Special Ed Advocate Newsletter, February 22, 2005 (Issue 299)

At Wrightslaw, our goals are to help you gain the information and skills you need navigate the challenging, changing world of special education.

Highlights: Breaking news - Supreme Court agrees to to hear burden of proof case; 4th Circuit issues new decision in ABA reimbursement case; update on Surviving Due Process: Stephen Jeffers v. School Board; Wrightslaw coming to NY, IN, MO & AZ; free pub - Guide to IDEA 2004; annual conference of the Council of Parent Attorneys & Advocates. Download this newsletter.

Quote of the Week: "Other circuits are split - and splintered in reasoning - on this question." (Weast v. Schaffer, 377 F.3d 449 (4th Cir. 2004)

Wrightslaw is ranked #1 in education law, special education law, and special education advocacy. (2004 Alexa rankings)

Today, February 22, 2005, the U. S. Supreme Court granted certiorari to hear Brian Schaffer's appeal of an adverse ruling from the U. S. Court of Appeals for the Fourth Circuit. This decision assigns the burden of proof to the party who initiates a special education due process hearing.

Split Among Circuits

In the decision, the U. S. Court of Appeals for the Fourth Circuit noted, "Other circuits are split - and splintered in reasoning - on this question. Three circuits assign the burden to the parents, and four (perhaps five) assign it to the school system."

2-1 Decision

In their 2-1 decision on July 29, 2004, the majority held that:

"In sum, the IDEA does not allocate the burden of proof, and we see no reason to depart from the general rule that a party initiating a proceeding bears that burden. Congress was aware that school systems might have an advantage in administrative proceedings brought by parents to challenge IEPs. To avoid this problem, Congress provided a number of procedural safeguards for parents, but assignment of the burden of proof to school systems was not one of them. Because Congress took care in specifying specific procedural protections necessary to implement the policy goals of the Act, we decline to go further, at least insofar as the burden of proof is concerned. Accordingly, we hold that parents who challenge an IEP have the burden of proof in the administrative hearing. We reverse the judgment of the district court and remand for further proceedings consistent with this opinion."

Judge Luttig, in his dissent, wrote:

"I fear that, in reaching the contrary conclusion, the majority has been unduly influenced by the fact that the parents of the disabled student in this case have proven to be knowledgeable about the educational resources available to their son and sophisticated (if yet unsuccessful) in their pursuit of these resources. If so, it is regrettable. These parents are not typical, and any choice regarding the burden of proof should not be made in the belief that they are. For the vast majority of parents whose children require the benefits and protections provided in the IDEA, the specialized language and technical educational analysis with which they must familiarize themselves as a consequence of their child's disability will likely be obscure, if not bewildering. By the same token, most of these parents will find the educational program proposed by the school district resistant to challenge: the school district will have better information about the resources available to it, as well as the benefit of its experience with other disabled children. With the full mix of parents in mind, I believe that the proper course is to assign the burden of proof in due process hearings to the school district."

In html: The decision in Weast v. Schaffer, 377 F.3d 449 (4th Cir. 2004) is available in html at:

Z.P. is a young child with autism. Two years ago, Z.P.'s parents rejected the school's proposed placement in a typical preschool special ed program and placed him in a private school that provides intensive one-on-one services to young children with autism. The parents requested tuition reimbursement from their school district.

The Individuals with Disabilities Education Act includes rules for resolving disputes and complaints. These rules include mediation, due process hearings, and appeals to state or federal court. (Wrightslaw: Special Education Law, page 71)

Due process hearings are usually formal, contested, adversarial trials. Special education cases are similar to medical malpractice cases, with battles of expert witnesses, and the emotions of bitterly contested divorce cases with child custody and equitable distribution issues.

Before you request a due process hearing, you should be familiar with the federal statute and regulations and your state special education statute and regulations. You should also read the Rules of Adverse Assumptions. (Chapter 21, Wrightslaw: From Emotions to Advocacy)

For an excellent overview, read Special Education Due Process Hearings by Sonja Kerr, Esq.

* Highly Qualified Teachers
* Funding
* Rights to Children Who Attend Private Schools
* Responsibilities of charter schools.
* New Requirements about medication
* Timelines for Evaluations, Eligibility & IEPs
* When Children Move - to another district, to another state
* Parental consent for evaluation or special ed services
* Participation in State Assessments
* Alternate assessments?
* IEPs & IEP Team members
* Procedural Safeguards
* Mediation & legally binding agreements
* Resolution sessions
* Qualifications for hearing officers
* Discipline & manifestation reviews

Guide to IDEA 2004: Frequently Asked Questions was published by the Committee on Education and the Workforce on February 16, 2005.

More Free Pubs

One obstacle in advocating for a child with a disability is finding the time to do research. We spend hours collecting information so you can spend your time learning, not searching.

When you visit our Free Pubs page, you can download free publications about dozens of topics - IEPs, special education, autism, transition, reading, children's mental health, harassment, high-stakes testing, retention and social promotion, zero tolerance, discipline, and more.

7. Annual Conference: Council of Parent Attorneys and Advocates in Atlanta (March 10-13, 2005)

The Council of Parent Attorneys and Advocates (COPAA), a national organization of parents of children with disabilities and their advocates and lawyers, will hold their annual conference in Atlanta on March 10-13, 2005.

The conference provides unique opportunities for training and networking with experienced, knowledgeable attorneys and advocates on special education issues. Participants will learn about recent cases, legislative changes, and tactics.

On Thursday and Friday, March 10-11, there will be four intensive hands-on skills trainings:

Track 1: Parents and Advocates Skills Training
Track 2: Due Process Hearings For Attorneys
Track 3: Federal Litigation For Attorneys
Track 4: Orton Gillingham Course

Download & Distribute Info l Conference at a Glance l Conference Info & Registration l Online Registration

Cost: Fees vary, depending on days attended and membership status. Tell them Pete & Pam sent you!

Join COPAA! Member Benefits Online Membership Application Mail-in Membership Application.

8. Subscription & Contact Info

The Special Ed Advocate is a free online newsletter about special education legal and advocacy issues, cases, and tactics and strategies. Subscribers receive "alerts" about new cases, events, and special offers on Wrightslaw books.