an IEP proposed by the Montgomery County Public School System for their son, Brian, a seventh-grader diagnosed with Attention Deficit Hyperactivity Disorder and other learning disabilities, opting instead to place Brian into a private special education school offering small classes tailored for students with learning and language disabilities.  Despite private evaluations recommending that Brian attend a “small, self-contained, full-day special education program,” the IEP proposed by the school district offered Brian 15.3 hours of special education and forty-five minutes of speech therapy each week in regular public school classes using an “inclusion” model.  Claiming the proposed IEP failed to provide Brian with a free and appropriate public education, the Schaffers filed for a due process hearing, seeking reimbursement from the public school system for the cost of tuition and expenses at the private school.      

   At the hearing each side presented expert testimony supporting their position on the merits and argued that the other had the burden of persuasion.  Assigning the burden of persuasion to the Schaffers, the Administrative Law Judge (ALJ) determined that they did not meet their burden of showing the inadequacy of the IEP.  The Schaffers appealed to the federal district court, which held that the burden of persuasion should have been placed on the school district and remanded  the case to the ALJ for reconsideration in light of the shifted burden of persuasion.  Without any additional evidence offered, the same ALJ concluded that the school district failed to prove the appropriateness of the IEP and ordered it to reimburse the Schaffers for half of the tuition they expended for the 1998-99 school year.  After further proceedings, including another appeal to the district court, the case made its way to the Fourth Circuit Court of Appeals, which reversed, holding that “parents who challenge an IEP have the burden of proof in the administrative hearing.”    

   In a 5-2 decision, the Supreme Court, in a decision written by Justice Sandra Day O’Connor, affirmed, holding that the burden of persuasion lies with the party seeking due process relief.  Rejecting several persuasive arguments advanced by the Schaffers and various parties that filed briefs as “friends of the Court,” the Court concluded that Congress did not intend to place the burden of persuasion on school districts where parents challenge an IEP in a due process hearing.  The Court, however, expressly left open the issue whether the States may, by law or regulation, place the burden on school districts in any event.       

   Justices Ginsberg and Breyer issued separate dissenting opinions, with Justice Breyer concluding that it should be left to each State to determine which party should bear the burden of persuasion in that State.  In a well-reasoned dissent, Justice Ginsburg determined that “‘policy considerations, convenience, and fairness call for assigning the burden of proof to school districts.”  Recognizing that, unlike other civil rights and social welfare legislation, the IDEA places an affirmative obligation on school districts to offer every child with a disability an education individualized to address each child’s special needs, Justice Ginsburg concluded that the “proponent of the IEP . . . is properly called upon to demonstrate its adequacy.”  As Justice Ginsburg aptly explained, school districts are in a far better position to demonstrate that they have fulfilled their statutory mandate inasmuch as they are familiar with the range of educational facilities in the particular area and have experience addressing the educational needs of similarly situated children with disabilities.  Moreover, as Justice Ginsburg recognized, placing the burden of persuasion on school districts would not saddle them with inordinate costs and would encourage them to make a genuine effort to craft appropriate IEPs in the first instance.  It is truly unfortunate for children with disabilities that the majority of the Supreme Court also did not see it that way.         

   So what are the implications of Schaffer in New York?  Before Schaffer, by case law, the burden of persuasion and burden of production both fell on the school districts in all due process proceedings.  Schaffer changes that with respect to the burden of persuasion.  Specifically, because this State does not have a statute or regulation placing the burden of persuasion on school districts, Schaffer shifts the burden of persuasion onto the party initiating a due process hearing.  Thus, in December 2005, the State Education Department issued a memorandum directing Impartial Hearing Officers (IHOs) to place the “burden of proof on the moving party in all hearings commenced on or after November 14, 2005.”   (see www.counsel.nysed.gov/memos/schaffer.html     

   The question whether the school districts still have the burden of production — the burden of producing evidence at the outset of the hearing — has not yet been resolved.  Moreover, Schaffer may not be the last word on the burden of persuasion in New York.  As in several other states, advocacy efforts are currently underway in New York to propose legislation shifting the burden of persuasion back where it belongs — on the school districts.