Susan's Blog

Monday, November 14, 2005

Supreme Injustice

Today’s Supreme Court ruling of 6-2 in favor of the school system vs. a family with a disabled child is a real blow to all families living with disabled children. The Court ruled that the burden of proof of inadequate services rests with the family. (See below for article from the Washington Post.) The IDEA had not stated this explicitly but now our highest court has interpreted it thus. What is likely here is that things will get harder for SPED (Special Education) families. Families who already are struggling to do best by their children, to help them succeed in an increasingly complex and demanding world will now have to decide how much more they can take, how much they are willing to fight their school system for their disabled children’s education. This is a fact; things will now be even harder for disabled families and that is not fair. That is not justice. Many families will opt not to fight for better services because they do not have the resources to take their school system to court AND prove that the services were inadequate. School systems keep legal teams on payroll for any problems that come up. Most parents do not. That is an inequity. The school system is the have, the parents, the have-not.

Perhaps some are rubbing their hands together in glee, thinking, “great, fewer lawsuits!” Well, it is not that simple. Some of the most important movements in history were born or resolved with lawsuits. (Brown V. Board of Education, Roe V. Wade, the Scopes trial, for example). School systems, however taxed they may be to come up with the funds to pay for education, do not face the same kind of pain and difficulty that the families themselves face and for that reason alone the Court should have ruled in favor of the families. If the Court feels the need to address the resource-strained school systems, then they should turn their attention to a Congress that has NEVER once fully funded the IDEA since it was passed, and to an Administration that calls itself pro-family but consistently cuts programs that help families, including Title 1 and even the highly vaunted ESEA, otherwise known as No Child Left Behind.

There will be plenty of children left behind now, thanks to this despicable group of InJustices. Where is the “compassion” for children?

From The Arc of the United States

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.”

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.”

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.

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.”

Michael Eig from the law offices of Thomas J. Lavin, 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 speci
al 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.

© 2005 The Washington Post Company

1 comment

I have a child who is autistic and I was hoping that the family would win. I feel that this is financial tactic by the courts. There is over-representation of poor and middle class students with IEPs. I feel that with this ruling that they won’t have a fair voice.

— added by QueenAnne on Monday, November 14, 2005 at 10:09 pm