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The Honolulu Advertiser
Posted on: Sunday, July 24, 2005

Burden of proof yet an issue to be settled

By Mark Bennett


Brian Schaffer attended private school in Maryland through seventh grade. He struggled academically, was diagnosed with "attention deficit hyperactivity disorder" and was told that his private school could not meet his needs because it had no special-education program at all.

Brian's parents contacted their public school, and an Individualized Education Plan Team — including Brian's parents — designed an individualized plan for Brian, including 16 hours of special education and speech therapy per week.

Brian's parents said the class size was too big, so Montgomery County offered the Individualized Education Plan, or IED, at another school 10 minutes away where classes were smaller. Brian's parents rejected this offer also and enrolled Brian in the private McLean School.

The parents then appealed to a neutral hearing officer, claiming that under the federal Individuals With Disabilities Education Act, or IDEA, the individualized plan was inadequate and denied Brian a free appropriate public education and, thus, that Montgomery County had to pay Brian's private-school tuition. (The Web site for McLean School shows that eighth-grade tuition is $20,950).

An independent Maryland administrative law judge found that deference is owed to education professionals in the design of an IEP. The parents were therefore required to prove that the IEP was inadequate.

The judge initially found that the parents failed to meet that burden and thus did not order the school district to pay the private-school tuition. After a convoluted legal course, the federal appeals court in Maryland essentially upheld the initial decision.

The parents have now appealed to the U.S. Supreme Court. Hawai'i filed a brief supporting the school district, as did many others, including the federal government, the National Education Association, the Council of the Great City Schools (all major urban school districts in America), the American Association of School Administrators, and the National School Boards Association.

The legal issue in Schaffer is straightforward. IDEA requires states to provide a free appropriate public education to special-needs children. It requires states to provide for an appeal of an IEP to a neutral decisionmaker.

Either the parents or the school may appeal, but IDEA does not specify who has the burden of proof in such an appeal.

Allocating the burden of proof is an issue traditionally left to states to decide. In virtually every type of case imaginable, the party that initiates an appeal has the burden of proof.

In Schaffer, however, the parents argue that schools always have the burden, even when the parents appeal. The school district argues that under Maryland law, the party taking the appeal has the burden of proof, and that state law should control.

The Supreme Court has previously decided that under the "spending clause" of the Constitution, the Congress may condition the receipt of federal funds by the states on their undertaking and fulfilling certain tasks. The money the federal government provides is great, but so too are the burdens it imposes.

IDEA is one example of spending clause legislation; another is the No Child Left Behind Act, which imposes enormous fiscal burdens on states. Often the federal government does not provide nearly enough money to cover those obligations, and states are left on their own.

It is very important that no precedent be set that increases the fiscal burden on states without an explicit congressional mandate. The implications of a decision in favor of the parents could have far-reaching fiscal impacts on states like Hawai'i under many different federal statutes.

As the federal appeals court found in Schaffer, no such explicit congressional mandate exists with regard to who has the burden of proof in an IEP appeal. Indeed, the statute is entirely silent on the subject.

Moreover, the rule adopted by the Maryland court is consistent with the rule that applies in almost every other part of our legal system, including cases involving other extraordinarily important issues like discrimination based on race, gender or disability: The party who initiates an action or appeal has the obligation to demonstrate why he or she ought to win.

As the Washington Post said in a recent editorial on this case, it "seems logical to let parents bear the burden of proof."

The position that Hawai'i took in this case is consistent with basic notions of federalism. States should have the right to chart their own courses in deciding matters such as who has the burden of proof in administrative hearings, absent an explicit congressional mandate.

The argument that placing the burden of proof on the appealing party will deny disabled children needed services is a false one.

If the weight of the evidence is greater on either side, that side prevails, regardless of the burden of proof.

If, however, parents cannot show by even the slightest preponderance of the evidence that an IEP is deficient, that strongly suggests that the IEP does meet the child's needs.

Placing the burden of proof on schools in every case will lead to precious resources being expended on services of doubtful utility. Special-needs children are entitled to and deserve a free, appropriate education. So do all of Hawai'i's kids.

But if our public schools must pay $20,000 per year for private-school tuition in cases where public schools can provide an appropriate education, we will end up lacking the resources to provide an appropriate education to anyone.

The Maryland federal appeals court made the correct decision. I hope the Supreme Court does so as well.