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Supreme Court Hears Potomac Family's Case

Some parents dismayed at special education policies in Montgomery County.

The courtroom of the U.S. Supreme Court was packed Oct. 5, but not only with people who had come to hear about education law.

Dozens of reporters had come to hear oral arguments in Gonzales v. Oregon, dealing with the state’s assisted suicide law. Many spectators had come to see Chief Justice John Roberts, sitting for only his second day on the Supreme Court bench.

But those who had come to see Schaffer v. Weast — the special education case stemming from a more than seven-year-old dispute between a Potomac family and Montgomery County Public Schools — cared deeply about the case and the issues it addressed.

The petitioner, Jocelyn Schaffer, and the respondents, MCPS Superintendent Jerry Weast and the members of the Montgomery County Board of Education, sat in the courtroom during the hour-long oral arguments.

Many of the people who will be affected by the court’s decision waited outside. Parents wearing turquoise T-shirts held up signs supporting the Schaffers on the courthouse steps before and after the arguments. Many were members of M.C. Needs, a group of parents of children with disabilities in Montgomery County.

SCHAFFER V. WEAST presented the high court with a narrow but significant question about special education.

Under the 30-year-old Individuals with Disabilities Education Act (IDEA), public schools receiving federal funds must provide a “free, appropriate public education” for every child with disabilities.

Parents and school officials are equal parties in developing an individualized education plan (IEP) that fulfills that obligation, according to provisions of the law. And in the great majority of cases, the parties work together effectively to develop an IEP.

But what happens when there is a dispute?

In those cases, parents are entitled to call for a hearing, known as a due process hearing, before an impartial judge — in Maryland, a state-employed administrative law judge (ALJ) who is not an employee of the school system.

The question before the court: When there is a dispute regarding an individualized education plan, who bears the burden of proof? Is it up to the parents to prove the inadequacy of the plan or is it up to the school system to show that it meets the child’s needs?

THERE WAS NO QUESTION who bore the burden of proof before the justices of the Supreme Court Wednesday: attorney William Hurd, representing the Schaffers.

Hurd emphasized that the Individuals with Disabilities Education Act creates a “unique, equal partnership” between parents and school systems, a point he said refutes the traditional rule where the burden of proof lies on the party with the grievance.

“I’ve never seen a case where a party challenging a government action doesn’t have burden of proof. … Can you think of an instance?” Justice Stephen G. Breyer asked Hurd.

“There is no analogous case because there is no analogous statute … that we have found where a parent is deemed to be an equal partner with the government,” Hurd said.

Hurd argued that the burden of proof should lie on school systems because that arrangement would minimize the consequences on the child and family of an erroneous decision at an administrative hearing, and because it “best advances the purposes of Congress” in the Individuals with Disabilities Education Act. Few parents have the time or resources to hire educational experts and attorneys to support their case as the Schaffers, he said. School systems have enormous advantages at IEP hearings and shifting the burden so that the school system has to prove the adequacy of the plan will better fulfill Congress’ goals for the wider populace served by the law.

But several of the Justices were skeptical of Hurd’s arguments.

“No statute pursues its purpose at all costs,” Justice Antonin Scalia said, questioning the costs of taking away the assumption that school systems are acting in good faith.

Hurd did not explicitly disagree with that argument, but said that there is little evidence that school systems have greater costs where state law places the burden of proof on them.

“In baseball, there’s an old umpires’ rule that the tie goes to the runner,” Hurd said. “When the evidence is in equipoise, the tie should go to the child.”

GREGORY GARRE, counsel for Weast and the Board of Education, said that changing the burden of proof would have a much broader impact than simply resolving cases where the evidence is in equipoise because IEP hearings often boil down to a “battle of the experts.”

Changing the burden “would erode the trust and confidence that Congress placed in state and local education officials,” he said.

Justice Ruth Bader Ginsburg challenged Garre on several points, including arguments in the respondents’ brief suggesting that the Schaffers were not acting in good faith in their negotiations with MCPS and were merely trying to have the system pay for their child’s private education.

Garre said the facts of the Schaffer case did not bear on the larger question of burden of proof. The statute places the responsibility on the parents to plead their case, he said.

David B. Salmons, assistant to the Solicitor General, argued in support of MCPS for 10 minutes on behalf of the United States. Hurd had reserved time for a brief rebuttal at the end of the Salmons’ arguments.

Chief Justice John Roberts did not sit for the case. Roberts gave no reason for his recusal but he formerly worked in the Washington, D.C. law firm Hogan and Hartson, where Garre is a partner. Edward Turner Jr., a Supreme Court spokesman, said Roberts had no comment on the matter.

ONE POINT the opposing sides—and some of the justices—seemed to agree upon was that the burden of proof issue can be decided at the state level.

“States may and states have” adopted their own rule, Salmons said before the court, referring to the nine states that have either statutes or regulations specifying the burden of proof.

Justice John Paul Stevens replied, “I find it surprising and significant that those who have been free to pick the right rule have picked the rule that your opponent [has].”

Breyer commented, “If I were a member of Congress and never thought about the issue [before] … I might think it was a better idea to leave it up to each state.”

A Supreme Court decision affirming the Fourth Circuit decision that complainants have the burden of proof would leave open the possibility of state laws placing the burden on school systems. However, a group of states that filed a friend of the court brief supporting the Schaffers argued that the Supreme Court should codify that possibility.

Hurd said his side considered burden of proof to be a federal issue.

CASE HISTORY

Brian Schaffer, now a 21-year-old college student, was diagnosed as a young child with several learning disabilities affecting his ability to read, write and process auditory information.

Brian attended Green Acres School in Rockville through the seventh grade, when his teachers advised his parents Jocelyn and Martin Schaffer to seek a school better tailored to his special needs.

In 1998, the Schaffers turned to the special education resources of the Montgomery County Public Schools system. They met with school officials to develop a special education plan for Brian, known as an Individualized Education Plan, but parents and school officials didn’t agree on the nature of Brian’s disabilities or, consequently, the services that he needed.

Jocelyn and Martin Schaffer turned down proposed placements at Herbert Hoover Middle School and Robert Frost Middle School, saying that the classes Brian would be in were far too large for him, based on the recommendations of the private psychologist and audiologists they hired.

The dispute continued for several years. The Schaffers placed Brian at the McLean School in Potomac for three years before receiving an offer from MCPS they felt was appropriate—a special program at Walter Johnson High School, which Brian attended his junior and senior years.

They sought reimbursement from the school system for his tuition at McLean, triggering a convoluted series of decisions: three from the administrative law judge who oversaw the IEP hearings and multiple decisions at the United States District Court level.

Most recently, the United States Court of Appeals for the Fourth Circuit in Richmond ruled that the burden of proof lies on the parents, in a split 2-1 vote on Jan. 29, 2004. The Supreme Court agreed in February, 2005 to hear an appeal of the Fourth Circuit decision—the current Schaffer v. Weast.