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Viewpoint: The Burden of Deciding

Who Has The Burden of Proof
April 23, 2007

By Gary S. Mayerson, Autism Speaks Board Member,
Founding Partner, Mayerson & Associates

In Shaeffer v. Weast, the newly constituted Supreme Court is considering an issue that goes right to the heart of procedural and substantive due process rights:

When parents of children with disabilities and school districts are at loggerheads over the “appropriateness” of the school district's educational program, which side bears the burden of proving that issue at the administrative “due process” hearing that is invoked for the purpose of deciding that issue?

The recently reauthorized federal Individuals With Disabilities Education Improvement Act, or IDEA, is entirely silent on the issue. Against the statutory silence, there is a split among the various judicial circuits and even within circuits as to which side bears the burden to prove the appropriateness (or inappropriateness) of the school district's educational program.

In New York, for example, courts have placed the burden of proof squarely on the school district. In neighboring Connecticut, a state that also happens to be situated in the Second Circuit Court of Appeals, the burden of proof is placed on the parents.

School districts uniformly argue that parents, as the party contending that the educational program is not appropriate, should bear the burden of proof. Plaintiffs in “regular” lawsuits have that burden, they say, so why shouldn't parents?

Parents at disadvantage at IDEA hearings

There is, however, a significant distinction. In “regular” lawsuits, parties have access to significant pre-trial discovery in the form of depositions, interrogatories, and document requests. With this pre-trial sharing of evidence, the playing field is leveled, with neither side enjoying an undue informational advantage over the other.

Due process administrative hearings brought pursuant to the federal IDEA statute, however, typically do not involve much, if any, pre-hearing discovery, as such proceedings are intended to be streamlined. Parents attending these administrative hearings often are at a distinct informational disadvantage.

In such a case, the parents may well be entirely clueless as to what is actually going on once their child goes through the schoolhouse door. These parents would be well within their rights to initiate due process and demand that the school district explain how and why their child is coming home with injuries.

Take, for example, the case of a child with autism who repeatedly is coming home from school with bruises and welts, and regressing behaviorally. The parents may surmise that the school district is improperly restraining their child, and not providing an appropriate education. Perhaps there is a well-meaning, but inexperienced and untrained aide who is at the root of the problem. Perhaps a schoolyard bully is terrorizing the child at lunch or recess.

How could such parents, however, possibly be saddled with the burden of proof? It would be manifestly unfair to require parents in this position to establish facts over which they have no control. The school district, on the other hand, has or certainly should have access to and control over the information and evidence going to the appropriateness issue. When all the chickens in the chicken coop are discovered to be missing, it is entirely appropriate to demand that the fox put in charge of guarding the chicken coop explain what happened.

Placing burden on schools would encourage settlement

There is another, more practical public policy consideration that the court needs to consider. In “regular” litigation, the overwhelming majority of cases will settle prior to trial. It is important for our society that most cases settle, because if they did not, the system would become even more overburdened and delayed with cases that would have to be tried and adjudicated.

This important public policy consideration is no less applicable in administrative due process hearings brought under the IDEA statute. Having tried IDEA cases in more than two dozen states, I have noticed that an interesting phenomenon often occurs in those states where parents have the burden of proof. The school district's attorney, knowing that the parent must spend a few days putting on his or case, often will sit back and do little, if any, pre-hearing preparation until the case has proceeded for a few days.

By the time that the school district gets ready to put on its case, the parties are typically too entrenched to reach a settlement, even if the school district's counsel concludes that the school district does not have much of a case and the parent is asserting meritorious claims.

In those states where the school district has the burden of proof, settlement prospects are greatly enhanced. Where the burden is on the school district to put on its case first, the school district's counsel has done his or her due diligence sufficiently in advance of the hearing.

Perhaps the Supreme Court will remand the burden of proof issue, or decide that this issue is best left to Congress to decide, ostensibly by a further amendment to the IDEA. Perhaps the court will conclude that the current state-by-state system is working well enough, and leave it to the states to regulate.

Whatever the court decides, it is essential that it not inadvertently skew the playing field by a wooden rule that fails to take into account the informational advantage that school districts have whenever they assume custody and control over children and their educational programs.

Also see a news analysis on the Schaffer v. Weast case here.

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