Overview
The Individuals with Disabilities Act
(IDEA 2004) requires that all children included in the
Act (i.e., eligible children) be provided with access to
a free appropriate public education (FAPE), including necessary
related services, in the least restrictive environment (LRE). 20
U.S.C 1400, et seq. From the statute’s initial
implementation in 1975 until now, the courts (federal and state)
have been busy with a variety of special education cases,
because Congress did not clearly define all aspects of the law.
Alexander and Alexander (2005) What is clear, however, is that
“IDEA requires that special education services provided pursuant
to the statute be ‘provided at public expense,’ 20 U.S.C. 1401
(8)(A) and ‘at no cost to parents,’ 20 U.S.C. 1401 (25). Thus
parents cannot be required to pay for any part of the special
education of their children.” Weber, Mawdsley, and Redfield
(2004) However, the law also is clear that “local education
agencies (LEAs) have no responsibility to pay for special
education and related services on-site in private schools where
parents have elected private placements for their children,
provided that the public agency has made FAPE available at its
public site.” Weber, Mawdsley, and Redfield (2004)
One result of the continuous stream of
litigation over the past quarter century is a sustained
strengthening of the rights of parents in the decision-making
process. As the United States Supreme Court opined more than
twenty-years ago, this Act has become the exclusive avenue
through which parents assert equal protection claims to publicly
financed special education programs for their children. Smith
v Robinson (1984) Regarding the accomplishments of
the past twenty-five years, Mark Weber has observed, “One of the
central innovations of the special education law, and a key to
its success, is that it empowers parents to participate in
designing programs for their children and to challenge school
district decisions about educational services and placement.”
Weber (2005)
The IEP: Key to Educational Benefit.
In the early literature experts referred to
the IEP as a “cornerstone” and “management tool.” Hayes
and Higgins (1978) Five years after IDEAs implementation (as the
Education for All Handicapped Children Act of 1975), the
United States Court of Appeals for the Third Circuit Court
characterized the IEP, as the “heart” of the new law.
Battle v Pennsylvania (3rd Cir.
1980) In my opinion the IEP (Individualized
Educational Program) remains the essential and indispensable
element of IDEA 2004. It captures the spirit of the law,
breathes life into its intent, and facilitates its
implementation.
A team created written plan, an IEP
is tailored to the unique needs of an eligible child. Intended
to produce educational benefit, Board of Education v
Rowley (1982), an IEP contains all aspects (academic,
social, developmental, and functional) of the child’s free
appropriate public education (FAPE); including necessary
related services, and the site (LRE) where the program
will be delivered. IDEA 2004 mandates that (1) parents
sign the IEP, (2) all future adjustments in the plan
must be acceptable to parents, and (3) local education
agencies (LEAs) provide, free of charge, the agreed to
special education and related services. Vacca and Bosher (2003)
Related IEP Issues.
Over the past twenty-five
years, IEPs have been the source of numerous complaint filings,
due process hearings, mediations, and court cases. Generally,
the recorded causes of IEP
disputes between parents and school officials can be placed in
the following categories: allegations of (1) improper committee
composition, (2) improper development procedures, (3) timeline
violations, (4) omissions of required sections, (5) teaching
methodologies and/or related services not being provided as
specified, (6) unnecessary delays in reaching targeted goals,
and (7) financial obligations not being met. Vacca and Bosher
(2003) There also have been recent disputes where parents have
challenged the appropriateness of their child’s placement.
L.B. v Nebo School District (10th Cir.
2004) In these cases parents allege that the public school,
classroom, or program do not meet the least restrictive
environment (LRE) requirement of IDEA. De Vries v Fairfax
County School Board (4th Cir. 1989)
Because judges are reluctant to interfere in such matters as
IEP team discretion and
decision-making, and subsequent student program placement
decisions, most disputes are settled through alternatives to
litigation. However, in special education disputes that go to
court judges consistently apply the traditional analysis found
in Karl v Board of Education (2nd Cir. 1984).
In Karl the judicial review was limited to the
procedural aspects of the case.
Beginning in the 1990’s, however, some judges broke with
tradition and began to probe the substantive aspects of a case.
This change in judicial attitude came on the heels of the United
States Supreme Court’s benchmark decision in Florence County
School District v Carter (1993). In Carter the
primary issue before the high court was not procedural. It
involved the “appropriateness” of the student’s IEP
goals.
Parent Challenges to FAPE
Beginning in the early 1980s, some parents
dissatisfied with their child’s individualized educational
program (IEP) and/or placement unilaterally took their
child out of the public school setting and enrolled him or her
in a private school. Claiming a denial of FAPE, these
parents turned around and demanded that the local school system
(LEA) pay the tuition and costs of the private school
setting. More often than not, litigation was spawned when the
public school system denied the request. Where such situations
went into court, the judge was faced with the daunting task of
determining, by virtue of the evidence presented and the
arguments of the attorneys, whether or not the educational
program and services provided in the public school setting
satisfied the FAPE requirements for that particular
child. If FAPE requirements were being met in the public
school setting the parents’ request for payment of tuition and
costs was denied.
The Burlington Standard. It is
settled law that parents cannot expect (i.e., are
not entitled to) automatic reimbursement for a private school
placement of their choice. The standard relied on by judges to
determine whether or not parents are entitled to reimbursement
for expenditures incurred was crafted by the United States
Supreme Court in Burlington School Committee v Department of
Education (1985). In resolving the dispute a court asks the
following questions: (1) Is the public school system’s placement
of the child pursuant to his/her IEP appropriate? (2) Is
the private school placement desired by the parent appropriate?
If the answer to the first question is “No,” there is no need to
move to the second question, and a public school system (LEA)
can be ordered by the court to reimburse parents for tuition and
costs. Cypress-Fairbanks I.S.D.v Michael (5th
Cir. 1997) This order can include retroactive reimbursement as
well.
Until this past year, a disconcerting
factor in FAPE cases involved the question of which party
carried the burden of proof. In 2005, the United States Supreme
Court answered the question.
The United States Supreme Court Speaks:
Schaffer v Weast (2005)
On writ of certiorari to the United States
Court of Appeals for the Fourth Circuit, the United States
Supreme Court decided Schaffer v Weast (2005), a case
that involved the Montgomery County, Maryland, Public School
System. The question presented in Schaffer is which party
bears the burden of proof in due process hearings initiated
pursuant to section 1414(f) of IDEA?
The Facts. Brian Schaffer was
enrolled in a private school when he was diagnosed with a
non-severe learning disability. Contacted by Brian’s parents,
the Montgomery County Public Schools developed an IEP for him.
Even though Brian’s parents were involved in the development of
the IEP they rejected it. Ultimately the parents filed a due
process complaint against the school system and asked for
tuition reimbursement from the school system. Initially an
administrative judge held for the school system. Brian’s parents
next went to a federal district court where the judge held that
the burden of proof should have been placed on the school
officials. On remand, the administrative judge held for the
parents and ordered the school system to reimburse the parents.
An appeal was taken to the United States Court of Appeals for
the Fourth Circuit, where the district court was reversed.
Citing IDEA 1415(f), the Fourth Circuit held that the burden of
proof should be on the party initiating the action. 377 F.3d 449
(4th Cir. 2005) Subsequently, the United States
Supreme Court granted certiorari. 125 S.Ct. 1300 (2005)
The Opinion: In an opinion written
by Justice Sandra Day O’Connor, the majority relied on and
reiterated the customary federal rule that the party that
initiates the hearing and seeks relief bears the burden of proof
in that proceeding. In doing so, the majority placed the burden
directly on the parents in the Schaffer case. “ If
parents believe their child’s IEP is inappropriate, they may
request an impartial due process hearing.” But, stated Justice
O’Connor, “[t]he Act is silent, however, as to which party bears
the burden of persuasion at such a hearing. We hold that the
burden lies, as it typically does, on the party seeking relief.”
Schaffer v Weast (2005)
It should be pointed out to the reader that
the Supreme Court majority left the legal door ajar when it
suggested that the Schaffer decision does not preclude
states from assigning the burden of proof through the
application of existing statutes, or through the enactment of
new statutes. It therefore behooves the reader to look to
appropriate state law for guidance.
Policy Implications
There is little doubt that FAPE
disputes will continue to spring up in communities across this
nation. Parents of students with educational disabilities who
are dissatisfied with their child’s IEP and/or placement
likely will challenge local school officials both through the
administrative process and through litigation.
While the Schaffer decision
undoubtedly will have a positive impact on the confidence level
of local public school officials, administrators, and
professional staff, the implications for local school system
policy remain clear. What follow are some suggestions to
consider as existing policies are revisited and new policies are
considered. Policies must make it clear that:
- The
intent of the school board, administration, and staff is to
work toward meeting the specific needs of eligible students
with educational disabilities.
- The
intent of the school board, administrators, and professional
staff is to comply with and implement federal and state
special education law and regulations.
- Parents
of students with educational disabilities will be involved
in all phases of their child’s educational program.
- All
decisions involving identification, evaluation, program
development, placement, and assessment of students with
educational disabilities will be based on substantive,
valid, reliable, and up-to-date information (e.g.,
educational, social, medical, psychological).
- The
school system will, when the specific case requires,
cooperate with other community agencies and professionals to
provide access to educational opportunities appropriate to
the student involved and designed to produce an educational
benefit for that student.
- Where
parents and school officials cannot agree on the educational
plan and placement of a student, the board initially will
seek to resolve the dispute through non-adversarial means
such as mediation.
A final postscript must be added. The
burden of proof has two parts. First, there is a burden
of production (i.e., a burden to produce evidence).
Second, there is a burden of persuasion (i.e.,
a burden to persuade the hearing officer or judge by a
preponderance of the evidence produced). Sound procedures and
solid evidence remain the foundations on which successful cases
are built.
References Cited
Alexander, Kern, and Alexander, M. David,
AMERICAN PUBLIC SCHOOL LAW, Sixth Edition (West 2005)
Battle v Pennsylvania, 629 F.2d 269 (3rd
Cir. 1980)
Burlington School Committee v Department of
Education, 105 S.Ct. 1996 (1985)
Cypress-Fairbanks I.S.D. v Michael, 118
F.3d 245 (5th Cir. 1997)
De Vries v Fairfax County School Board, 882
F.2d 876 (4th Cir. 1989)
Florence County School District v Carter,
114 S.Ct. 361 (1993)
Hayes, J., Higgins, S.T., Issues
Regarding the IEP: Teachers on the Front Line, 44 Except.
Child. 267 (Jan. 1978)
Individuals with Disabilities Education
Act, 20 U.S.C. 1400, et seq. (2004)
Hendrick Hudson Central School District v
Rowley, 438 U.S. 176 (1982)
Karl v Board of Education, 736 F.2d 873 (2nd
Cir. 1984)
L.B. v Nebo School District, 379 F.3d 966
(10th Cir. 2004)
Schaffer v Weast, 377 F.3d 449 (4th
Cir. 2005), cert. granted, 125 S.Ct. 1300 (2005)
Schaffer v Weast, 546 U.S. __ (2005)
Smith v Robinson, 468 U.S. 992 (1984)
Vacca, Richard S., and Bosher, William C.,
Jr., LAW AND EDUCATION; CONTEMPORARY ISSUES AND COURT DECISIONS,
Sixth Edition (LexisNexis 2003)
Weber, Mark, Litigation Under the
Individuals with Disabilities Education Act After
Buckhannon Board of Care Home, Inc. v West Virginia
Department of Health and Human Services, 65 Ohio
State Law Journal 357 (2005)
Weber, Mark, Mawdsley, Ralph, and Redfield,
Sarah, SPECIAL EDUCATION LAW: CASES AND MATERIALS (LexisNexis
2004)
Richard S. Vacca
Senior Fellow CEPI
Note: The views expressed in this
commentary are those of the author. |
