Post Schaffer

Indeed, she said, "there is reason to believe that a great deal is already spent on IDEA administration, and Congress has repeatedly amended" the law "to reduce its administrative and litigation-related costs." Washington Post quoting Sandra Day O’Connor’s majority opinion

Jerry B. Weast, superintendent of the Montgomery County Public School System, called the court's decision "a victory for special education teachers in Montgomery County and across the nation who work hard everyday to provide the best possible education for students with disabilities."

He added, "We defended this case for one simple reason -- we didn't want our teachers and staff spending more time in the courtroom instead of the classroom."
Washington Post quoting Superintendent Weast.

The impact of today’s announcement of a Supreme Court decision in Brian Schaffer et al v. Jerry Weast could have dire consequences for millions of current and future special education students across the United States. The impact will be felt not only by those parents who are forced to or choose to file for due process but for all parents whose opinions might differ with school district personnel at the IEP table. For some, the impact will be swift and immediate. For others, the impact will creep into the IEP process for years to come. For all of us – the results will be that districts are further empowered to override and disregard our concerns. A process already warped in favor of school districts and state departments of education will tilt ever further in that direction.

How so? Firstly, districts will now have less fear of the idea of due process and being challenged legally by parents. The task of challenging district decisions will be ever more daunting as the prospects for parents of prevailing in those challenges have been greatly diminished. The costly venture of taking the district to court will need to be more carefully considered as the ability to prevail is weakened. As bold as districts can be and have been in the past, expect a several fold increase in this regard.

The remedies of students and their parents to districts being unfair and in reckless disregard for the welfare of our children are greatly curtailed. There will be either an unspoken grin or an outright gloat by case managers and directors nationwide when parents make reference to legal remedies – even more so than occurs today. It could evolve that due process ends up as nothing more than a bad joke.

It is not an exaggeration to state that IDEA was decimated by this decision. Law without legal remedy can drift into a state of ineffectiveness.

While legal scholars will no doubt have great opportunity to sift through the decision and provide analysis, it is none too soon for this attempt at a lay person’s response.

The Washington Post quote of retiring Justice O’Connor’s written opinion above makes reference to “Congress has repeatedly amended" the law "to reduce its administrative and litigation-related costs." So the long arm of powerful lobbyists of the teachers associations, directors associations, school board associations and professional associations that has held so much sway with the DC politicians with IDEIA 2004 has also impacted the majority decision against our children.

The moral of that story is that the courts are indeed subject to political influence – as much as they try to state otherwise. The other moral of that story is that when we stand down in face of devastating modifications to IDEA at the federal level – and when some of the advocacy organizations and local parent groups as well as thousands of special education parents turn their back on the effort to shape how IDEIA 2004 will be implemented in NJ – we create an environment where the only political influence the courts have to respond to is the influence of the well organized, politically unfettered and highly funded forces that aim to undermine the rights and protections for our children each time IDEA is reauthorized.

As for Weast’s comments that teachers “work hard everyday to provide the best possible education for students with disabilities” – that is pure fiction. Indeed the federal standard is “appropriate” public education – not the “best possible education”. It is too bad that the Washington Post did not go the extra mile to point out the legal fallacy in Weast’s quote.

[When the Supreme Court decided the Rowley case in 1981, the recently deceased chief Justice Rehnquist wrote the 6-3 majority opinion along the lines current chief Roberts suggested, interpreting the law to require aid that provides only "some educational benefit." The decision has been criticized ever since for giving school districts license to give only minimal help to special students -- a "Chevrolet versus Cadillac" approach, as several commentators describe it. The text of the US Supreme Court decision itself is available at http://www.wrightslaw.com/law/caselaw/ussupct.rowley.htm . ]

All is not lost though. The hope that is left is that parents recognize the contour of the road ahead and that we organize ourselves accordingly. In New Jersey, the IDEA 2004 petition drive to maintain protections and rights for our children is just such an effort. If you have not gotten on board yet, see http://StudentAdvocate-NJ.org .

The majority decision admits that it responded to the political winds that blow through congress to undermine and weaken legal protections under IDEA each time it is reauthorized. The struggles in congress are a very lopsided fight with powerful lobbyists financed by dues paying members with full political rights on one side, and hands full of 501 C3 and state funded advocates – with no political rights - and some independent advocates and parents on the other.

The best response would be to overwhelm the state of New Jersey with tens of thousands of comments during the pre-proposal public comment period of December 19 to January 18. We need district coordinators to collect petition signatures and more importantly, signed personal letters – we need to stuff the comments box with an unprecedented number of comments. We also need to mobilize for full participation in the December 21 public hearing in Trenton. See:

High Court Rules Against Parents in Md. Special Education Case

By Fred Barbash and Lori Aratani
Washington Post Staff Writers
Monday, November 14, 2005; 2:11 PM

The Supreme Court, using a Montgomery County, Md., case to resolve a long-running, hotly contested national dispute, ruled today that the nation's school systems are not legally obliged to prove the adequacy of individualized educational programs set up for disabled children.

Rather, the court said, it is up to individual parents, when dissatisfied, to demonstrate a program's inadequacy.

The 6-2 decision, which settled a split in the federal courts, was a major blow to parents' advocacy organizations, which argued that most families are not financially able to bear the burden of persuasion when going up against a board of education or a school superintendent. School officials across the country similarly contended that their resources would be drained by having to meet each challenge with a showing of adequacy.

The Individualized Education Program (IEP) is a blueprint for the services a special education student will receive as mandated by the Individuals with Disabilities Education Act (IDEA). Parents unhappy with the program -- and there are many thousands at any one time across the country -- may challenge it before an administrative law judge. But the law is silent on which party, the parent or the schools, has the burden or proof.

Justice Sandra Day O'Connor, writing in a 6-2 decision, said ordinarily the burden lies "where it usually falls, on the party seeking relief," in this case, the parents.

She said the court saw no reason to depart from this "default" position. The law, she said, does not support the argument that "every individualized educational program should be assumed to be invalid until the school district demonstrates that it's not."

Joining O'Connor were Justices John Paul Stevens, Antonin Scalia, Anthony M. Kennedy, David Souter and Clarence Thomas. Chief Justice John G. Roberts Jr., whose former law firm helped represent the Montgomery County schools in the case, did not participate. Justices Ruth Bader Ginsburg and Stephen Breyer dissented, saying the majority's decision ran contrary to the purpose of the act.

He added, "We defended this case for one simple reason -- we didn't want our teachers and staff spending more time in the courtroom instead of the classroom."

Michael Eig, the attorney for the family that sued the school system, said, "We're disappointed."

Today's case, Brian Schaffer et al v. Jerry Weast , concerned the educational services that were due under the law to Brian Schaffer, who suffers from learning disabilities and speech-language impairments.

The process for developing an IEP is supposed to be collaborative, but can turn combative when parents and the school system disagree on what is best for a child. Traditionally, the party that challenges the appropriateness of an IEP must prove in an administrative hearing why it is flawed. The Schaffer case sought to challenge that notion.

In the Schaffer case, attorneys argued that the school system -- with all its expertise and resources -- was best positioned to bear the burden of persuasion, rather than the parents, who lack access to similar resources. Parents of special education students hoped a ruling in favor of the Schaffers would give them more influence in the IEP process.

But school systems feared that a ruling for the Schaffers would force them to spend more money in court than in the classroom. Lawyers for Montgomery County Public Schools said that placing the burden on the school system would create the presumption that all IEPs were flawed from the start. It also would give parents less incentive to work collaboratively with the school system, they argued.

Jocelyn Schaffer said she and her husband knew early on that Brian had learning difficulties. He was slow to begin speaking and preferred to communicate using hand gestures and motions. Unlike many young children, he didn't like to color or draw and had difficulty sitting still. But he excelled at physical pursuits and was able to ride a bike by the age of 3, his mother said.

When he was 2, the Schaffers hired a speech therapist to work with their son, and when he was old enough for kindergarten, the Schaffers chose Green Acres, a small private school in Rockville where the emphasis was on hands-on learning. He liked the school but struggled academically. By seventh grade, administrators recommended that the Schaffers find another program for Brian.

The family turned to the public schools. But from the very first meeting in February 1998 to develop an education plan, the school system and the Schaffers disagreed on Brian's diagnosis.

The Schaffers' experts said Brian had a "unique central auditory processing deficit" and required placement in a self-contained, full-day special education program.

The school system's experts diagnosed him with a "mild speech-language disability" and recommended a setting where Brian and other special education students would take regular classes, but would have an aide to help them with lessons. In addition, Brian would get 45 minutes each weekof small-group speech therapy and 45 minutes of reading and writing support every day in a special education classroom.

When the Schaffers expressed concern that the classes at his middle school were too large, the school system recommended a second school not far from the family's home that had smaller classes.

The Schaffers declined the placement and in September 1998, enrolled their son at the private McLean School. They filed a complaint against the school system challenging Brian's education plan, saying it did not meet their son's needs and seeking reimbursement for the private school tuition.

An administrative law judge said the facts were evenly balanced but ruled for the school system because, he said, the parents "bear the burden of persuasion."

The Schaffers appealed to U.S. District Court in Maryland, which sent the case back to the administrative law judge with instructions to reconsider the case with the burden of proof on the school system, and that caused the judge to reverse his ruling.

The District Court rejected an appeal by the school system, which then appealed to a three-judge panel of the 4th Circuit, which ruled 2-1 in favor of Montgomery County.

The parents, O'Connor wrote today, "in effect ask this Court to assume that every IEP is invalid until the school district demonstrates that it is not. The Act does not support this conclusion. . . . The burden of proof in an administrative hearing challenging an IEP is properly placed upon the party seeking relief."