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Viewpoint: The Discriminatory “Burden” Conflict That Congress Must Now Resolve

April 23, 2007

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

For our full coverage of Schaffer v. Weast, click

On Nov. 14, the Supreme Court held in a 6-2 decision in Schaffer v. Weast that parents of special needs children who challenge the appropriateness of their child's education plan under the federal Individuals with Disabilities Education Act (“IDEA”) have the ultimate “burden of persuasion” in due process hearings.

The high court held that “absent some reason to believe that Congress intended otherwise, the Court will conclude that the burden of persuasion lies where it usually falls, upon the party seeking relief.”

It certainly is true that the IDEA statute (originally enacted in 1975 as the Education for All Handicapped Children Act) is utterly silent as to which party bears the burden of persuasion in administrative “due process” hearings commenced under the IDEA. Similarly, IDEA is silent as to which party has the initial burden to “go forward” at the due process hearing.

However, it is erroneous to conclude that there is no evidence of Congressional intent on the issue of whether school districts have the burden to affirmatively account for the appropriateness of their educational programs. In point of fact, there is very recent evidence that this is precisely what Congress has intended -- for all children.

Congress' stated purposes in enacting the No Child Left Behind act (“NCLB”) include “…holding schools, local educational agencies [school districts] and States accountable for improving the educational achievement of all students” and “improving and strengthening accountability.”

Under NCLB, school systems that affirmatively comport with heightened accountability standards reap economic rewards. Funding priority is given to those school districts that affirmatively demonstrate (via filings and other reporting) that funds are being used properly. On the other hand, there are significant economic sanctions for those school districts that fall below the mandated statutory standards of accountability.

Justice Stevens, in his concurring opinion in Schaffer, reasoned that “we should presume that public school officials are properly performing their difficult responsibilities under this important statute.” Congress, however, presumed precisely to the contrary by enacting NCLB. Congress was keenly aware that once a child is taken behind the schoolhouse doors, the school district has the informational advantage.

The enactment of NCLB, and its reporting and filing burdens, was thus Congress' express acknowledgment that our children fail to succeed because of the absence of school district accountability

How ironic then, as well as discriminatory, that children without disabilities are automatically protected by the affirmative burden and accountability standards of NCLB, while children with disabilities are now saddled with the affirmative “burden of persuasion.”

The untenable result of the Supreme Court's decision in Schaffer is that the very group that needs the most accountability from the school system now has the least! In order to provide a level playing field, the burden of proof should be placed squarely on the party having the informational advantage.

The solution is a legislative one. Congress should amend this unhelpful gap in the IDEA statute to conform to the burden of accountability imposed by NCLB.

Note: Gary S. Mayerson is the founder of Mayerson & Associates, a Manhattan-based law practice dedicated to representing children with autism and other related disabilities in IDEA-based educational rights disputes. To date, Mayerson and his staff have represented children in more than 30 states, as far away as Alaska. Attorney Mayerson has testified before Congress on the subject of the IDEA statute and is the author of “How To Compromise With Your School District Without Compromising Your Child.” Attorney Mayerson's recent winning decision in Deal v. Hamilton County Board of Education, 392 F.3d 840 (6th Cir. 2004), cert. denied, ____U.S.____(10/11/05) was cited by Justice Ginsburg in her dissenting opinion filed in Schaffer.