A Bad IDEA

The Supreme court has ruled that parents carry burden of proof in school cases.

WASHINGTON, Nov. 14 - The Supreme Court ruled in a closely watched education case on Monday that parents who disagree with a school system's special-education plan for their child have the legal burden of proving that the plan will not provide the "appropriate" education to which federal law entitles all children with disabilities.

The 6-to-2 decision, in a case from a Washington suburb, Montgomery County, Md., affirmed a ruling last year by the United States Court of Appeals for the Fourth Circuit, in Richmond, Va. Chief Justice John G. Roberts Jr. did not take part in the case, which was argued on Oct. 5, because his former law firm represented the school district.

What's involved here is what is known as IEP (individualized education plan) for disabled children under a law known as IDEA. When things go well this plan is negotiated between the parents and the school. When things don't go well it goes before an administrative law judge. The court ruled the burden of proof that the IEP is deficient is on the complaining party which almost always is the parents. In this particular case the state of the evidence was in legalese, evidentiary equipose, meaning a complete tie. In civil cases the normal rule is what the Supreme Court applied. However there are exceptions and the question before the court was whether this was an exceptional case.

Something happened that I thought would never occur in my life: I agree with Justice Ginsberg's dissent. Here's a salient quote:

  Understandably, school districts striving to balance their budgets, if "[l]eft to [their] own devices," will favor educational options that enable them to conserve resources. Deal v. Hamilton County Bd. of Ed., 392 F. 3d 840, 864-865 (CA6 2004). Saddled with a proof burden in administrative "due process" hearings, parents are likely to find a district-proposed IEP "resistant to challenge." 377 F. 3d, at 459 (Luttig, J., dissenting). Placing the burden on the district to show that its plan measures up to the statutorily mandated "free appropriate public education," 20 U. S. C. §1400(d)(1)(A), will strengthen school officials' resolve to choose a course genuinely tailored to the child's individual needs. [emphasis mine]

What Justice Ginsberg noticed here my wife and I have experience in practice. The school district will do the least expensive option it can get away with. My wife noted it is very much like dealing with an insurance company. We should note that the teachers and paraprofessionals are caught in the middle here between parents who want the best education for their children and pressure from the school district to keep it cheap. Justice Ginsberg correctly identifies the economic pressures here:

The Court acknowledges that "[a]ssigning the burden of persuasion to school districts might encourage schools to put more resources into preparing IEPs." Ante, at 9. Curiously, the Court next suggests that resources spent on developing IEPs rank as "administrative expenditures" not as expenditures for "educational services." Ibid. Costs entailed in the preparation of suitable IEPs, however, are the very expenditures necessary to ensure each child covered by IDEA access to a free appropriate education. These outlays surely relate to "educational services." Indeed, a carefully designed IEP may ward off disputes productive of large administrative or litigation expenses.  [RDB note: No kidding. Note the large expenses incurred when Berthoud Colorado failed to live up to their responsibilities.]

     This case is illustrative. Not until the District Court ruled that the school district had the burden of persuasion did the school design an IEP that met Brian Schaffer's special educational needs. See ante, at 5; Tr. of Oral Arg. 21-22 (Counsel for the Schaffers observed that "Montgomery County ... gave [Brian] the kind of services he had sought from the beginning ... once [the school district was] given the burden of proof."). Had the school district, in the first instance, offered Brian a public or private school placement equivalent to the one the district ultimately provided, this entire litigation and its attendant costs could have been avoided.

     Notably, nine States, as friends of the Court, have urged that placement of the burden of persuasion on the school district best comports with IDEA's aim. See Brief for Virginia et al. as Amici Curiae. If allocating the burden to school districts would saddle school systems with inordinate costs, it is doubtful that these States would have filed in favor of petitioners. Cf. Brief for United States as Amicus Curiae Supporting Appellees Urging Affirmance in 00-1471 (CA4), p. 12 ("Having to carry the burden of proof regarding the adequacy of its proposed IEP ... should not substantially increase the workload for the school.").³

     One can demur to the Fourth Circuit's observation that courts "do not automatically assign the burden of proof to the side with the bigger guns," 377 F. 3d, at 453, for no such reflexive action is at issue here. It bears emphasis that "the vast majority of parents whose children require the benefits and protections provided in the IDEA" lack "knowledg[e] about the educational resources available to their [child]" and the "sophisticat[ion]" to mount an effective case against a district-proposed IEP. Id., at 458 (Luttig, J., dissenting) [RDB note: I think this is Supreme Court wannabe Luttig dissenting here so this is not just liberal reasoning.] ; cf. 20 U. S. C. §1400(c)(7)-(10). See generally 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), available at http://www.seels.net/designdocs/SEELS_Children_We_
Serve_Report.pdf (as visited Nov. 8, 2005, and available in Clerk of Court's case file). In this setting, "the party with the 'bigger guns' also has better access to information, greater expertise, and an affirmative obligation to provide the contested services." 377 F. 3d, at 458 (Luttig, J., dissenting). Policy considerations, convenience, and fairness, I think it plain, point in the same direction. Their collective weight warrants a rule requiring a school district, in "due process" hearings, to explain persuasively why its proposed IEP satisfies IDEA's standards. Ibid. I would therefore reverse the judgment of the Fourth Circuit.

Comments

[*** Dave]

As one with a child with an IEP, I'm torn here. On the one hand, I'm interested in being confident that the IEP is the best possible thing for my kid. On the other hand, a ruling in the other direction would, indeed, seem to open the floodgates to every parent to demand bigger, better, brighter, shinier, more expensive IEPs, whether warranted or not "I don't like that my kid only gets one-on-one treatment three times a week for an hour -- I want daily for two hours."

In a sense, it's like malpractice. The burden is on patients to show that the medical care provided was inadequate. If people could declare provided care inadequate and force doctors to defend their actions, without presenting a prima facie case of that inadequacy, no doctor could ever practice. Similarly, if I could simply declare an IEP inadequate and force the district to prove it was not, the results would be, it seems to me, most unfortunate.