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Parents who claim that their local school district has not met the special educational needs of a disabled child bear the burden of proving a violation of the Individuals With Disabilities Education Act in administrative appeals, the 4th U.S. Circuit Court of Appeals ruled on July 29. Weast v. Schaffer, No. 03-1030. In so ruling, the 4th Circuit joins the 5th, 6th and 10th circuits. The 2d, 3d, 8th and 9th circuits, on the other hand, place on the school district the burden of proving that its actions meet the requirements of the act. The D.C. Circuit put the burden on the school district in a 1985 case, McKenzie v. Smith, 771 F.2d 1527. But that decision emphasized the importance of the act’s procedural mechanisms, and left unclear how the D.C. Circuit would rule when presented with a substantive challenge, according to 4th Circuit Judge James H. Michael Jr., who wrote the opinion for the Weast panel. Individualized education In 1997, Jocelyn and Martin Schaffer asked the school district of Montgomery County, Md., to evaluate their son Brian, who suffered from Attention Deficit Hyperactivity Disorder and other learning disabilities, for special education services. Under the act, the school district could either draw up an Individualized Educational Plan (IEP) that would meet Brian’s unique needs or pay for his tuition at an appropriate private school. The district proposed an IEP that called for Brian to be placed in a school with small class size and for about 16 hours of special instruction each week. In 1998, the Schaffers informed the district that they considered the IEP inadequate, placed Brian in a private school and began the administrative appeals necessary to force the district to modify its plan or to pay for his private-school tuition. A Maryland administrative law judge assigned the burden of proof on the Schaffers on the ground that “deference is owed to education professionals in the substantive design of an IEP,” according to Michael’s opinion. Though conceding that it was a close question, the judge ultimately ruled against the Schaffers, saying that the burden of proof tipped the balance against them. Michael noted that the 5th and 10th circuits agree with the Maryland judge that the burden properly belongs on parents because of the deference owed to education professionals. The 4th Circuit panel reached the same result, but for a different reason. “When a statute is silent, the burden of proof is normally allocated to the party initiating the proceeding and seeking relief,” Michael wrote. The panel saw no reason to depart from rule in the case at hand. Michael acknowledged that other circuits have put the burden on districts because of the limited resources of parents. But he said, “We do not automatically assign the burden of proof to the side with the bigger guns.” He added that the act had many built-in procedural mechanisms that benefit parents. In dissent, Judge Michael Luttig suggested that the majority may underestimate the daunting task parents face because in the case at hand, the Schaffers had shown themselves quite capable of standing up for their son’s rights. Luttig argued that the burden belonged on the district because the act imposes on it not only the duty to refrain from discriminating against the disabled, but also “imposes an affirmative obligation . . . to provide disabled students with an enhanced level of attention and services.” Young’s e-mail is [email protected].

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