High Court to Hear Md. Special-Ed Case

http://www.washingtonpost.com/wp-dyn/content/article/2005/10/04/AR2005100401453_pf.html

High Court to Hear Md. Special-Ed Case
Parents, Montgomery Schools Split on Who Must Prove Teaching Plans Will Work

By Charles Lane and Lori Aratani
Washington Post Staff Writers
Wednesday, October 5, 2005; B01

Jocelyn and Martin Schaffer realized their son Brian was having trouble learning when, as a toddler, he was slow in beginning to speak and didn’t like to color or draw. When he was old enough, they put him in a private school, but soon the teachers there told the Potomac family that Brian needed even more help.

The family turned to the Montgomery County school system, which developed a special education plan for Brian, who by then was in seventh grade. But the Schaffers thought the plan was inadequate, and when the county would not alter it, they went to court to try to get it changed.

With more than 6.4 million school-aged children in the United States receiving special education, such disputes are not uncommon. How to settle them has been the difficulty. And now, the U.S. Supreme Court will decide.

The justices will hear oral arguments today on who bears the burden of proof in such legal disputes, parents or school systems, with the outcome likely to have a significant impact on the country’s schools and special education.

The Schaffers, backed by friend of the court briefs from eight state governments and a long list of disability rights organizations, argue that it should be up to school authorities, who have far greater information and money than most parents do, to prove that their plans will work.

Jocelyn Schaffer said that since her family’s case began, she has heard from many other parents complaining that Montgomery schools are turning a deaf ear to their concerns. Brian has since graduated from high school and is off to college, but his parents have pressed ahead with their legal fight. “I was appalled at how many people felt up against a brick wall,” she said.

The Montgomery school system argues that creating a legal presumption that schools’ plans are inadequate would encourage parents to sue rather than cooperate, requiring systems to spend scarce dollars fending off litigation. In a brief supporting the county, the National School Boards Association cited a study that put the nationwide cost of mediating and litigating special education claims at $147 million in the 1999-2000 school year.

“We know that there will be disagreements from time to time, and parents have every right to make sure their children are receiving the appropriate services,” Montgomery School Superintendent Jerry D. Weast said. “But our special education staff should not have to work under legal conditions that automatically presume that their judgments are invalid.”

The dispute between parents and teachers literally has become a federal case.

The Individuals With Disabilities Education Act, enacted under a different name 30 years ago, said schools must develop Individual Education Programs for students found to have special needs. The law provides for “due process” hearings to choose the right education plan for special-needs students when parents and educators disagree. What the law does not do, however, is say explicitly which side should bear the burden of proving that a particular proposed plan would work.

Disagreements are common. Eight federal appeals courts have addressed the burden-of-proof question. The most recent court to rule, the U.S. Court of Appeals for the 4th Circuit, based in Richmond, ruled against the Schaffers last year. The 4th Circuit said disabilities law should be interpreted to incorporate what it said was a traditional legal rule that “a party initiating the proceeding” should have to prove its case.

Brian had been in school for years before his education became a legal dispute.

Recognizing Brian’s learning difficulties, the Schaffers enrolled him at Green Acres, a private school in Rockville. Brian started in kindergarten and liked the school but struggled academically. By seventh grade, administrators said he should enroll elsewhere. The family turned to public schools.

The Schaffers hired experts to diagnose Brian’s disabilities. But from the first meeting in February 1998, the school system and the Schaffers disagreed on Brian’s diagnosis.

The Schaffers’ experts said Brian had a “unique central auditory processing deficit” and should be placed in a self-contained, full-day special education program. The school system’s experts diagnosed a “mild speech-language disability” and recommended regular classes for Brian with an aide to help, as well as extra speech therapy and reading and writing help.

When the Schaffers expressed concern that the classes at his home middle school were too large, the school system recommended a second school with smaller classes. Montgomery officials believed this was the best possible situation for Brian, but the Schaffers disagreed. In September 1998, they enrolled their son at the private McLean School of Maryland. They filed a complaint saying the school system’s plan did not meet their son’s needs and sought to be reimbursed for the private school tuition.

Their legal battle has shown how critical the burden of proof is in such disputes.

Initially, an administrative law judge said the facts were evenly balanced but ruled for the school system because, he said, the parents “bear the burden of persuasion.”

The Schaffers appealed in federal court, which sent the case back to the administrative law judge with instructions to reconsider the case with the burden of proof on the school system, which caused him to reverse his ruling.

The federal court rejected an appeal by the system, which then appealed to a three-judge panel of the 4th Circuit, which ruled 2 to 1 in favor of Montgomery County.

The case is Schaffer v. Weast , No. 04-698. An opinion is expected by July.