The Blinne Blog

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.

The French Connection

The source of the Niger yellowcake documents has now been officially identified in a story by the New York Times.

ROME, Nov. 3 - Italy's spymaster identified an Italian occasional spy named Rocco Martino on Thursday as the disseminator of forged documents that described efforts by Iraq to buy uranium ore from Niger for a nuclear weapons program, three lawmakers said Thursday.

The spymaster, Gen. Nicolò Pollari, director of the Italian military intelligence agency known as Sismi, disclosed that Mr. Martino was the source of the forged documents in closed-door testimony to a parliamentary committee that oversees secret services, the lawmakers said.

The interesting part is here buried in the middle of the story.

Senator Luigi Malabarba, who also attended Thursday's hearing, said in a telephone interview that General Pollari had told the committee that Mr. Martino was "offering the documents not on behalf of Sismi but on behalf of the French" and that Mr. Martino had told prosecutors in Rome that he was in the service of French intelligence.

A senior French intelligence official interviewed Wednesday in Paris declined to say whether Mr. Martino had been a paid agent of France, but he called General Pollari's assertions about France's responsibility "scandalous."

Even this is old news. The Daily Telegraph reported the following a year ago:

Italian diplomats have claimed that, by disseminating bogus documents stating that Iraq was trying to buy low-grade "yellowcake" uranium from Niger, France was trying to "set up" Britain and America in the hope that when the mistake was revealed it would undermine the case for war, which it wanted to prevent.

Italian judicial officials confirmed yesterday that Mr Martino had previously been sought for questioning by Rome. Investigating magistrates in the city have opened an inquiry into claims he made previously in the international press that Italy's secret services had been behind the dissemination of false documents, to bolster the US case for war.

According to Ansa, the Italian news agency, which said privately that it had obtained its information from "judicial and other sources", Mr Martino was questioned by an investigating magistrate, Franco Ionta, for two hours. Ansa said Mr Martino told the magistrate that Italy's military intelligence, Sismi, had no role in the procuring or dissemination of the Niger documents.

He was also said to have claimed that he had obtained the documents from an employee at the Niger embassy in Rome, before passing these to French intelligence, on whose payroll he had been since at least 2000.

However, he reportedly also added that he had believed that the documents in question were genuine, and to have never suspected that they had been forged. "Martino has clarified his position and offered to deliver to the magistrates the documents which confirm his declarations," his lawyer, Giuseppe Placidi, told Ansa.

It was not possible to contact Mr Martino through his lawyer yesterday. Contacted by The Telegraph, Mr Ionta politely declined to comment, but did not deny that the questioning had taken place. The Interior Ministry in Rome, which had also expressed keen interest in the Telegraph article, refused to comment on the matter.

Mr Martino is said by diplomats to have come forward of his own accord and contacted authorities in the Italian capital following the earlier article in the Telegraph. They said he had written a letter of resignation to the French DGSE intelligence service last week.

According to an Italian newspaper report yesterday, members of the Digos, Italy's anti-terrorist police, removed documents from Mr Martino's home in a northern suburb of Rome on Friday afternoon.

"After being exposed in the international press, French intelligence can hardly be amused or happy with him," one western diplomat said. "Martino may have thought the safest thing was to hand himself over to the Italians." Investigators in Rome suspect that Mr Martino was first engaged by the French secret services five years ago, when he was asked to investigate rumours of illicit trafficking in uranium from Niger. He is thought to have then been retained the following year to collect more information. It was then that he is suspected of having assembled a dossier containing both real and bogus documents from Niger, the latter apparently forged by a diplomat.

The New York Times on the other hand only cares about whether Italian intelligence was complicit in this and apparently had no curiosity about French intelligence. Nevertheless, Italian intelligence gets acquitted in the process.

General Pollari also said that no Italian intelligence agency officials were involved in either forging or distributing the documents, according to both Senator Brutti and the committee chairman, Enzo Bianco.

Committee members said they were shown documents defending General Pollari, including a copy of a classified letter from Robert S. Muller III, the director of the F.B.I., dated July 20, which praised Italy's cooperation with the bureau.

In Washington, an official at the bureau confirmed the substance of the letter, whose contents were first reported Tuesday in the leftist newspaper L'Unità. The letter stated that Italy's cooperation proved the bureau's theory that the false documents were produced and disseminated by one or more people for personal profit, and ruled out the possibility that the Italian service had intended to influence American policy, the newspaper said.

As a result, the letter said, according to both the F.B.I. official and L'Unità, the bureau had closed its investigation into the origin of the documents.

Finally, The New York Times states as fact something that is not so:

The documents were the basis for sending a former diplomat, Joseph C. Wilson IV, on a fact-finding mission to Niger that eventually exploded into an inquiry that led to the indictment and resignation last week of Vice President Dick Cheney's chief of staff, I. Lewis Libby. [emphasis mine]

Note the following conclusions that the Democrats didn't allow to be published as part of the SSCI report:

Conclusion: The plan to send the former ambassador to Niger was suggested by the former ambassador's wife, a CIA employee.

 

The former ambassador's wife suggested her husband for the trip to Niger in February 2002. The former ambassador had traveled previously to Niger on behalf of the CIA, also at the suggestion of his wife, to look into another matter not related to Iraq. On February 12, 2002, the former ambassador's wife sent a memorandum to a Deputy Chief of a division in the CIA's Directorate of Operations which said, "[m]y husband has good relations with both the PM [prime minister] and the former Minister of Mines (not to mention lots of French contacts), both of whom could possibly shed light on this sort of activity." This was just one day before the same Directorate of Operations division sent a cable to one of its overseas stations requesting concurrence with the division's idea to send the former ambassador to Niger. [emphasis mine]

Two things should be noted. First, that Ambassador Wilson was sent on a matter not related to Iraq and thus was not evaluating the forged documents. Second, that according to his wife he had "lots of French contacts".

There should be an investigation on the role of French intelligence in this whole mess to determine if they deliberately planted these documents in order to discredit the Iraq war effort given that there were many French companies up to their eyeballs in the Oil for Food scandal.