NSBA Amicus Brief - Schaffer v. Vance (4th Cir.)

INTEREST OF AMICI

This brief is filed with the consent of both parties. Letters attesting to their consent have been submitted to this Court.

The Maryland Association of Boards of Education (MABE) is a private, not-for-profit organization that represents all of the state's 24 local boards of education and the State Board of Education. MABE advocates for the concerns of boards of education before state and federal courts and agencies, the Maryland General Assembly, and the United States Congress.

The National School Boards Association (NSBA) is a not-for-profit federation of this nation’s 49 state school board associations, the Hawaii State Board of Education, and the boards of education of the District of Columbia, Guam, and the U.S. Virgin Islands. Founded in 1940, NSBA represents the nation’s 95,000 school board members, who, in turn, govern 14,772 local school districts that serve more than 46.5 million public school students--approximately 90 percent of the elementary and secondary students in the nation. NSBA has had a long involvement in the proper implementation of special education laws and regulations.

ISSUE PRESENTED FOR REVIEW

48726. Whether the District Court erred in determining that public school systems carry the burden of proving that their initial offer of services was appropriate even though it is the parent who disagrees and is bringing the action under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq. (2000).

STATEMENT OF THE CASE

Amici incorporate by reference the statement of the case contained in Appellant’s brief.

STATEMENT OF FACTS

Brian Schaffer is a disabled child as defined under IDEA. From pre-kindergarten through the 1997-98 school year, Brian attended at his parents’ expense a private, non-special education school, where he completed seventh grade. During the 1997-98 school year, his parents requested that the Montgomery County Public Schools ("school system") assess Brian to determine whether he would be eligible for special education services.

After reviewing outside evaluations and conducting its own assessment, the school district found that the student was eligible for special services under IDEA.

The initial individualized educational plan (IEP) offered the student placement in a public middle school.

The parents rejected the proposed placement on the ground that the IEP was not reasonably calculated to provide Brian with an appropriate educational benefit. They then requested a due process hearing. An administrative law judge ("ALJ") concluded that the district had offered the student a free appropriate public education and denied the claim for reimbursement of tuition and costs of the student’s private school placement. In the ALJ’s opinion, determining which party had the burden of proof was crucial to the outcome of this case because the evidence amounted to a virtually even battle of experts, with both parties' witnesses presenting strong, credible testimony. The ALJ ruled that where the initial IEP is being challenged, the parents have the burden of proving that the IEP fails to provide a free appropriate public education.

The parents filed suit in federal district court. They argued that the ALJ erred in assigning the burden of proof to them. Noting that the Fourth Circuit has not yet considered the issue, the district court held that the school district has the burden of proof where the parents are challenging the initial IEP. In reaching its decision, the district court pointed to the school district's obligation under the IDEA to provide a free appropriate public education to eligible students. The court’s rationale relied heavily on the proposition that an initial IEP to which parents do not agree is a unilateral proposal made by a school district which it should have the burden to justify because it has better access to pertinent information, educational expertise and knowledge of IDEA procedures.

SUMMARY OF ARGUMENT

When a parent challenges the services offered by the school system under the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq. (2000), the parents should have the burden of proof at the administrative hearing. Thus, the District Court erred in ruling that school systems should carry the burden of proof at the outset.

Although IDEA provides numerous due process protections for parents, the assignment of the burden of proof to the school system is not one of them. Absent statutory authority, administrative law judges should follow the generally accepted rule requiring the party bringing a claim to bear the burden of proof.

The District Court, citing "fairness" and the school system’s "experience", required the burden of proof to be shifted from the parents to the school system in parental challenges to initial Individualized Education Plans (IEPs). However, those two reasons fail in light of numerous and sufficient protections already provided to parents.

Placing the burden of proof on the school system will not result in a more evenhanded process for deciding disputes under IDEA. Just the opposite is true– it would unduly burden schools throughout the Fourth Circuit and, if mimicked, potentially throughout the nation.

ARGUMENT

I. THE DISTRICT COURT INCORRECTLY ASSIGNED THE BURDEN OF PROOF TO THE SCHOOL SYSTEM.

In administrative proceedings generally, the burden of proof should be on the party bringing the action. See, e.g., International Minerals & Chemical Corp. v. New Mexico Public Service Commission, 466 P.2d 557, 560 (N.M. 1970) (relying on "customary common law rule" in administrative proceedings "that the moving party has the burden of proof"); John W. Strong, McCormick on Evidence, § 357 (4^th Ed. 1992). Exceptions to this general rule should be made only when there is a specific provision in law, or there are sound public policy reasons for doing so. Neither is true in this case.

A. IDEA provides no basis for placing the burden of proof on school systems when parents are the moving party.

IDEA is silent as to the burden of proof in special education due process hearings. One can deduce, therefore, that Congress saw no reason to use its

legislative power to alter the general rule. Instead, Congress used two offsetting provisions to ensure parity and fairness in the process. First, Congress enacted IDEA with language that gives, in the appeal process, great deference to local education officials in developing proper IEPs. Board of Education of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206 (1982)(courts should not "substitute their own notions of sound education policy for those of the school authorities that they review"). In Alamo Heights Indep. Sch. Dist. v. State Bd. of Educ., 790 F.2d 1153, 1158 (5^th Cir. 1986) [quoting Tatro v. Texas, 703 F.2d 823, 830 (5^th Cir. 1983), aff’d 486 U.S. 883 (1984)], the court stated:

In deference to this statutory scheme and the reliance it places on the expertise of local education authorities . . . [IDEA] creates a "presumption in favor of the education placement established by [a student’s IEP]," and "the party attacking its terms should bear the burden of showing why the educational setting established by the [IEP] is not appropriate."

See, also, Johnson v. Independent Sch. Dist. No. 4 of Bixby, Tulsa County, Oklahoma, 921 F.2d 1022, 1026 (10^th Cir. 1990), cert. denied, 500 U.S. 905 (1991).

Second, Congress enacted IDEA with a host of procedural protections for parents. The IDEA, in fact, requires school systems to explain to parents these rights in clear and understandable language. 20 U.S.C. § 1415(d)(2) (2000). Chief among these rights is the right to be included in the decision-making process. 20 U.S.C. § 1413(f) (2000). Parents must be given the opportunity to serve on the IEP team that develops a student’s IEP. 20 U.S.C. § 1414(d)(1)(B)(i) (2000). Parents have the right to disagree with school system’s evaluations and seek an outside, independent evaluation at the school system’s expense. 20 U.S.C. § 1415(b)(1) (2000), 34 C.F.R. § 300.502(b)(2)(ii) (2000). Importantly, IDEA allows parents to use advocates and attorneys in challenges to services offered. 20 U.S.C. § 1415(g)(1) (2000).

Noticeably, placing the burden of proof on the school system in due process hearings is not one of those protections specified in IDEA.

B. There are no sound public policy reasons for placing the burden of proof in administrative proceedings on school systems when parents are the moving party.

There are no sound public policy reasons for placing the burden of proof on the defending party in IDEA cases. The District Court noted that generally the party seeking the change should have the burden of proof in IDEA cases, but that "experience and fairness" dictate that the school system should have the burden in challenges to initial IEPs. Opinion at 13. Yet, the District Court fails to satisfactorily justify these public policy reasons, and in fact public policy is not served by shifting this burden to the school system. Absent explicit authority or a

compelling policy rationale, this decision unnecessarily alters the careful balance struck by Congress and gives no legal basis for this judicial intervention.

1. Protections in the statute prevent inequities between parents and school systems.

Congress was well aware of inequity issues as IDEA was developed and enacted. Opinion at 11n, citing 20 U.S.C. § 1400(b)(7)-(10) (2000). Congress chose to allow parents to seek attorneys’ fees under IDEA as a way of addressing this very issue of inequity. 20 U.S.C. § 1415(i)(3) (2000). If a parent wants to challenge offered services, that parent may seek outside representation, and the school system may have to pay the attorneys’ fees, depending on the outcome of the challenge. Federal law also requires school systems to pay for independent evaluations, 20 U.S.C. § 1415(b)(1) (2000), 34 C.F.R. § 300.502(b)(2)(ii) (2000), and for private school tuition if parents place their child there and are later found to be justified in challenging public school judgment about the educational placement of their child. 20 U.S.C. § 1412(a)(10)(C). The statute also provides funding for parent training and information centers and community parent resource centers which provide a range of services to parents, including under-served parents, low-income parents, parents of children with limited English proficiency and parents with disabilities themselves to help them participate effectively in their children's education. These centers offer parents assistance on how to communicate effectively with special education personnel, participate in decisionmaking processes and the development of their children's IEPs, and obtain information about the range of options, programs, services and resources available. 20 U.S.C. §§ 1482, 1483 (2000). These statutory protections already address the concern of "fairness" raised by the District Court. There is no need for judicial creation of further protections.

The District Court stated that it would not be "fair" to require parents who may not be able to afford counsel to meet any sort of burden of proof to challenge the services offered by the school system in an initial IEP. Opinion at 11n. The District Court failed to explain how this fairness issue is present when the hearing involves a challenge to the initial IEP, but somehow dissipates at hearings regarding an already established IEP. As the District Court noted, under settled law in this circuit, in cases where a change is being sought to an already approved IEP, the initiating party bears the burden of proof. Opinion at 13. Whether that party has the financial means to obtain legal services does not change this burden, nor should that be a consideration at the initial IEP stage.

To hold that "fairness" justifies placing the burden of proof on the school system fails to recognize the existing statutory procedures that both protect parents and often give advantages to parents that the school system does not have. After all, IDEA is structured as an affirmative statute that confers specific rights upon parents and children and specific obligations on school districts. It would be ironic indeed to place one more non-statutory disadvantage upon school districts and yet another arrow in the quiver of the already well-armed and well-protected parents. Many parents are zealous and sophisticated advocates for their children with disabilities and are well aware of how to use these arrows to obtain the educational placement they deem best. In addition, they often seek the assistance of competent and experienced special education attorneys to lead their efforts.

If the burden of proof in the appeal process were to be placed on the school system, parents may in fact find it to their advantage not to cooperate with the school system and instead force the school system to defend the entire IEP in the administrative appeal process. School systems burdened in an appeal with the obligation to prove the appropriateness of all services are easily subject to attacks by parents who may actually target just one aspect of the IEP in response. In addition, parents who are looking for any excuse to disagree with offered services or those who are wedded to a particular placement, such as those seeking private

school tuition, would be at an advantage as they force the school system to defend all aspects of an offered IEP. Thus, it would be fair and proper to require that the parents have the burden of proof as to the inappropriateness of the offered services as an additional incentive for their participation.

School systems, on the other hand, need no additional incentives to create a proper IEP aimed at meeting the individual goals of the student, because they are already required by law to do so. 20 U.S.C. § 1414(d)(2)(A) (2000). Under IDEA, there are clear penalties for school systems that violate the mandates of the statute.

20 U.S.C. § 1416(a) (2000). Districts cannot simply ignore IDEA and fail to follow the procedures of the IEP process. Where the school system has complied with its statutory obligations to identify, evaluate, and propose an individualized educational program for a child with disabilities, through a team approach that encourages parental participation, its educational judgment is entitled to a presumption of appropriateness that parents should have the burden of disproving.

2. The "experience" of the school system may be equaled by that of the parents, providing no justification for placing the burden of proof on the schools.

The District Court invokes the presumed inability of parents to match the educational expertise of a school system as its justification for the shift of the burden of proof. The District Court cited language from Lascari v. Board of Educ. of Ramapo Indian Hills Regional High Sch. Dist., 560 A.2d 1180 (N.J. 1989), which stated that it would be easier for the school system to defend its offered services than it would be for parents to prove such services are inappropriate. Opinion at 9. However, the District Court failed to recognize that parents, as full participants in the development of the IEP, are allowed to have access to all the records, materials, assessments, and other information the school system uses to develop IEPs. 20 U.S.C. § 1415(b)(1) (2000). In fact, parents likely know more about the student than the school system does, especially in constructing the first-ever IEP. Often, as here, students have never attended school in the district prior to the development of the initial IEP. Although in theory parents may lack the educational "experience" to formulate an appropriate instructional plan for their child, parents do have the personal "experience" of the child’s developmental history and response to different learning environments and techniques. Plus, parents have all of the same information and educational records that the school system is obliged to share with them. This complete knowledge enables parents to have an equal opportunity to determine what is appropriate for their child. Assigning the burden of proof to parents is de minimis. It would simply mean that they must offer sufficient evidence to show by a preponderance that particular aspects of the school system’s proposal are educationally inappropriate for their child. It remains the school system’s obligation under the law to provide a free, appropriate public education. 20 U.S.C. § 1412(a)(1) (2000). Placing the burden of proof on the parents, where it belongs, does not require parents to offer a substitute plan that would require special educational expertise.

Additionally, parents may have records or other information (including outside evaluations) that they have never provided to the school system. IDEA mandates that the school system share all relevant materials with the parents, 20 U.S.C. § 1415(b)(1) (2000). However, nothing in IDEA requires parents to reveal all information to the school system. Indeed, diligent parents could acquire their own assessments and would have no obligation to share these findings with the district. Requiring the school system to have the burden of proof in cases where the parents may not have disclosed all relevant information or may not have been cooperative in the development of an initial IEP will not ensure that a student who is in need of special education services actually receives an appropriate program.

Therefore, both "experience" and "fairness" fail as public policy reasons to place the burden of proof on anyone but the party challenging an IEP. Parents should have the burden of proof when they challenge an IEP, whether it is an initial IEP or an existing IEP.

3. Placing the burden of proof on school systems will not ensure better results for students.

IDEA requires that all public school students with disabilities under the Act be provided with an individualized education plan developed specifically to address their individual needs and updated annually. 20 U.S.C. § 1412(a)(4) (2000), 20 U.S.C. § 1414(d)(4)(A)(i) (2000). Nationally, school systems have developed and implemented millions of IEPs. IDEA provides a process for challenging services offered in IEPs, and under these provisions school systems face numerous individual challenges each year. While many of those challenges have merit, many others do not. Procedurally, it makes more sense to place the burden of proof on the individual parents bringing a challenge than it would to require the school systems to prove the appropriateness of all services offered.

Certainly, such a rule would aid due process hearing judges in deciding these cases. If the party bringing the challenge always has the burden of proof, then the trier of fact would be able to establish a consistent and fair process for hearing and deciding these challenges.

Thus, the parents should have the burden of proof when challenging the services offered by a school system through a properly developed IEP.

CONCLUSION

For the foregoing reasons, the decision of the District Court should be overturned, and the decision of the Administrative Law Judge upheld.

Respectfully submitted,

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ERIC B. SCHWARTZ,
JULIE K. UNDERWOOD