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Tomorrow’s Argument in Schaffer v. Weast

Note: This post was authored by Eric Tuttle, a third-year law student at Stanford.

The question presented by Schaffer v. Weast, which will be the second case argued tomorrow, is a simple one to pose: Under the Individuals with Disabilities Education Act (“IDEA”), who bears the burden of proof in an administrative “due process hearing” — the parents or the school? Congress was silent on this issue, and the circuits have split in developing an answer.

William Hurd, an attorney in the Richmond office of Troutman Sanders, will be arguing on behalf of the petitioners. Hogan & Hartson’s Gregory Garre (soon to be the Deputy Solicitor General) and Assistant to the Solicitor General David B. Salmons will argue on behalf of the school district and related entities, which are the respondents in the case.

Under the IDEA, schools accept federal education funding on the condition that they comply with numerous requirements meant to ensure that disabled children receive a free and appropriate public education. Public school districts must design and implement an Individualized Education Program (“IEP”) for every disabled child within the district who desires a public education. Parents are supposed to work with the school in developing the IEP, and if the two parties cannot reach an agreement, either may request an administrative hearing (called a “due process hearing”). Either party may seek review of the administrative determination by bringing suit in federal or state court.

In this case, Brian Schaffer attended private school until seventh grade, at which point his parents were told to find a school better equipped to handle Brian’s disabilities (Brian’s disabilities are a matter of dispute, but include ADHD and some type of speech disability). Brian’s parents contacted their public school district, which offered Brian an IEP. The parents found the IEP unsatisfactory, enrolled Brian in another private school, and sought a due process hearing to obtain a more appropriate IEP and also reimbursement of his interim private school tuition. At the hearing, the administrative law judge (“ALJ”) found that the outcome turned on the extent of Brian’s disability, a matter on which both sides had presented conflicting expert testimony. Finding the evidence to be in equipoise, and the burden of proof to be critical, the ALJ held that the burden lies with the parents to show that, with the proposed IEP, the school district failed in its obligation to provide the student with an appropriate education suitable to his or her individual needs; the ALJ then ruled in favor of the school. The parents sought review in federal district court, which held that the burden of proof instead lies with the school to demonstrate that the proposed IEP would provide an education suitable to a student’s individual needs and remanded to the ALJ. The ALJ then ruled for the parents and awarded damages to cover some of the cost of Brian’s private education. On review, the district court accepted the ALJ’s main findings.

On appeal, a divided panel of the Fourth Circuit reversed. The court began by stating the rule that the burden of proof “normally” lies with the party initiating the proceeding and seeking relief, although it admitted that other factors such as policy considerations and fairness may push for a different allocation. It then disposed of each of the parents’ arguments for moving from the default rule. First, although the IDEA is a remedial civil rights statute placing obligations on schools, other remedial civil rights statutes such as Title VII, the ADA, and the Age Discrimination in Employment Act, all of which are silent as to burden of proof, have been interpreted by courts to place the burden on the plaintiff. Second, even if schools have greater expertise and resources, our system “does not automatically assign the burden of proof to the side with the bigger guns.” Congress was acutely aware of the position of most parents in any dispute with their schools, and provided elaborate procedural safeguards in the statute to help “level the playing field.” But Congress did not reallocate the burden of proof, presumably because it thought this unnecessary given the other safeguards. Third, even if the IDEA is patterned after two court cases that crafted remedial orders including placement of the burden on the schools, this only supports placing the burden on the parents under the IDEA because it shows that Congress copied many things from those orders but not the burden shift. Fourth and finally, placing the burden of proof on the school effectively creates a presumption against the adequacy of the school’s proposal, something at odds with the IDEA’s reliance on local school expertise.

In a dissent, Judge Luttig argued that the majority’s so-called default rule was really only a weak presumption, that other civil rights statues were distinguishable, and that schools possess a true advantage over parents that justifies placing the burden on it. Judge Luttig concluded by suggesting that the majority may have been “unduly influenced” by the particular (and less than completely sympathetic) facts of the case because the parents proved quite sophisticated (they were represented by counsel and backed by expert testimony, knowledgeable of their rights and of educational resources, and possibly strategic in their use of procedure) and that the court should recognize that that this is atypical.

The Schaffers argue that the burden should always be on the school (as a practical matter, parents are almost always the party to request a hearing, so placing the burden on the requesting party effectively amounts to placing the burden on the parents). Throughout the argument, the Schaffers call attention away from the particular facts of their case and to the plight of children with disabilities and their parents generally, especially as it afflicts poor and less educated families. They first argue that Congress, in adopting the label “due process hearing,” meant to incorporate the Mathews v. Eldridge three-prong procedural due process test, and that under this test the burden must be borne by the school because otherwise there will be an unacceptably high risk of injuring the child’s important educational interests, with little long-term benefit to the government/public. They next present a litany of policy and fairness reasons why the burden should be placed on the school, citing precedent that the default burden rule is not hard-and-fast, but rather turns on such policy considerations. They emphasize the affirmative obligations placed on the school (distinguishing other civil rights statutes), the asymmetry in consequences that flow to children and schools from an erroneous decision, and the school’s greater control over and access to important facts and witnesses. They also point out that courts have interpreted a silent Social Security disability statute to create a burden-shifting scheme for similar reasons. Finally, the Schaffers argue that the IDEA’s procedural safeguards do not remotely level the playing field, and need to be supplemented by placing the burden of proof on schools in order to further Congress’s objectives.

In response, the school district argues that the burden belongs to the party initiating the proceeding. It emphasizes the particular facts of this case, and invokes the specter of litigious, strategic parents using the burden of proof to siphon money away from public education and into costly proceedings and private education for their children. It argues that its position is by far the prevailing rule in statutorily created proceedings, and that Congress evinced no intent to do otherwise with the IDEA. Even if policy considerations counsel otherwise (a conclusion it disputes), that is something for Congress to decide. Due process is not offended, because the Court has long held that placing the burden of proof on a party challenging government action is constitutional. Congress’s many provisions explicitly giving parents protections point against a silent protection in the form of a non-default burden rule; Congress knows how to change the burden if it wants to do so (and temporarily did so explicitly for some parts of the IDEA). Turning to federalism, the district also argues that Spending Clause programs are like contracts, and Congress cannot impose conditions without being clear, nor can it be seen to intrude on traditional areas of state regulation like education without being clear. Placing the burden on schools impugns state and local government by making their decisions presumptively invalid (at odds with the traditional presumption of regularity). The district also disputes that compared to parents, schools have advantages that can be addressed by shifting the burden of proof. Resources and sophistication are unrelated to burden, while parents have better access to their own children and have full access to the school’s knowledge under that statute’s procedural safeguards. Further, the costs of placing the burden on schools will be extraordinarily high because schools will have to prepare a complete defense to every aspect of every IEP in preparation for every hearing.

Interestingly, the United States recently switched sides in this case, having supported the Schaffers at one stage below but yet having filed an amicus brief supporting the school district before the Court. The US explains in its brief that in between, it engaged in a “careful review of its administrative practice, the relevant case law, and the text, structure and history of the IDEA” including 2004 amendments from the No Child Left Behind Act, and changed its views — the burden falls on the party seeking relief so long as the State has not itself placed the burden on the schools. The Department of Education has not promulgated any regulations on this topic (though it claims the authority to do so), so the statutory interpretation it gives in its brief (largely echoing respondents) would presumably be entitled only to persuasive deference under Skidmore, if anything. The Schaffers argue that the US’s recent reversal of its position undermines any deference to which it might otherwise be entitled.

The Fourth Circuit opinion can be found here.

Petitioners’ brief can be found here.

Respondents’ brief can be found here.

Petitioner’s reply can be found here.
amicus brief of the United States can be found here.