U.
S. Supreme
Court Hears
Oral Argument in Schaffer v. Weast
by Peter W. D. Wright, Esq.
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On
Wednesday, October 5, the U. S. Supreme Court heard oral arguments
in two cases.
Gonzales v. Oregon
In the first case, Gonzales v. Oregon, the Supreme Court dealt
with the emotionally charged issue of physician assisted suicide.
In
1997, Oregon enacted a law that allows physician-assisted suicide.
The state claimed that this falls within the state's prerogative to
regulate the practice of medicine. In 2001, former Attorney General
John D. Ashcroft issued a directive, threatening to punish any Oregon
doctor who prescribed controlled drugs to help a terminally ill patient
end his or her own life. Question: Can the federal government prevent
doctors from helping terminally ill patients end their lives?
Schaffer
v. Weast
In the second case, Schaffer
v. Weast, the Court heard oral arguments on the burden of
proof in special education cases. In a dispute between parents and
school officials, should schools be required to prove that the plans
they propose are adequate and appropriate?
Pete
Wright took notes of the questions asked by the Justices during the
oral argument in Schaffer
v. Weast. Chief Justice Roberts recused himself and did not
participate, leaving eight Justices to decide.
Some of these questions are verbatim; most synthesize the essence
of the question. At times, several Justices asked questions at once,
in a rapid-fire manner.
At
the end of these notes is a discussion of Pete Wright's observations
and impressions.
| Justice |
Questions
to the Parent/Child Attorney |
| O'Connor |
Congress
was silent about the burden of proof. Was there anything in the
legislative history that showed a discussion about burden of proof? |
| Scalia |
Are
Department of Defense schools governed by IDEA? |
| Scalia |
If
someone sues a DoD school, wouldn't burden of proof be on the
parent? |
| O'Connor |
What
if parents agreed on an IEP and then contest it, who should
have the burden of proof?
|
| O'Connor |
Should
a Court have to decide in each case who has the burden of proof? |
| Unknown |
It
is open to a state to adopt a general burden of proof? Have some
states adopted a burden of proof standard? |
| Ginsburg |
When
parents object to a school's IEP, should they have the burden
of going forward or the burden of persuasion? |
| O'Connor |
What
Supreme Court case do you rely on? |
| O'Connor |
What
burden of proof case? |
| Scalia |
Isn't
the purpose of the statute to provide relief to someone who has
been injured? |
| Scalia |
I
just don't understand why the school should have the burden of
proof. The Federal Tort Claims Act should be the guide. |
| Souter |
Isn't
it a fight about whether the IEP is good or bad? |
| Kennedy |
Parents
get much more initial information than most people get. Assume
that the school districts have the expertise, aren't they entitled
to a presumption of governmental regularity? |
| Breyer |
I've
never seen a case where someone challenging an agency does not
have the burden of proof. |
| Breyer |
And
what if the evidence is exactly in equipoise, I haven't seen that. |
| Ginsburg |
With
the burden of production or persuasion, isn't it that the usual
practice that the school district goes first? |
| Ginsburg |
Who
usually goes first? |
| Stevens |
Who
is going to pay for all of this? Don't many of the fights occur
after the placement has taken place? |
| .
. . |
Discussion
about economic harm to school v. educational harm to child if
erroneous decision is made. |
| Stevens |
If
the parents cannot pay for the private placement, is that the
harm if an erroneous decision is made? |
| Scalia |
No
statute pursues its purpose at all costs, especially if no harm
is done, it is not play money. |
| Breyer |
The
statute does not just cover the initial IEP, for example if a
hyperactive child behaves badly in class and the parents might
challenge the discipline, who should have the burden of proof? |
| Breyer |
A
question about Lascari, the NJ Supreme Court case and initial
IEP v. later IEP. |
|
Questions
to the School District Attorney |
| O'Connor |
Question
relating to parent's unilateral removal of child and seeking tuition
reimbursement. |
| Ginsburg |
Wasn't
the child already in a private school and parents wanted to place
child in public school and sought an IEP and one was proposed
by the LEA? |
| Scalia |
I
understand that sometimes the school district will be the complaining
party, when is that? |
| Ginsburg |
Do
you have any numbers regarding how many times parents have asked
for due process versus the school asking for due process, isn't
it overwhelmingly that the parents initiate hearings? |
| Ginsburg |
(An
earlier response by attorney was factually incorrect and she forced
attorney to concede the earlier inaccurate response.) |
| Breyer |
Shouldn't
we leave this issue to each state or perhaps the U. S. Department
of Education to promulgate rules regarding who has the burden
of proof? |
| O'Connor |
Is
there no state law on assignment of burden of proof on IEPs? |
| Scalia |
Most
cases are in federal court. Should it be up to the federal court
to determine each state's burden of proof? |
| Ginsburg |
Haven't
some states said that the burden of proof is on the parent? |
| Kennedy |
Why
not have a uniform federal rule? |
| Scalia |
We
have a very detailed statute and yet it is silent on the burden
of proof. Isn't this very unlikely? |
| Stevens |
You
gave 3 examples when school district may be the complaining party
and have burden of proof (parent refuses to consent to evaluation,
discipline issue, school disagrees with parental request for an
independent educational evaluation), but my question if parents
have a valid objection to an IEP, isn't the school in the best
position to tell me if the IEP is valid? |
| Stevens |
At
the due process hearing, who goes first? |
| Stevens |
Are
there any jurisdictions where the burden of proceeding first is
different from the burden of persuasion? |
| Breyer |
Why
shouldn't the law be such that it encourages the decision maker
to decide the burden? |
| Ginsburg |
In
a situation under Title 7, the claimant making the claim, that
person has the burden of proof. But then once the claim is valid,
doesn't the employer have the burden to establish the adequacy
of the plan? |
| Ginsburg |
Isn't
the question then about the remedy proposed by the employer, doesn't
the burden of proof shift to the employer about the proposed remedy.
|
| Scalia |
But
what if there is no violation of law, who has the burden of proof? |
| Kennedy |
What
if there is a violation, who has the burden? |
| Stevens |
Isn't
Congress dissatisfied by some of the school's decisions?
|
| Ginsburg |
Is
there any evidence that those states that have put the burden
of proof on school districts have incurred greater costs?
|
| |
Questions
to U. S. Government Attorney who filed amicus brief on behalf
of school district |
| Scalia |
Can
the state change the burden of proof? |
| O'Connor |
Some
states have assigned burden of proof to school districts. |
| Ginsburg |
Is
there any evidence of more litigation and increased costs with
states that have assigned burden of proof to school districts.
|
| Scalia |
This
is spending clause legislation and if the state goes beyond the
law, the interest of the local school district is often different
from the state. |
| O'Connor |
Do
we have to decide that? Maryland does not put the burden of proof
on the state or district. |
| Stevens |
In
most jurisdictions, does the state put the burden of proof on
the school? |
| Stevens |
In
the largest volume of hearings, is the burden on the school and
is there an explosion of litigation? |
| |
Rebuttal
Argument by Parent/Child Attorney |
| |
Rebuttal
lasted for three minutes. The questions focused on whether there
has been any evidence of increased costs to school districts where
the burden of proof is on school districts. There was also a discussion
of the global cost of due process litigation compared to number
of special education children and that the cost averages about
$22 per child and several thousand per case. |
Observations
and Impressions
In
my role as an observer, this oral argument was quite different from
my
experience when I argued on behalf of Shannon Carter on October
6, 1993.
During oral argument in Carter,
it was clear that the Justices were well-prepared and familiar with
the facts and issues of the case.
During
oral argument in Schaffer,
some Justices seemed confused about the facts of the case. Unlike
Carter,
there was no discussion about the rationale of the split rulings of
the lower circuits. There was no discussion about U. S. Supreme Court
case law regarding burden of proof when a statute is silent.
Several
questions seemed to explore how the Court might avoid issuing a ruling
on the case. The Court could defer to Congress or to the U. S. Department
of Education and suggest that IDEA needs to address this issue, or
perhaps each state can assign the burden of proof.
Several questions and responses suggested a remand of the case.
Schaffer
was argued after the Gonzales "right to life / assisted
suicide" case. The Gonzales case generated extensive publicity.
An Unsettled Court?
Over the past weeks, several events occurred that may have unsettled
the Justices.
Until
Justice O'Connor announced her resignation, there had been no changes
in the Court since Ruth Ginsburg came on board 12 years ago. Justice
O'Connor's announcement stunned many court watchers. The President
nominated John Roberts to succeed her. Chief Justice Rehnquist died.
Justice John Roberts became the new Chief Justice. On Monday, the
President nominated White House counsel Harriet Miers to the high
court.
After the Court heard oral argument in the emotionally charged assisted
suicide case, Chief
Justice Roberts recused himself from oral argument in Schaffer.
Following
the usual procedure, on Friday, October 7, 2005, eight Justices will
meet in a closed session to vote on the outcome. The decision about
who will draft the Opinion will be made at that time.
Some
Justices will be in the majority and the dissents will be in the minority.
After an opinion is drafted, it will be circulated among all the Justices
and will be revised several times. Votes may shift during this process.
Eventually, the Court will issue a ruling.
Presumably,
there are procedural rules about how a four-to-four tie will be resolved.
There are rules relating to the resignation of Justice O'Connor and
the arrival of a new Justice when this occurs before an opinion is
issued.
One
Supreme Court scholar said that re-argument is also a possibility.
In
Carter,
the vote was 9-0 in favor of Shannon. The decision was authored by
Justice O'Connor. Since there were few, if any revisions, the decision
was issued quickly - in 34 days.
I
doubt there will be a unanimous decision in Schaffer.
I doubt that the written decision will be issued quickly.
Some
Court observers have suggested that a decision may not be issued until
next summer.
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