LD Blog

In an e-mail message, my colleague and friend Joel Mittler of Long Island University (NY, US) reminded me

[Today] is the 30th anniversary of IDEA. Most of us are probably too young to recall life before IDEA (or perhaps too old to remember). With all its flaws and problems, perhaps we should take a moment and in our own way remind out colleagues, students, and others of what it means to have a law that guarantees an education to all children, no matter what their disability. I like to note that we had compulsory education laws in this country in the 1850s but it took another 100+ years to include children with disabilities. While we continue to fight among ourselves as well as with those in power, it’s also not a bad time to thank those that made it all possible. I’ll start with Fred Weintraub and Ed Martin. Thanks, guys. Who else deserves a good hug?

Joel

In “There has to be a a Better Way for Special Education Students,” Jennifer Roback Morse of townhall.com (Washington, DC, US) provides her opinion about the recent U.S. Supreme Court decision in Schaffer v. Weast.

School districts around the country breathed a sigh of relief last week when the Supreme Court ruled on an arcane dispute involving the federal government’s mandate for special education students. Under federal law, public schools are required to provide a “free, appropriate public education” to all students, regardless of disability. The dispute concerned which party, the school or the family, has the burden of proof in showing whether the plan is appropriate. Schools could see lots of dollars flying out their windows if parents could demand better services. But hidden in this case is a clue to a better solution. Since both sides are dissatisfied with the current system of satisfying the federal requirement to serve disabled students, there is room for a change that makes both parties better off.

Her analysis, based no so much on the technical aspect of the decsion and more on the issue of remedies, leads her to suggest something akin to vouchers. (If you are keeping score, this is the third follow-up on the decision I’ve seen. If readers—all two of you—have seen others, please pass ‘em along via the comments section for this or any of the previous entries.) Link to Ms. Morse’s commentary.

The Baltimore Sun published an editorial about the U.S. Supreme Court ruling on Schaffer v. Weast. Although most of the content recounts the case, the unidentified writer argues that the ruling actually places a burden on schools to avoid litigation.

It’s a fair reading of the law, but also a considerable hurdle for parents, particularly low-income parents. That makes it even more critical for school districts to work with parents to come up with appropriate plans for disabled students so that these hearings remain a relatively rare exception to the process, rather than the rule.

Link to the Sun’s editorial.

The United States Supreme Court ruled that whichever party brings suit under the Individuals with Disabilities Education Act (IDEA) is responsible for demonstrating that there was error in how the child’s special education was handled. The case arose because lower courts had split on whether the parents or the schools were responsible for proving their point; in law, the tie-breaking rule is that the plaintiff is usually responsible for proving that an action—an Individualized education Program (IEP)—is appropriate or inappropriate.

Representing the Court, Justice Sandra Day O’Connor wrote:

To ensure disabled children a “free appropriate public education,” 20 U.S.C. A. §1400(d)(1)(A), the Individuals with Disabilities Education Act (IDEA or Act) requires school districts to create an “individualized education program” (IEP) for each disabled child, §1414(d), and authorizes parents challenging their child’s IEP to request an “impartial due process hearing,” §1415(f), but does not specify which party bears the burden of persuasion at that hearing. After an IDEA hearing initiated by petitioners, the Administrative Law Judge held that they bore the burden of persuasion and ruled in favor of respondents. The District Court reversed, concluding that the burden of persuasion is on the school district. The Fourth Circuit reversed the District Court, concluding that petitioners had offered no persuasive reason to depart from the normal rule of allocating the burden to the party seeking relief.

Held: The burden of persuasion in an administrative hearing challenging an IEP is properly placed upon the party seeking relief, whether that is the disabled child or the school district.

The parents of Brian Shaffer sought relief from their local education agency (LEA; Weast was the superintendent) when a dispute about Brian’s Individualized Education Plan (IEP) arose. They challenged the IEP and that challenge took the course described in the excerpt. The case does not turn on the merits of the IEP, but on who has legal responsibility for proving the point.

Will this decision permit LEAs greater chances of promoting the IEPs they consider better? Will parents be less likely to seek relief? Or will it reduce the number of unncessary intrusions in educational processes by parents? I do not know, but I anticipate that many advocates with greater expertise than I will argue this decision from both points of view? Let the analysis begin!

Is it appropriate or ironic that this case was decided just about the same time that the U.S. Congress is considering a resolution lauding IDEA?

Links:

• Legal Information Institute syllabus
• Pete and Pam Wright’s Wrightslaw coverage
• My article when the case was argued earlier.