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High Court Hears Crucial IEP Case

April 23, 2007

When a school district and the parents of a child with special needs — such as kids with autism — can't agree on how the student will be taught under an individualized education plan, who then is responsible for proving that so-called IEP is or isn't good enough?

That's the question in the closely watched Schaffer v. Weast case that has wound it way through the judicial system all the way up to the Supreme Court, which heard oral arguments on Oct. 5. It is not clear how or when the justices will rule on the case, which both sides hope could offer a definitive ruling on a fundamental question that will have wide-reaching effects on the education of children with disabilities.

The origins of the case

The suit has its origins in a law that took effect back in 1973. According to the Individuals with Disabilities Education Act, or IDEA, school districts must provide “free and appropriate public education” to all students, regardless of their physical, mental and emotional challenges, in what's described as a “least restrictive environment.”

It all seems simple enough, until the definition of an “appropriate” education arises, which it did 24 years later, when the seeds for Schaffer v. Weast were planted.

In 1997, Jocelyn and Martin Schaffer, parents of Brian, a student living in Rockville, Md., were told by staffers at their son's private school that they could no longer tend to his specific needs. Brian was suffering from attention deficit hyperactivity disorder and other learning disabilities associated with the disorder.

The family then turned to the Montgomery County Public Schools, their local school district. But conflict ensued soon after when school officials agree to enroll Brian but refused to put in place a handful of recommendations his private school teachers about how he needed to be taught. A number of requests from the Schaffers about additional special services were also denied.

Both sides disagreed on not only the kinds of educational support Brian needed, but on his actual disabilities as well, with each hiring its own expert to evaluate his skills. One found Brian to have had problems filtering information he heard, and recommended a much more intimate classroom setting, one that school district may have been unable to meet. The other, a consultant hired by the schools, said Brian's speech and language deficiencies were “mild,” and that the inclusive model the school district embraced would work perfectly well.

Soon after, the Schaffers enrolled Brian in another private school and sought reimbursement from the Montgomery County Public Schools, which refused to pay for Brian's tuition, saying that he would have received an appropriate education had the IEP that was offered been implemented.

The result: An educational tug-of-war became an all-out battle, ultimately to be decided in the courts.

Time and again, the question arose: Which side should provide evidence that the IEP wasn't adequate? While Brian eventually enrolled in the local schools and graduated from them, the Schaffers continued their fight, in part to help others.

"So many parents can't afford to enter this legal process," Jocelyn Schaffer told WTOP, a Washington, D.C.-area radio station in an on-air interview. "So many parents can't afford an alternate program outside of public schools."

Courts, Government At Odds Over Burden

The IDEA doesn't outline who carries the burden of proof if an IEP is challenged. And the courts have set contradictory precedents, with some supporting the school's contention that parents need to be the ones responsible, and others deciding just the opposite.

The government, too, appears to be all over the map on this issue. In 2000, federal government lawyers filed a brief stating that Congress intended for the school to take “the lead in formulating the IEP and that parents have a meaningful opportunity” to participate in determining the special education and related services to be provided to their child.

But then in 2005, U.S. attorneys filed another brief on a similar case that basically said otherwise, placing the responsibility squarely on the parents' shoulders.

Also uncertain, and up for question in Schaffer v. Weast, is the definition of the vaguely worded “appropriate public education.” What makes for an “appropriate” program, and who gets to weigh in on its propriety? The Schaffers, like many other parents, believe that they -- informed by Brian's doctors, former teachers and therapists -- know what works best for him. The school district disagrees.

Parties see the stakes as enormous

If the high court agrees with the school district, parents of children with disabilities and their
supporters will likely be in an uproar. They contend that parents of children with disabilities are already overburdened enough without having to take on the additional effort, not to mention expense, of trying to show that an IEP doesn't meet its obligation.

“[School districts] have greater expertise and resources than the average parent, not withstanding the fact that school districts were responsible for preparing the IEP in question to begin with,” argues Anna Weselak, president of the National Parent Teacher Association based in Chicago, which backs the Schaffers. “We believe that most school districts truly have the best interest of all children foremost in their minds, but in times of contention between the school and parent, especially when it relates to the complicated requirements found in the IDEA, we think it is unrealistic and unfair to require any parent to bear the burden of proving the appropriateness of an IEP.”

Martin Gould of the National Council on Disability in Washington, D.C., worries that a ruling against the Schaffers will create a “chilling effect,” meaning parents won't feel comfortable questioning an IEP even though they may not be satisfied with it because of the financial and legal repercussions of doing so.

Still, those who side with the school district argue that the suit is merely an attempt for the Schaffers to get the public schools to pay for their decision to enroll Brian in a private school, even though the IEP the local schools presented him offered an “appropriate” education.

School district backers express concern that if a decision falls the Schaffers' way, the financial load schools for schools could be prohibitive if parents choose to sue districts over IEP disagreements. According to the National School Boards Association in Alexandria, Va., which supports the Montgomery County Public Schools, litigation costs nationwide already were a staggering $147 million from 1999 to 2000 alone.

During oral arguments, Justice Stephen Breyer told William Hurd, lawyer for the plaintiffs, “I've never seen a case where someone challenging an agency does not have the burden of proof,” suggesting that the task appears to naturally fall on the parents since they're the ones who disagree. Whether the Court will eventually support this argument is anyone's guess.

The Supreme Court may simply choose to remand the case to the lower courts, extending the time both sides have to wait before an authoritative ruling is finally in place. In the meantime, children under these circumstances will continue to rely on agreement between both their parents and their local school districts to makes their schools a place to thrive academically and socially even as they struggle with their individual challenges.

- Contributed by S. Jhoanna Robledo

Also read an opinion by Autism Speaks Board Member Gary Mayerson.
And for more on the Schaffer v. Weast case, visit

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