Today�s argument in Schaffer v

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					                              The Law Office of Beth T. Sigall, PLLC
                                    969 North Potomac Street
                                  Arlington, Virginia 22205-1649
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BACKGROUND: On October 5, 2005 the United States Supreme Court heard oral
argument in a special education case, Schaffer v. Weast. In this case the Court is being
asked to decide the following question: Under the Individuals With Disabilities
Education Act (IDEA), when parents of a disabled child and a local school district reach
an impasse over the child’s IEP, which side has the burden of proof at a due process
hearing – the parents or the school district? The U.S. Court of Appeals for the Fourth
Circuit (the circuit that encompasses the states of Maryland, Virginia, West Virginia,
North Carolina and South Carolina) ruled 2-1 that parents, not schools, should bear the
burden of proof, with Judge Michael Luttig writing in dissent that schools should bear the
burden of proof, not parents. Because other courts of appeals previously had issued
conflicting opinions on the same issue the Supreme Court decided to take this case.

On April 29, 2005 the law firm of Jones Day (Washington, D.C.) and the Law Office of
Beth T. Sigall, PLLC (Arlington, VA) filed a friend of the court brief on behalf of various
autism organizations in support of petitioners (parents – the Schaffers). The groups
included Autism Society of American, Northern Virginia Chapter (ASA-NV), Parents for
Autistic Children’s Education (PACE), Parents of Autistic Children, Northern Virginia
chapter (POAC-NoVa) and Unlocking Autism. The brief received the full support and
approval of the Autism Society of America, national chapter (ASA).

William Hurd of the law firm Troutman Sanders (Richmond, VA) argued first as counsel
for petitioner (Brian Schaffer and his parents), followed by David B. Salmons, Assistant
to the Solicitor General on behalf of the United States supporting the respondent,
Montgomery County School System, followed by Gregory Garre of the law firm Hogan
& Hartson (Washington, D.C.) on behalf of Montgomery County schools. Hurd closed
out the session with a brief rebuttal argument.

ARGUMENT: The Justices1 peppered all the attorneys with multiple questions
addressing both the facts of the case as well as its legal underpinnings. An assessment of
the Justices questions reveals a particular interest in four areas: First, what could the
Court infer from Congress’ failure to address the burden of proof issue in the actual
language of the statute? Second, in the past, how have courts treated burden of proof
disputes under laws or cases similar to IDEA? Third, how does the IEP dispute process
work in real life and what is the impact on parents and schools of shifting the burden of
proof? Fourth, what are all the options or remedies the Court can consider in determining
how to resolve the burden of proof dispute and how would these remedies work in
reality?

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    Chief Justice John Roberts recused himself from the case.
IDEA Statutory Silence – Because the actual language of IDEA does not state who
should bear the burden of proof in a due process hearing, the Justices through their
questioning tried to determine what could be inferred from this silence. Justice O’Connor
asked if there was anything in the legislative history of the statute that provided insight
into how Congress viewed the burden of proof under IDEA. Justice Breyer offered that
since the statute was silent, perhaps the issue should be left to the U.S. Department of
Education or the states to develop their own burden of proof rules, as some states have
already done. Justice Scalia questioned how Congress could write such a detailed statute
like IDEA without addressing the burden of proof issue, and then suggested that perhaps
Congress intentionally remained silent on the issue. Justice Stevens asked whether they
could draw any conclusions from Congress’ repeated expressions of dissatisfaction with
the state of special education as it relates to burden of proof.

Similar Laws Or Cases And Burden of Proof – As is frequently the case, the Justices
tried to determine how the case in front of them could be compared to similar cases or
laws. This area received a lot of attention. Montgomery County Schools had argued that
under so-called “traditional” rules of pleading, the party who seeks relief is typically the
party who must bear the burden of proof, even in cases involving rights similar to special
education, such as civil rights laws or the laws involving the receipt of disability or
welfare payments. Along these lines, Justice O’Connor asked for examples of statutes
like IDEA or cases where this so-called “traditional” rule does not apply. She also asked
whether a state could adopt a general burden of proof law which could apply to IDEA
cases, and whether any state had done so. Justice Scalia followed with similar
questioning, asking how and why IDEA should be treated differently than so many other
statutory schemes where some type of relief is provided because in those scenarios the
burden of proof is on the party seeking relief.

Justice Souter observed that he had not witnessed a single instance where a private party
challenging the decision of a government agency did not have the burden of proof.
Justice Breyer’s questioning in this area also focused on the level of deference typically
afforded to the decisions of government agencies. Justice Kennedy also questioned why
schools are not afforded some deference in the decision-making involved in developing
an IEP, particularly since parents have substantial access to information about the child
and the IEP. Alternatively, Justice Stevens observed that schools are in the best position
to tell a judge whether an IEP is valid if a parent raises objections to it.

Dispute Resolution Under IDEA and Harm to Schools vs Harm to Parents – The
Justices probed this area extensively to help flesh out how due process hearings work and
what are the implications when the burden of proof is placed on either parents or schools.
Justice O’Connor asked who should bear the burden of proof if parents agreed to an
initial IEP, but dispute a subsequent IEP, and noted that some courts have opted to assign
the burden of proof to schools for initial IEPs and then to the party disputing the IEP for
subsequent IEPs. Justice Ginsburg later noted that since parents bring the overwhelming
majority of due process cases, to distinguish between initial versus subsequent IEPs for
purposes of assigning burden of proof might be an insignificant distinction in practice.
Justice Scalia asked for examples of when a school district is the complaining party under
IDEA.


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In assessing the practical implications of assigning the burden of proof, Justice Stevens
observed that many cases involve parents seeking reimbursement of private school tuition
when the parents reject the IEP proposed by the school and then unilaterally place their
child in a private school. He seemed concerned that parents might bring more
reimbursement cases or at a minimum face fewer obstacles proving their case if the
burden of proof were shifted to schools. Justice Scalia observed that under any statutory
scheme a state cannot pursue the purpose of a statute “at all costs,” meaning that courts
routinely recognize the right of government agencies to consider costs when
implementing a statute. Along these lines, both Stevens and Scalia expressed concern
that parents were downplaying the costs imposed on school districts by lengthy IEP
disputes, with Scalia noting that “this is not play money.” Alternatively, Scalia later
observed that the “parade of horribles” the school districts predicted if schools should
have the burden of proof (e.g., exploding litigation and rising costs) have not happened in
states where the burden of proof is already on the school. Stevens noted that the harm to
a parent who cannot afford to unilaterally place their child in a private school is that the
child will not receive the education the parents feel the child needs.

Appearing to rebut the economic harm arguments offered by the school districts, Justice
Ginsburg sought data on the costs of litigation incurred by school districts in jurisdictions
where schools already have the burden of proof. Justice Stevens also showed interest in
this line of questioning, asking whether there has been a significant increase in IEP-
related litigation brought by parents in states where the burden of proof is already on the
school.

Options Courts Can Consider in Resolving Burden Of Proof – Justice O’Connor
expressed concern through questioning that without some resolution of this case, courts
may have to decide in every instance which side has the burden of proof. O’Connor
wondered whether courts could look to state law to decide the issue. Justice Breyer
showed interest in a compromise result offered in another case, where the
court placed the burden of proof on the school for the initial IEP, then on the party
challenging the IEP (usually parents) for subsequent IEPs.

CONCLUSIONS: It is difficult to determine how the Justices may rule based on
analysis of questions presented at oral argument. Generally speaking the Justices
displayed great interest in the practical implications of who bears the burden of proof and
how to fashion a remedy that considers these implications. They seemed hesitant to side
completely with either schools or parents and appeared to be searching for a way to
resolve the case without issuing a blanket, one-size-fits-all ruling in favor of parents or
schools bearing the burden of proof. At the same time, the Justices seemed to realize that
the current legal landscape creates uncertainty for parties and places undue burdens on
judges who are forced to resolve preliminary pleading issues such as burden of proof
before they can address the merits of the case.




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