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High Court Rules Against Special Ed. Parents


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http://www.washingtonpost.com/wp-dyn/conte...5111400690.html

The Supreme Court, using a Montgomery County, Md., case to resolve a long-running, hotly contested national dispute, ruled today that the nation's school systems are not legally obliged to prove the adequacy of individualized educational programs set up for disabled children.

Rather, the court said, it is up to individual parents, when dissatisfied, to demonstrate a program's inadequacy. The 6-2 decision, which settled a split in the federal courts, was a major blow to parents' advocacy organizations, which argued that most families are not financially able to bear the burden of persuasion when going up against a board of education or a school superintendent. School officials across the country similarly contended that their resources would be drained by having to meet each challenge with a showing of adequacy.

The Individualized Education Program (IEP) is a blueprint for the services a special education student will receive as mandated by the Individuals with Disabilities Education Act (IDEA). Parents unhappy with the program -- and there are many thousands at any one time across the country -- may challenge it before an administrative law judge. But the law is silent on which party, the parent or the schools, has the burden or proof.

Justice Sandra Day O'Connor, writing in a 6-2 decision, said ordinarily the burden lies "where it usually falls, on the party seeking relief," in this case, the parents.

She said the court saw no reason to depart from this "default" position. The law, she said, does not support the argument that "every individualized educational program should be assumed to be invalid until the school district demonstrates that it's not."

Indeed, she said, "there is reason to believe that a great deal is already spent on IDEA administration, and Congress has repeatedly amended" the law "to reduce its administrative and litigation-related costs."

Joining O'Connor were Justices John Paul Stevens, Antonin Scalia, Anthony M. Kennedy, David Souter and Clarence Thomas. Chief Justice John G. Roberts Jr., whose former law firm helped represent the Montgomery County schools in the case, did not participate. Justices Ruth Bader Ginsburg and Stephen Breyer dissented, saying the majority's decision ran contrary to the purpose of the act.

Jerry B. Weast, superintendent of the Montgomery County Public School System, called the court's decision "a victory for special education teachers in Montgomery County and across the nation who work hard everyday to provide the best possible education for students with disabilities."

He added, "We defended this case for one simple reason -- we didn't want our teachers and staff spending more time in the courtroom instead of the classroom."

Michael Eig, the attorney for the family that sued the school system, said, "We're disappointed."

Today's case, Brian Schaffer et al v. Jerry Weast , concerned the educational services that were due under the law to Brian Schaffer, who suffers from learning disabilities and speech-language impairments.

The process for developing an IEP is supposed to be collaborative, but can turn combative when parents and the school system disagree on what is best for a child. Traditionally, the party that challenges the appropriateness of an IEP must prove in an administrative hearing why it is flawed. The Schaffer case sought to challenge that notion.

In the Schaffer case, attorneys argued that the school system -- with all its expertise and resources -- was best positioned to bear the burden of persuasion, rather than the parents, who lack access to similar resources. Parents of special education students hoped a ruling in favor of the Schaffers would give them more influence in the IEP process.

But school systems feared that a ruling for the Schaffers would force them to spend more money in court than in the classroom. Lawyers for Montgomery County Public Schools said that placing the burden on the school system would create the presumption that all IEPs were flawed from the start. It also would give parents less incentive to work collaboratively with the school system, they argued.

Jocelyn Schaffer said she and her husband knew early on that Brian had learning difficulties. He was slow to begin speaking and preferred to communicate using hand gestures and motions. Unlike many young children, he didn't like to color or draw and had difficulty sitting still. But he excelled at physical pursuits and was able to ride a bike by the age of 3, his mother said.

When he was 2, the Schaffers hired a speech therapist to work with their son, and when he was old enough for kindergarten, the Schaffers chose Green Acres, a small private school in Rockville where the emphasis was on hands-on learning. He liked the school but struggled academically. By seventh grade, administrators recommended that the Schaffers find another program for Brian.

The family turned to the public schools. But from the very first meeting in February 1998 to develop an education plan, the school system and the Schaffers disagreed on Brian's diagnosis.

The Schaffers' experts said Brian had a "unique central auditory processing deficit" and required placement in a self-contained, full-day special education program.

The school system's experts diagnosed him with a "mild speech-language disability" and recommended a setting where Brian and other special education students would take regular classes, but would have an aide to help them with lessons. In addition, Brian would get 45 minutes each weekof small-group speech therapy and 45 minutes of reading and writing support every day in a special education classroom.

When the Schaffers expressed concern that the classes at his middle school were too large, the school system recommended a second school not far from the family's home that had smaller classes.

The Schaffers declined the placement and in September 1998, enrolled their son at the private McLean School. They filed a complaint against the school system challenging Brian's education plan, saying it did not meet their son's needs and seeking reimbursement for the private school tuition.

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 to U.S. District Court in Maryland, 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, and that caused the judge to reverse his ruling.

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

The parents, O'Connor wrote today, "in effect ask this Court to assume that every IEP is invalid until the school district demonstrates that it is not. The Act does not support this conclusion. . . . The burden of proof in an administrative hearing challenging an IEP is properly placed upon the party seeking relief."

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I'm not sure that they could have ruled any differently than they did. The ruling was based on laws. I really do think that in todays legal climate that if they had ruled differently that everyone would be tied up in litigation and costs and there probably would have been an impact on the $$ actually available to special education programs. I think this problem can be seen in a lot of areas where "the public" can second guess government ofr business and file lawsuits that ultimately do nothing but raise costs. I don't know how you can stop this and still be "fair". It's really just laws and politics as usual. I think the "level of abstraction" this creates in dealing with "social problems" is inevitable. These things should be able to be handled at the "local" level, but I think the system makes that difficult to. So do the public's expectations - that government will take care of everything so they don't need to - or else they feel so taxed that they feel they can't afford to do more as an individual (which is probably true!)

As "Dire Straits" said "There's no more volunteers - so you've got profiteers - for to help you out."

I doubt my post makes sense but I'm not going back to try to edit!

(Throws up hands!  - or just throws up!)

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Well, not have any stake in this and no experience, to boot:

This sounds like the correct and logical decision. 

The school already has the requirement of assessing the child and developing a plan.  It has the resources, professionals and experts to do this. One must presume that they are competent by state educational standards, and that they develop competent plans.

If parents disagree with the IEP, it is incumbent on them to show that the plan is wrong or deficient.

Looks like they get a fair shot in front of an administrative law judge.  They make their case, the school will have to present their case.  The judge will weigh them both. So in essence, the school really still has to prove that they have an appropriate plan.

What other way is there to do this?  Parents say "we don't like it but we have no basis other than our opinion?"

No doubt there will be valid disagreements and some plans that are substandard.  But who among us got a blue ribbon, no expense spared, perfect education all the way thru?

a.m.

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I write this as a first-grade teacher who has several special ed. students in her classroom every year. School districts try to save money by not putting kids into full-time special ed., which is typically a very expensive program to support. They say that the best thing for students is mainstreaming and pulling out -- i.e., putting kids in general ed. classrooms and pulling them out for speech, occupational therapy, counseling, resource room, whatever. This practice is called "inclusion."

The problem is this: inclusion for one special ed. student means exclusion for the other 19 students in the room. If I have to spend all day telling X to sit down, to stop hitting, to stop swearing, and to stop talking while I'm talking, and if I have to hold his hand through every lesson -- and this has been my situation every year -- well, what does that mean for my non-spec.ed. students? What about them? I don't have an aide in my room because my urban school can't afford those luxuries.

A few years ago I had a severely emotionally disturbed student who threw desks and chairs, ripped up the classroom, and did other violent things when she was mad, which was frequently. No matter how much I prevailed upon the administration to give her appropriate placement in a smaller setting with an aide, they said No. The turning point was the day she banged the head of one of my other students (another spec. ed. student, this one mentally retarded) against a brick wall on the playground, and it took 4 adults to subdue her. They took her away in an ambulance and no one ever saw her again. Her foster mother tells me she's now institutionalized. Oh, but there was no reason for her to be in a special ed. setting. Yeah, right.

Mainstreaming doesn't work, and I'm sorry to see that SCOTUS has undermined parents' rights to collaborate in a real way on their child's IEP and grieve a decision without going through expensive legal motions. Some children can't and shouldn't be mainstreamed, and maintaining that they should be is robbing not only the spec. ed. child, but also the general ed. classmates of that child.

My $0.02. End of rant.

clumsycrawling

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Yeah, your probably right - in this instance. But how many other parents whose kids were placed in special ed classes would argue to have them mainstreamed if they had the chance? Then you'd have the same problem. The basis for lawsuits etc isn't always rational or appropriate. But it almost always IS expensive.

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Yeah, your probably right - in this instance. But how many other parents whose kids were placed in special ed classes would argue to have them mainstreamed if they had the chance? Then you'd have the same problem. The basis for lawsuits etc isn't always rational or appropriate. But it almost always IS expensive.

<{POST_SNAPBACK}>

I don't know if this is part of the IDEA legislation or just a policy in my metropolitan district, but parents have the power to mainstream their sp.ed. kids (though not the reverse) and hold all the cards as to whether or not their child gets evaluated in the first place. I've had parents want to evaluate a kid who was just having a minor temporary reading problem, and parents who were in denial about a child who clearly was mentally retarded and refused to have him evaluated.

It seems like the only thing parents are not empowered to do is get their child placed in sp.ed. when the district says otherwise -- which, given the current trend of mainstreaming, is going to be an increasingly frequent problem.

I agree with you that no matter how the SCOTUS ruling went, some parent somewhere would be left out in the cold. I'm just relating my reaction based on anecdotal evidence.

clumsycrawling

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I agree that some parent somewhere will be left out in the cold.

But as a parent with unfortunate experience in this issue, I still agree with their ruling about sticking to legalities and the burden of proof.

An IEP is developed by a team and there is testing and observation, over a period of time, as well as parental involvement and medical input.  With the work that goes into it, it is reasonable to assume the IEP is valid.  That doesn

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