Why this issue is critical
The Supreme Court's Schaffer v. Weast decision harms7.1 million children with disabilities and their families. Placing the burden of proof on parents risks inviting school districts to ignore or undermine rights and deprive children of a free appropriate public education (FAPE).
Many parents have difficulty navigating the IDEA maze from identification and evaluation of their children through hearings and court actions. If and when they ask for a hearing, the burden of proof should be placed on school districts. This requires school districts to do nothing more than prove to an impartial officer that the IEP or placement they propose for a child meets the minimal standards of appropriateness imposed by the IDEA instead of requiring the parents to prove the negative, that the school district's proposal is not appropriate. Placing the burden of proof on the school district furthers the IDEA's stated purposes — ensuring that children receive the educational services required by law and that parents' rights are protected. 20 U.S.C. § 1400(d).
The fact is that very few parents even request due process hearings, and there are only 5 due process hearings per 10,000 special education students. See GAO Report 03-897 "Numbers of Formal Disputes are Generally Low and States are Using Mediation and Other Strategies to Resolve Conflicts” (2003). Indeed, a 2003 Department of Education study found that 94% of districts had no disputes go to a hearing. Only 0.3% of total spending on special education in 2000 was for mediation, due process hearings, and court cases. 150 CONGRESSIONAL RECORD S.5351 (May 12, 2004) (statement of Senator Kennedy).
Placing the burden of proof on the school district is also fair because school districts have greater resources than parents. The overwhelming advantages of school districts over parents are self-evident. IEP meetings are inherently intimidating for parents; school personnel, who control the process, often vastly outnumber parents. School districts employ and therefore rely on teachers, psychologists, and other employees in IEP meetings to develop IEPs and then, on these same people (and other paid experts) to testify as witnesses at hearings. Tax dollars pay for all these witnesses. Parents, on the other hand, are often unable to afford expert witnesses. In fact, many parents of children with disabilities live in poverty or difficult financial circumstances and are less educated than parents of children in the general population. (M. Wagner, C. Marder, J. Blackorby, & D. Cardoso, The Children We Serve: The Demographic Characteristics of Elementary and Middle School Students with Disabilities and Their Households (Sept. 2002), 23 -24, 28-29 available at http://www.seels.net/designdocs/SEELS_Children_We_Serve_Report.pdf(as visited November 29, 2005).
If the parents believe that the school district has failed to provide the free appropriate public education (FAPE) mandated by law, the only recourse is to seek to due process. At these hearings, school districts not only have their built-in expert witnesses, but also taxpayer-financed or insurance financed lawyers. The vast majority of parents are not represented by counsel. Parents are at a substantial disadvantage and placing the burden of proof on the school districts is important to simply keep the playing field level.
School districts also have free, unfettered access to all relevant information about a proposed placement. Parents do not and are often denied access to those programs in advance of hearings. When parents' experts are permitted to observe children in class, observations are limited. Placing the burden on parents risks denying children with disabilities the free appropriate public education to which they are entitled under the IDEA. Many parents are left to their own ingenuity to ensure enforcement of the IDEA's procedural safeguards. This is not sufficient for protecting the fundamental educational rights that a bipartisan Congress created 30 years ago for students with disabilities.
In allocating the burden to school districts, many courts have recognized the foregoing school district advantages. A majority of the appellate courts that have addressed this issue over the last 30 years have concluded that the burden of proof should be on the school district. Recognizing these same realities, several states have chosen to place the burden of proof on school districts by statute or regulation. The Supreme Court's decision in Weast further ensures that parents will find the process more intimidating and daunting. It is unfortunate that the Supreme Court overlooked the immense consequences for all families-in particular those families with limited resources.
On August 9, 2012, Delaware Governor Jack Markell signed legislation enacting Delaware’s own version of the IDEA Fairness Restoration Act. This will allow Delaware parents who are prevailing parties in due process to recover their costs for educational evaluations and expert witness fees. The legislation restores the status quo that was in effect before the U.S. Supreme Court changed the law on recovering these costs in Arlington v. Murphy, 548 U.S. 291 (2006).