If A Parent Decides To Challenge Their School District In Court, What Burden Do They Have
In Proving Their Case?

Weast v. Schaffer, Fourth Circuit Court of Appeals, July 29, 2004

Reed Martin, J.D.


How much "proof" will the parents have to show to prove their case?
When a parent contemplates going to court to challenge their school district, how much "proof" are they going to have to show to prove their case? Is the burden totally on the parents or does the school district share the burden themselves?

Can the parent win simply because the school district cannot prove they offered an adequate program?

Fourth Circuit case insists that the burden is on the parents

Weast v. Schaffer (Fourth Circuit) insists that the burden is almost entirely on the parent to prove. If the parents do not win their points, they lose the case.

The student in this case had ADHD and other learning disabilities. He attended a private school from pre-K through Seventh Grade. He struggled and the private school personnel told the mother she needed to put him in a school that could accommodate his disabilities. [note: private schools are required under the Americans with Disabilities Act, Title III, to meet the needs of a student in a private school, but this was apparently never raised in this case].

The mother then contacted a local public school for evaluation. In the meantime the parents had the student admitted to another private school. The local public school found him eligible for special education in the public school and offered an IEP for the next school year.

The public school offered to provide the services determined by the IEP at a campus ten minutes from the student's home, where he could receive the instruction in small classes. The parent replied with a request for a Hearing, for reimbursement of their private school tuition and other expenses.

At the Hearing, the Hearing Officer assigned the "burden of proof" to the parents. The parents challenged the substance of the IEP, not the process by which it was developed. The Hearing Officer explained that meant that the parents had to prove that the IEP was inadequate – under the Supreme Court "Rowley" decision the parents had to prove that the IEP was not "reasonably calculated to enable the child to receive educational benefits."

We would ordinarily assume the opposite -- that the school district would be required to prove that their IEP was in compliance with all applicable laws.

The Hearing Officer noted that "the assignment of the burden of proof was critical to the outcome." It certainly is. The Hearing Officer felt the parents had not met their burden and therefore ruled against them.

The parents lost and appealed to the U.S. District Court. In the meantime, the District Court agreed with the parents that the burden of proof should have been assigned to the School District.

The Hearing Officer reconsidered the case and reassigned the burden of proof to the school district. He found that the school district had not met the burden of proving that they had an adequate IEP and after more procedures the Hearing Officer found virtually for the parent.

The case was then appealed to the Fourth Circuit Court of Appeals which noted that the issue whether the parent or the school district had the burden of proof was not clearly decided among the other Circuit Courts.

The Fourth Circuit announced, to try to clarify things a little, that only the substance of the IEP had been challenged in this case – so that would be the basis for the decision.

Further, the Circuit Court agreed that the Congress had not assigned the burden of proof in the IDEA statute and therefore the courts should follow the general rule – "a party who initiates a proceeding to obtain relief based on a statutory obligation bears the burden of proof ... of showing why it is deficient." That means the burden is on the parent in a case like this.

The Circuit Court added that "parents will have to offer expert testimony to show that the proposed IEP is inadequate."

The decision by the Fourth Circuit Court of Appeals was therefore rendered for the school district.

We do not know the "in and outs"

Note: We do not know the "ins and outs" of the development of this particular case - and we are frankly surprised by some of the "reasoning" of the judges - but we can suggest, from the ruling in this case, how we might try to avoid a similar result in another case.

Arguments over "how much is enough..." are always difficult. This case turned on those "substantive" issues.

Procedural issues produce a black & white document

We have always found it easier to deal with the "procedural issues" because they produce a black and white document.

First, did the parents have complete access to their student's records? Did they complain in writing if they were denied complete access? Did they receive any written response from the school district?

In this case the records were almost all in the hands of the private school. However when we are working up a typical case the public school district is nearly always involved and we always (sad to say, always) have a violation of rights under the Family Educational Rights and Privacy Act (FERPA) when we try to get access to the student's records. Since there is a FERPA section of the IDEA, Section 504 and the ADA the parent would start with violations of four Federal laws that it can show to the Hearing Officer or to the Court to meet the burden of proof as to who is right in this case.

We won't go into detail, in this case analysis, in preparing for the IEP meeting once you have the records, but there might be violations (no evaluation shown to parents before the meeting, evaluator not at the meeting, no regular education teacher at the meeting, no administrator who can commit the resources needed for the IEP at the end of the IEP meeting, denying parents the use of a tape recorder and so forth – see our Manuals and articles on our website on those kinds of issues). There were over 100 changes in the IDEA process -- in both the 1997 IDEA Statute and 1999 Regulations -- and we find many advocates still not using those changes seven years later.

Our point is that each of those are black and white, provable, events – not the more difficult to prove standard "was the IEP inadequate" – that this Weast case was using.

After the IEP meeting, the school district must issue Prior Written Notice to the parents explaining – in a statutory format of seven questions and answers – exactly what was proposed and refused at the IEP meeting. In our work since the IDEA went into effect we have never had Prior Written Notice issued by the school district in any of our cases and we have actually won some cases just on that issue when the Federal judge felt that was so basic a violation that they had to rule for the parent.

Finally (although we have many more procedural "black and white" violations that we would pursue in working up a case) we would exhaust the duty of the school district to have interacted with the parent on Section 504 issues, Americans with Disabilities Act issues and FERPA issues, in addition to any IEP issues. Each of those statutes requires a named coordinator approved by the school board, written material we can access that has rights specified under each statute, and so forth.

"Were the Act's procedures complied with"

Then our argument would be that of the U.S. Supreme Court in its first case ever on special education. The Court asked first, "were the Act's procedures complied with" and then, second, "was the resulting IEP reasonably calculated to confer educational benefit?"

We have found it much more clear cut to focus on "were the Act's procedures complied with" because we can ask the school district for pieces of paper that either exist or do not (for example, the written self-evaluation of all policies, practices and procedures that had to be done under Section 504 and under the ADA) and so forth.

Sometimes a parent would contact us and say "I have sent in a lengthy request for a Hearing. Will you represent us?" I would have to answer, especially after the Handicapped Children's Protection Act of 1986, that I probably could not because the school district would oppose my adding anything new after the request for the Hearing had been framed and without all the issues we want to have in the case we could not predict a victory.

Our experience has been that if a parent, parent advocate, or attorney, "works up a case" using all the levers they can press, it is likely that they will not have to go into court and can resolve the dispute at a local level.

Several of our Manuals and articles on our website address that.

And our experience has been that if we work up a case in this way, it is also likely that we will talk settlement – with a very good "hand" to play – rather than having to go into a Hearing or Court at all. That not only makes the process much quicker for the student and for the parent but also reduces costs enormously.

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The information on this website and article is educational and not intended to be legal advice. Reed Martin is an attorney with over 35 years experience in special education law. He can be reach through email at connie@reedmartin.com or www.reedmartin.com