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.

Taking the Test

A Victorian-era test was recently found. The questions covered Latin, British history, English grammar and arithmetic. This was an entrance exam for 11-year-olds! The test and its difficulty has started a furor in the British educational establishment.

Experts said A-level and GCSE students would struggle to pass the papers, which were published by The Spectator after being discovered by reader Humphrey Stanbury, whose father sat them and passed.

Chris Woodhead, the former chief inspector of schools, said politicians needed to accept the "sad truth" of falling standards. "We're spending more and more to keep our children at school longer and longer, and yet they know less than their peers did 20, 50, 100 years ago," he said.

But Paul Woodruff, the director of studies at St Paul's School in London, said the papers "read like Sellars and Yeatman in 1066 and All That". The questions "look mind-numbingly dull and not very difficult to mug up on", he said. "It is not evidence of dumbing down, just that the goalposts have moved. What would 1898 candidates have made of: 'Use a spreadsheet to answer the arithmetic questions. Use the internet to find answers to the geography and history questions.'"

John Dunford, the general secretary of the Secondary Heads Association, said it would be a "damning indictment" ofthe education system if there had been no change in 100 years. "It is no comment on standards to say things are simply different."

The current headmaster of King Edward's School, Roger Dancey, said: "Looking at this paper is great fun but not proof we've dumbed down ... education moves on."

A spokeswoman for the Qualifications and Curriculum Authority said it was difficult to compare an entrance exam for one of Victorian Britain's top schools with today's tests.

You take the test. How would you do?

THE 1898 EXAM

No reference aids or calculators allowed. And certainly not Google

QUESTIONS

Arithmetic

1. Multiply 642035 by 24506

2. Subtract 3.25741 from 3.3; multiply 28.436 by 8.245; and divide .86655 by 26.5

3. Find the square root of 5.185,440,100

Geography

1. Where are silver, platinum, tin, wool, wheat, palm oil, furs and cacao from?

2. Name the conditions upon which the climate of a country depends, and explain the reason for any one of them

3. Where are Omdurman, Wai-Hei-Wai, Crete, Santiago, and West Key, and what are they noted for?

English history

1. What kings of England began to reign in the years 871, 1135, 1216, 1377, 1422, 1509, 1625, 1685, 1727 and 1830?

2. What important results followed the raising of the siege of Orleans, the Gunpowder Plot, the Scottish rebellion of 1639, the surrender at Yorktown and the battles of Bannockburn, Bosworth, Ethandune, La Hogue, Plassey and Vittoria?

3. How are the following people connected with English history: Harold Hardrada, Saladin, James IV of Scotland, Philip II of Spain, Frederick, Elector of Palatine?

ANSWERS

Arithmetic

1. 15,733,709,710 [2 marks]

2. 0.04259; 234.45482; 0.0327. [2 for each, total 6]

3. 2.2771561 [3]

Geography

1. South Africa; South Africa; Australia; Australia, New Zealand, South Africa and Argentina; Britain and France; Malaya and the Middle East; France and Eastern Europe; West Indies. [Half mark for each product, total 4]

2. Climate depends on hemisphere, latitude, elevation, distance inland, sea surface temperature upwind, upwind topography, local topography. [1 for each factor, plus 2 for a detailed explanation of one factor, up to a total of 7]

3. Omdurman, the Sudan, was the site of a battle in 1898 between the Dervishes and troops led by General Horatio Kitchener. Wai-Hei-Wai, on the eastern shore of China, was the site of a conflict between the Chinese and the Japanese navies in 1879. Crete, in the Mediterranean, gained independence from Turkish occupancy in 1898. The Battle of Santiago, Cuba, in 1898 was the largest engagement of the Spanish-American War and resulted in Spain's failure to prevent a blockade of the island. West Key, Florida, was a war port in the Spanish-American War. [Half mark for each place plus half mark for each reason, total 5]

English history

1. Alfred the Great, Stephen, Henry III, Richard II, Henry VI, Henry VIII, Charles I, James II, George II, William IV. [Half mark for each king, total 5]

2. The French Dauphin Charles was crowned king of France at Rheims; Joan of Arc was burnt at the stake for heresy. Guido Fawkes and seven others were hanged; a huge persecution of Catholics in England followed. Charles I tried to raise taxes to fight the rebellion, and he declared war on Parliament when it refused, leading to the Civil War. The surrender of such a large section of the British Army at Yorktown, America, secured the independence of the United States. The Scottish victory at Bannockburn established Robert Bruce upon the Scottish throne; independence followed 14 years later. The death of Richard III at Bosworth ended the Wars of the Roses and Henry VII started the Tudor dynasty. In 878, King Alfred the Great, king of Wessex, led his men to victory over the Danes at the Battle of Ethandune; a treaty was signed restricting the Danes to the north of the island. Plassey in 1757 marked the start of British conquest of India. Napoleon lost his grip on Spain at Vittoria 1813 (the defining moment of the Peninsula War), which became independent of France. [Half-mark for each, total 5]

3. None were born in England but all made a claim to its throne. [1 for the connection, up to 2 for details, total 3]

HOW DID YOU SCORE?

0-5 Back to primary school

5-15 At least you tried

15-25 Respectable effort

25-35 Suspiciously competent

35+ Get off Google and put the calculator away. Start again without the "educational aids"

Other question on the exam include:

1. Explain the meaning of o' Dee, dank with foam, western tide, round and round the sand, the rolling mist.
2. On the outline map provided, mark the position of Carlisle, Canterbury, Plymouth, Hull, Gloucester, Swansea, Southampton, Worcester, Leeds, Leicester and Norwich; Morecambe Bay, The Wash, Solent, Menai Straits and Lyme Bay; St Bees Head, The Naze, Lizard Point, and state on a separate paper what the towns named above are noted for.
3. State what you know of - Henry II's quarrel with Becket, the taking of Calais by Edward III, the attempt to make Lady Jane Grey queen, the Gordon riots.
4. Write in columns the nominative singular, genitive plural, gender, and meaning of: operibus, principe, imperatori, genere, apro, nivem, vires, frondi, muri.
5. Write these phrases in a column and put opposite to each its Latin: he will go; he may wish; he had; he had been; he will be heard; and give in a column the English of fore, amatum, regendus.

Too British for you? How about an 1895 8th Grade final exam for Salina Kansas?

Grammar (Time, one hour)
1. Give nine rules for the use of Capital Letters.
2. Name the Parts of Speech and define those that have no modifications.
3. Define Verse, Stanza and Paragraph.
4. What are the Principal Parts of a verb? Give Principal Parts of do, lie, lay and run.
5. Define Case, Illustrate each Case.
6. What is Punctuation? Give rules for principal marks of Punctuation.
7 - 10.  Write a composition of about 150 words and show therein that you understand the practical use of the rules of grammar.

Arithmetic (Time, 1.25 hours)
1. Name and define the Fundamental Rules of Arithmetic.
2. A wagon box is 2 ft. deep, 10 feet long, and 3 ft. wide. How many bushels of wheat will it hold?
3. If a load of wheat weighs 3942 lbs., what is it worth at 50 cts. per bu., deducting 1050 lbs. for tare?
4. District No. 33 has a valuation of $35,000. What is the necessary levy to carry on a school seven months at $50 per month, and have $104 for incidentals?
5. Find cost of 6720 lbs. coal at $6.00 per ton.
6. Find the interest of $512.60 for 8 months and 18 days at 7 percent.
7. What is the cost of 40 boards 12 inches wide and 16 ft. long at $20 per m?
8. Find bank discount on $300 for 90 days (no grace) at 10 percent.
9. What is the cost of a square farm at $15 per are, the distance around which is 640 rods?
10. Write a Bank Check, a Promissory Note, and a Receipt.

U.S. History (Time, 45 minutes)
1. Give the epochs into which U.S. History is divided.
2. Give an account of the discovery of America by Columbus.
3. Relate the causes and results of the Revolutionary War.
4. Show the territorial growth of the United States.
5. Tell what you can of the history of Kansas.
6. Describe three of the most prominent battles of theRebellion.
7. Who were the following: Morse, Whitney, Fulton, Bell, Lincoln, Penn, and Howe?
8. Name events connected with the following dates:
1607
1620
1800
1849
1865

Orthography (Time, one hour)
1. What is meant by the following: Alphabet, phonetic, orthography, etymology, syllabication?
2. What are elementary sounds? How classified?
3. What are the following, and give examples of each: Trigraph, subvocals, diphthong, cognate letters, linguals?
4. Give four substitutes for caret 'u'.
5. Give two rules for spelling words with final 'e'. Name two exceptions under each rule.
6. Give two uses of silent letters in spelling.  Illustrate each.
7. Define the following prefixes and use in connection with a  word: Bi, dis, mis, pre, semi, post, non, inter, mono,super.
8. Mark diacritically and divide into syllables the following, and name the sign that indicates the sound: Card, ball, mercy, sir, odd,cell, rise, blood, fare, last.
9. Use the following correctly in sentences, Cite, site, sight, fane,fain, feign, vane, vain, vein, raze, raise, rays.
10. Write 10 words frequently mispronounced andindicate pronunciation by use of diacritical marks and by syllabication.

Geography (Time, one hour)
1. What is climate? Upon what does climate depend?
2. How do you account for the extremes of climate in Kansas?
3. Of what use are rivers? Of what use is theocean?
4. Describe the mountains of North America.
5. Name and describe the following: Monrovia, Odessa, Denver, Manitoba,Hecla, Yukon, St. Helena, Juan Fermandez, Aspinwall and Orinoco.
6. Name and locate the principal trade centers of the U.S.
7. Name all the republics of Europe and give capital of each.
8. Why is the Atlantic Coast colder than the Pacific in the same latitude?
9. Describe the process by which the water of the ocean returns to the sources of rivers.
10. Describe the movements of the earth. Give inclination of the earth.