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Beast of Burden

You may look at the title and think you’ve accidentally wandered onto a blog about pack animals.  No, don’t worry, you’re in the right spot.  I’m not talking about actual beasts of burden, but rather the beast of the burden of proof in special education disputes and how to overcome the beast that it is (or how school districts and hearing officers interpret it to be).

IDEA does not say who bears the burden of proof (“BOP”) in special education disputes between parents and school districts.  However, BOP is a critical legal issue in litigation.  In simplest terms, the BOP means who has to prove their case and how strong the proof needs to be.  Most people are familiar that in criminal cases, the prosecution has to prove the guilt of the alleged defendant “beyond a reasonable doubt.”  In civil cases, the standard of proof is not that high and is typically “by a preponderance of evidence.”

In 2005, the U.S. Supreme Court decided the case of Schaffer v. Weast.  That case says that when a parent challenges an IEP, the parent has the burden to prove that the IEP is not appropriate for the child with a disability in the special ed context.  So, this means the parent must put on a strong case to convince the administrative hearing officer that the IEP is either poorly designed or improperly implemented for the child.  This is a difficult proof.

As a result of the Schaffer v. Weast case, most people in the special education legal arena assume that the parents always have the BOP, probably because it is usually the parents challenging an IEP.  But the BOP is not always on the parents and recently this has become a very important issue.  One example is when parents demand an Independent Educational Evaluation (“IEE”) of the child with a disability at the public school’s expense after rejecting the school’s evaluation, the school has two options: (1) pay for the IEE or (2) file a Due Process case.  If the school files for Due Process to defeat an IEE, the school district bears the BOP.

Another example is placement of a child with a disability and here is the recent critical trend.  A school district always bears the BOP that it is in compliance with IDEA.  A Prior Written Notice (“PWN”) is required whenever a school proposes to change the placement of a child with a disability.  20 U.S.C. §1415(b)(3).  A PWN must include at least a description of the proposed change in placement by the school district, an explanation of why the school proposes to change the placement and the basis for such explanation, and a statement that the parents of a child with a disability have the right to challenge such action. 20 U.S.C. §1400(c)(1).

Now, if parents seek to change placement of the child with a disability (usually from the public school to a private school that the parents believe is more appropriate), the parents are always entitled to pay for such private placement out of their own pocket.  If the parents want the school district to pay for the private placement, they will have to file for Due Process and prove that the public school did not provide a Free Appropriate Public Education (“FAPE”) to the child and that the private school is more appropriate.  34 C.F.R. §300.148(c); see also Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 129 S.Ct. 2484, 2493, 2496, 174 L.Ed.2d 168 (2009).

Here comes the tricky part to which I want you to pay close attention.  Let’s say the parents have done that.  They’ve taken on the school district and met their BOP that the school did not provide FAPE to their child with a disability and that placement in the private school is appropriate, so the administrative hearing officer or judge has said the public school has to pay for the private school.  Let’s assume that a week after the parents have won that case, the school calls another IEP meeting and wants to change placement of the child back to the public school.  Do the parents now have to bear that beast of burden of proving once again that the school does not provide FAPE and the child should remain at the private school?  Is that fair?

Well, I argue it is not.  And in my brief recently filed in the 9th Circuit case of J.M. v. Department of Education, State of Hawaii, Case No. 16-17327, I argue that the parents in that exact scenario should not again have the BOP immediately after they have won the private placement case.  Cross your fingers that this becomes good law for parents who are fighting this same tactic by school districts across the country.

If you have questions about burden of proof in special education cases or need any assistance with your child with a disability, please contact us via our website schoolkidslawyer.com or via email at info@schoolkidslawyer.com.

Parents IEP Bill of Rights #KnowYourRights

If you are a parent of a child with a disability, READ UP! This is YOUR Bill of Rights for your child’s IEP:

  1. Your child is entitled to a Free Appropriate Public Education (FAPE) as provided by an IEP.
  2. An IEP must be in place at the beginning of each school year your child is eligible for special education.
  3. An IEP must be reviewed by the IEP team at least once every year.
  4. You must receive notice of when an IEP meeting is scheduled and YOU have the right to participate.
  5. The IEP team must have at least 5 members present at an IEP meeting, including YOU and any “other individuals who have knowledge or special expertise regarding the child” that you wish to bring.
  6. At an IEP meeting, you must be given a copy of the Procedural Safeguards Notice – a list of YOUR RIGHTS.  And if you don’t understand them, the school representative must explain them to you (and/or provide you with a translation into your native language).
  7. The IEP must have a definite, specific implementation (start) date.
  8. You do not have to sign the IEP at the time of the IEP meeting.  You may take it home with you to read and review.  You also have the right to disagree and reject the proposed IEP.
  9. Your child must be educated by “highly qualified” teachers and service providers.
  10. Once an IEP is signed, it is a contract and the school must provide everything agreed to in the IEP, including periodic progress reports to YOU.

These are not your only Rights.  There are more, but we picked 10 of the most important ones.

For more information on IEPs or to learn more to #KnowYourRights, please visit our website SchoolKidsLawyer.com or purchase our book SchoolKidsLawyer’s Step-By-Step Guide to Special Education Law: Workbook for Parents, Advocates and Lawyers.

Our official position on political candidates and appointees

The following is SchoolKidsLawyer.com‘s official position on political candidates and appointees to positions, specifically any potential or affirmed appointee to the U.S. Department of Education, the United States Supreme Court, or to any lesser court in our land.

The U.S. Department of Education and, in particular, the Secretary of Education is, by law, the person designated to enforce federal special education laws. These laws include (among others): the Individuals with Disabilities Education Act (IDEA), Sec. 504 of the Rehabilitation Act, and the Americans with Disabilities Act (ADA) as they apply to schools that receive federal funding. The Supreme Court and lesser courts also interpret these laws and set legal precedent that may affect our client.

As lawyers, we are sworn to uphold the Constitution and the laws of the United States of America and the States within which we are licensed. It is in our oath of office. Obviously, we want to enforce those laws and provide zealous and competent representation of our clients within those laws. Interpretation of those laws by government officials and agencies is critical to our job as advocates.

Thus, regardless of who is appointed to these positions, our firm must work with those individuals to try to shape policy favorable to our clients. In the case of SchoolKidsLawyer.com (Thurston Law Offices LLC), that means students with disabilities and their parents primarily.

We will not take public positions for or against any political candidate or appointee for the reason that we ultimately may have to work with that individual, regardless of our personal opinions. As we all learn as children, ‘you catch more flies with honey than with vinegar’. It is difficult to negotiate with or persuade someone to a favorable policy if you have deteriorated or destroyed any working relationship with that person. Put simply, if you make someone dislike you, working with that person will be challenging to say the least.

Thus, acting in the best interests of our clients – past, current, and future – we choose not to take any stances that may harm our clients’ positions in any legal context. Thank you for respecting our position in this regard.



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