Individuals with Disabilities Education Act 

Burden of Proof: On Parents or Schools? 

Schaffer v. Weast 

pending 

IN THE SUPREME COURT OF 

THE UNITED STATES 

Position Statement 

National Council on Disability 

August 9, 2005 

i 
National Council on Disability 

1331 F. Street, NW, Suite 850 

Washington, D. C. 20004-1107 

Individuals with Disabilities Education Act Burden of Proof: On Parents or Schools? 

Publication Date: August 9, 2005 

202-272-2004 General Information 

202-272-2074 TTY 

202-272-2022 Facsimile 

www.ncd.gov 

The views contained in this report do not necessarily represent those of the Administration, as 

this document has not been subjected to the A-19 Executive Branch Review process. 

ii 
National Council on Disability Members and Staff

Members 

Lex Frieden, Chairperson 

Patricia Pound, First Vice Chairperson 

Glenn B. Anderson, Ph.D., Second Vice Chairperson 

Milton Aponte, J.D. 

Robert R. Davila, Ph.D. 

Barbara Gillcrist 

Graham Hill 

Joel I. Kahn, Ph.D. 

Young Woo Kang, Ph.D. 

Kathleen Martinez 

Carol Hughes Novak 

Anne M. Rader 

Marco Rodriguez 

David Wenzel 

Linda Wetters 

Staff 

Ethel D. Briggs, Executive Director 

Jeffrey T. Rosen, General Counsel and Director of Policy 

Mark S. Quigley, Director of Communications 

Martin Gould, Ed.D., Director of Research and Technology 

Geraldine D. Hawkins, Ph.D., Senior Program Analyst 

Allan W. Holland, Chief Financial Officer 

Joan M. Durocher, Senior Attorney Advisor 

Julie Carroll, Senior Attorney Advisor 

Mark E. Seifarth, Congressional Liaison 

Brenda Bratton, Executive Assistant 

Stacey S. Brown, Staff Assistant 

Pamela O’Leary, Interpreter 

Carla Nelson, Secretary 

iii 
Table of Contents 

I. Executive Summary 

II. Introduction 

III. National Council on Disability 

IV. History of Special Education and Special Education Law 

A. History of Special Education 

1. Commons Schools Teach Common Values

 2. Early Special Education Programs 

3. Compulsory Attendance Laws 

4. Children with Disabilities Excluded 

 5. Brown v. Board of Education 

B. History of Special Education Law

 1. Elementary and Secondary Education Act 

 2. PARC and Mills

 3. Congressional Investigation 

4. The Education for All Handicapped Children Act 

5. Discrimination Against Diverse Students

 6. Financial Considerations 

7. Purpose of NCLB and IDEA 2004

V. Determining Burden of Proof 

VI. Split Among Circuits 

A. Tatro and Alamo Heights

 B. Lascari

 C. Johnson, Cordrey, and Doe

 D. Oberti

 E. Clyde K.

 F. E.S., Walczak, and Blackmon

 G. Devine

 H. T.B. 

I. Weast v. Schaffer

 J. In Summation: The Split Among Circuits 

VII. Analysis of U. S. Supreme Court Burden of Proof Cases

 A. Tinker - 1914 

B. Campbell - 1961 

C. Keyes - 1973

 D. Matthews - 1976 

E. International Brotherhood - 1977

 F. Concrete Pipe - 1993

 G. In Summation: Supreme Court Rulings - Ambiguous Statutes 

VIII. Three Special Education Cases 

A. Peter Mills 

B. Bill Dunstan 

C. Brian Schaffer 

IX. Conclusion 

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Acknowledgment 

The National Council on Disability would like to acknowledge Peter W. D. Wright for drafting 

this paper. 

v 
I. Executive Summary 

The Individuals with Disabilities Education Act does not specify whether parents or school 

districts have the burden of proof in special education litigation. It is the position of the National 

Council on Disability that school districts, not parents, should have the burden of proof in issues 

about IEPs, placement, eligibility, and other matters related to an appropriate education. 

In Schaffer v. Weast, the United States Court of Appeals for the Fourth Circuit held that “parents 

who challenge an IEP . . . have the burden of proof in the administrative hearing.” The Court 

noted that the “. . . circuits are split - and splintered in reasoning - on this question.” The split 

revolves around the Tatro / Alamo Heights line of cases contrasted with the Lascari / Oberti line 

of cases. Five Circuits have assigned the burden of proof, the Tatro / Alamo Heights rule, to the 

parents. Five other Circuits, following the Lascari / Oberti rule, assign the burden to the schools. 

The United States Supreme Court agreed to resolve the split between the Circuits. Oral argument 

is scheduled for October 5, 2005. 

If a parent disputes an IEP, the courts agree that it is the parent’s burden to “place in issue the 

appropriateness of the IEP.” The next issue is whether the parent has the burden of proving that 

the IEP is not appropriate or whether the school district has the burden of proving that the IEP is 

appropriate. 

There are several competing principles. Should the party attacking the terms of an IEP bear the 

burden of showing why the IEP is not appropriate? Or, should the party that prepared the IEP 

and has greater expertise and resources have the burden of proving that the IEP is appropriate? 

If a statute is silent regarding which party has the burden of proof, the complainant usually has 

the burden of proof. The U. S. Supreme Court has issued several decisions about burden of proof 

in the absence of statutory guidance. In most cases, the Court, relying on the policy and history 

of the statute and concerns of fundamental fairness, has been consistent in assigning the burden 

of proof to the party more likely to have access to the information that explains their actions in 

order to arrive at a result that is “right” and “just.” 

This paper reviews the history of special education, special education law, the Mills case which 

formed the backbone of the procedural safeguards in the Individuals with Disabilities Education 

Act, special education burden of proof cases, and U. S. Supreme Court cases. 

Brian Schaffer, Peter Mills and Bill Dunstan are children with disabilities whose cases were 

decided by different courts. Their own educational and legal processes are typical of the 

circumstances when parents and schools disagree. Because the burden of proof was assigned to 

Bill Dunstan, the outcome in his case was not fair or right, and the outcome was unjust. 

1 
II. Introduction 

The Individuals with Disabilities Education Act1

 does not specify whether parents or school 

districts have the burden of proof in special education litigation. The United States Courts of 

Appeal are split on this issue. 

On July 29, 2004, the United States Court of Appeals for the Fourth Circuit held that “parents 

who challenge an IEP [Individualized Education Plan] have the burden of proof in the 

administrative hearing.”2

 The Fourth Circuit commented that the “. . . circuits are split - and 

splintered in reasoning - on this question.”3 

Judge Luttig, in his dissent explained that: 

Not only does the school district have the affirmative, statutory obligation under the 

IDEA to develop a suitable education program (IEP) for every disabled child, the school 

district is also in a far better position to demonstrate that it has fulfilled this obligation 

than the disabled student’s parents are in to show that the school district has failed to do 

so. Accordingly, I would hold that the school district - and not the comparatively 

uninformed parents of the disabled child - must bear the burden of proving that the 

disabled child has been provided with the statutorily required appropriate educational 

4 resources.

On February 22, 2005, the United States Supreme Court agreed to hear “Brian Schaffer, a minor, 

by his parents and next friends, Jocelyn and Martin Schaffer, Petitioners, v. Jerry Weast, 

Superintendent of Montgomery County Public Schools, et al.” (Case # 04-698) In Schaffer, the 

Question Presented is: 

Under the Individuals with Disabilities Education Act, when parents of a disabled child 

and a local school district reach an impasse over the child’s individualized education 

program, either side has a right to bring the dispute to an administrative hearing officer 

for resolution. At the hearing, which side has the burden of proof – the parents or the 

school district? 

Twenty-four organizations and nine states have filed amicus briefs with the United States 

Supreme Court in support of Brian Schaffer.5, 6

 Fifteen organizations, Guam, and three states 

1

 The Individuals with Disabilities Act has been re-authorized and renamed on several occasions. It was initially 

known as the Education for the Handicapped Act, passed in 1975 in Public Law 94-142. On July 1, 2005 the 

Individuals with Disabilities Education Improvement Act of 2004, i.e., known as IDEA 2004 went into effect. 

2 Weast v. Schaffer, 377 F.3d 449, 456 (4th Cir. 2004), cert. granted, 125. S. Ct. 1300 (2005) 3 Weast at page 453 

4 Weast at page 456-457 5

 Alexander Graham Bell Association for the Deaf and Hard of Hearing, American Association of People with 

Disabilities, ARC of the United States, Autism Society of America, Autism Society of America, Northern Virginia 

Chapter, Bazelon Center for Mental Health Law, Center for Law and Education, Council of Parent Attorneys and 

Advocates, Disability Rights Education and Defense Fund, Inc, TASH, Inc, Education Law Center of New Jersey, 

Education Law Center of Pennsylvania, Epilepsy Foundation, NAMI, National Association of Protection and 

2 
have filed amicus briefs in support of Montgomery County.7, 8

 The state of Maryland did not file 

a brief in support of Montgomery County. Five years ago, when Schaffer was first before the 

U.S. Court of Appeals for the Fourth Circuit, the United States filed a brief in support of Brian 

Schaffer and argued that the school district should have the burden of proof. The United States 

argued that: 

The district court correctly held that the school has the burden of showing the adequacy 

of its proposed IEP at the due process administrative hearing. This result is consistent 

with the IDEA’s requirement that the public agency bear the responsibility for ensuring 

that FAPE is available to a child with a disability. It is also consistent with Congress’s 

intent that the school takes the lead in formulating the IEP and that parents have a 

meaningful opportunity to participate in determining the special education and related 

services to be provided to their child. 

To hold otherwise would unhinge this statutory framework. It would, in effect, allow the 

school -- through the IEP team, consisting of mostly school representatives -- to propose 

an IEP and, if the parents disagree with the draft IEP, abstain from the school’s statutory 

responsibilities to provide FAPE and to take the lead in developing the IEP by forcing the 

parents, who lack the school’s resources and knowledge of the IDEA, to prove at the 

administrative hearing that the IEP does not provide FAPE. The school’s stance with 

respect to a draft IEP challenge at the administrative hearing is also unsupportable in light 

of Congress’s intent for the school to have an ongoing obligation to provide FAPE and to 

continue to reevaluate the IEP regularly after it has been implemented. 

The Court should, therefore, affirm the district court’s allocation of the burden of proof to 

the school at the administrative hearing. 

The brief relied on the Third Circuit’s Oberti9 and the U. S. Supreme Court’s decision in Keyes10 

as the primary legal authority. Both cases will be discussed later in this report. 

On June 24, 2005, the United States changed positions and filed a brief with the U. S. Supreme 

Court on behalf of Weast asserting that the burden of proof should be placed on parents and not 

Advocacy Systems, National Children’s Law Network, National Law Center on Homelessness and Poverty, Parents 

for Autistic Children’s Education (PACETM), Parents Of Autistic Children of Northern Virginia (POAC-NoVA), 

Inc., United Cerebral Palsy, University of Richmond’s School of Law Disability Law Clinic, Unlocking Autism

(UA), and the Western Law Center for Disability Rights.) 

6

 Connecticut, Illinois, Kansas, Minnesota, Nevada, Rhode Island, Virginia, Washington, and Wisconsin.

7

 American Association of School Administrators, Connecticut Association of Boards of Education, Connecticut

Association of Public School Superintendents, Council of Great City Schools, Great City Schools, Illinois 

Association of School Boards, Kansas Association of School Boards, Minnesota School Boards Association,

National Association of Elementary School Principals, National Education Association, National Association of 

School Boards, Pennsylvania Association of School Administrators, Public School Superintendent’s Association of

Maryland, Texas Association of School Boards Legal Assistance Fund, and the Virginia School Boards Association. 

8

 Alaska, Hawaii and Oklahoma. 

9 Oberti v. Bd. of Educ., 995 F.2d 1204 (3d Cir. 1993) 10 Keyes v. School Dist. No. 1, 413 U.S. 189 (1973)

3 
on the school districts.11 It argued that the “Spending Clause” of the United States Constitution 

restricts the U. S. Supreme Court’s ability to place the burden of proof on school districts. The 

United States also argued that, because the recent amendments to the Individuals with 

Disabilities Education Act12 (IDEA 2004) provide greater procedural safeguards to children with 

disabilities, the burden of proof should now be on parents. The United States also argued that 

deference should be afforded to the school districts. 

Placing the burden of proof on parents, and not on school district, to prove inadequacy poses 

significant roadblocks to students with disabilities to obtain appropriate educational services. It 

is school districts - not parents and children with disabilities - that have the advantage in terms of 

information and resources. It is school districts - not parents and children with disabilities - that 

are in a much better position to prove that an IEP is adequate than parents to prove that an IEP is 

not adequate. In addition, placing the burden of proof on parents will discourage many parents 

from challenging inadequate IEPs. 

III. National Council on Disability 

The National Council on Disability (NCD) is an independent federal agency led by 15 members 

appointed by the President of the United States and confirmed by the U.S. Senate.13 

As provided by statute: 

(2) The purpose of the National Council is to promote policies, programs, practices, and 

procedures that -

(A) guarantee equal opportunity for all individuals with disabilities, regardless of 

the nature or severity of the disability; and 

(B) empower individuals with disabilities to achieve economic self-sufficiency, 

independent living, and inclusion and integration into all aspects of society.14 

NCD was initially established in 1978 as an advisory board within the Department of Education 

(Public Law 95-602). The Rehabilitation Act Amendments of 1984 (Public Law 98-221) 

transformed NCD into an independent agency. 

The statutory mandate of NCD includes the following duties: 

11 “After careful review of its administrative practice, the relevant case law, and the text, structure and history of the 

IDEA, including the 2004 amendments to the Act, the government is now of the view that, where, as here, a State 

has not placed the burden of proof on school districts as a matter of state law, the traditional rule that the burden of 

proof falls on the party seeking relief applies to IDEA due process hearings.” Brief, page 7, 8. 

12 The Individuals with Disabilities Education Improvement Act of 2004 will be referred to as “IDEA 2004.” 

13 29 U.S.C. § 780 

14 29 U.S.C. §780(a)(2) 

4 
• Review and evaluate federal policies, programs, practices, and procedures concerning people 

with disabilities, including programs established or assisted under the Rehabilitation Act of 

1973, as amended, and the Developmental Disabilities Assistance and Bill of Rights Act. 

• Review and evaluate all statutes and regulations pertaining to federal programs that assist 

people with disabilities, to assess their effectiveness in meeting the needs of these people. 

• Review and evaluate emerging federal, state, local, and private sector policy issues that affect 

people with disabilities, including the need for and coordination of adult services, access to 

personal assistance services, school reform efforts and the impact of these efforts on persons 

with disabilities, access to health care, and policies that operate as disincentives for 

individuals to seek and retain employment. 

• Make recommendations to the President, Congress, the Secretary of Education, the Director 

of the National Institute on Disability and Rehabilitation Research, and other officials of 

federal agencies regarding ways to promote equal opportunity, economic self-sufficiency, 

independent living, and inclusion and integration into all aspects of society for Americans 

with disabilities. 

 Provide Congress with advice, recommendations, legislative proposals, and other information 

that NCD or Congress deems appropriate.15 

In 1995, NCD studied Individualized Education Program (IEP) meetings and reported that “[a]t 

every hearing [held by the Council], witness after witness testified that the IEP process is 

extremely frustrating, often intimidating, and hardly ever conducive to making them feel that 

they were equal partners with professionals.”16 

On January 25, 2000, NCD issued a report entitled “Back to School on Civil Rights.”17 In the 

cover letter to the President, NCD explained that: 

Back to School on Civil Rights looks at more than two decades of federal monitoring and 

enforcement of compliance with Part B of IDEA. Overall, NCD finds that federal efforts 

to enforce the law over several Administrations have been inconsistent and ineffective. 

Despite the important efforts of your Administration to be more aggressive than any of its 

predecessors in addressing these compliance problems, failures to ensure local 

compliance with Part B requirements continue to be widespread and persist over many 

years. Enforcement of the law is too often the burden of parents who must invoke formal 

complaint procedures and request due process hearings to obtain the services and 

supports to which their children are entitled under law. The report includes 

15 Source: http://www.ncd.gov/brochure.htm - last visited on July 17, 2005 

16 National Council on Disability, Improving the Implementation of the Individuals with Disabilities Education Act: 

Making Schools Work for All of America’s Children at page 57 (1995). 17 National Council on Disability, Back to School on Civil Rights (2000)

5 
recommendations for your Administration and Congress that would build on the 1997 

reauthorization of IDEA.18 

The report contains a number of findings and recommendations. In the initial “Executive 

Summary” of the Report, NCD stated that: 

In the past 25 years, states have not met their general supervisory obligations to ensure 

compliance with the civil rights requirements of IDEA at the local level . . . The Federal 

Government has frequently failed to take effective action to enforce the civil rights 

protections of IDEA when federal officials determine that states have failed to ensure 

compliance with the law.19 

. . . 

As a result of 25 years of nonenforcement by the Federal Government, parents are still a 

main enforcement vehicle for ensuring compliance with IDEA.20 

. . . 

Many states are found eligible for full funding under Part B of IDEA while 

simultaneously failing to ensure compliance with the law. Though no state is fully 

ensuring compliance with IDEA, states usually receive full funding every fiscal year. 

Once eligible for funding, a state receives regular increases, which are automatic under 

the formula. OSEP’s findings of state noncompliance with IDEA requirements usually 

have no effect on that state’s eligibility for funding unless (1) the state’s policies or 

procedures create systemic obstacles to implementing IDEA, or (2) persistent 

noncompliance leads OSEP to enforce by imposing high risk status with “special 

conditions” to be met for continued funding.21 

. . . 

After 25 years, all states are out of compliance with IDEA to varying degrees.”22 

Later, on February 13, 2002, NCD wrote to Representative Castle about re-authorization of 

IDEA and provided a copy of Back to School on Civil Rights. The cover letter explained that:23 

As Congress begins serious discussions leading to the reauthorization of discretionary 

programs in the Individuals with Disabilities Education Act (IDEA) and potential 

amendments to Part B of the Act, we want to make you aware of NCD information and 

staff expertise available to assist you. 

NCD is currently coordinating a multi-year study on the implementation and enforcement 

of the Americans with Disabilities Act and other civil rights laws. This study has 

included an in-depth examination of state implementation of the Individuals with 

18 January 25, 2000 letter to the President at: 

http://www.ncd.gov/newsroom/publications/2000/backtoschool_1.htm - last visited July 18, 2005 

19 NCD - Back to School on Civil Rights, page 7 20 Id. page 70 

21 Id. page 78 

22 Id. page 125 

23 http://www.ncd.gov/newsroom/correspondence/2002/castle_02-13-02.htm - last visited on July 18, 2005 

6 
Disabilities Education Act (IDEA), Back to School on Civil Rights, which was distributed 

to congressional offices in 2000. Additionally, we have conducted a number of research 

studies pertaining to the implementation of the IDEA. We believe there are a number of 

issues in “Back to School” and our research findings that significantly bear on the 

reauthorization and potential amendments. 

For example, NCD has found: 

 A significant lack of school accountability, poor enforcement of existing federal laws, 

and systemic barriers have denied students their educational rights and opportunities 

(Achieving Independence: The Challenge for the 21st Century, NCD 1996); 

 Disciplinary issues are most likely to occur when students are ignored or not provided 

services they need, leading to measures that deprive them of appropriate preparation 

for life. (Discipline of Students with Disabilities: A Position Statement, NCD 1998); 

 There is not a state in the nation in compliance with IDEA, Part B. NCD found 

schools in every state denying appropriate supports and services to students with 

disabilities and not being held accountable for enforcement of the Act. (Back to 

School on Civil Rights, NCD 2000). 

The purpose of IDEA 2004 is to provide a child with a disability with a free appropriate public 

education that is designed to meet the child’s unique needs and prepare the child for “further 

education, employment, and independent living.”24 

The purpose of the NCD is to “empower individuals with disabilities to achieve economic selfsufficiency, independent living, and inclusion and integration into all aspects of society.25 

IDEA 2004 and NCD have similar purposes; economic self-sufficiency and independent living. 

In order to effectively accomplish the purpose of both statutes, it is the position of this Council 

that school districts, not parents, should have the burden of proof in issues regarding IEPs, 

placement, eligibility, and other matters related to an appropriate education. 

IV. History of Special Education and Special Education Law 

A. History of Special Education 

1. Common Schools Teach Common Values 

During the last century, waves of poor, non-English speaking, Catholic and Jewish immigrants 

poured into the United States. Citizens were afraid that these new immigrants would bring class 

hatreds, religious intolerance, crime, and violence to America. Social and political leaders 

24 20 U.S.C. §1400(d)(1)(A) 

25 29 U.S.C. §780(a)(2) 

7 
searched for ways to “reach down into the lower portions of the population and teach children to 

share the values, ideals and controls held by the rest of society.”26 

An educational reformer named Horace Mann proposed a solution to these social problems. He 

recommended that communities establish common schools funded by tax dollars. He believed 

that when children from different social, religious and economic backgrounds were educated 

together, they would learn to accept and respect each other. Common schools taught common 

values that included self-discipline and tolerance for others. These common schools would 

socialize children, improve interpersonal relationships, and improve social conditions.27 

2. Early Special Education Programs 

The first special education programs were delinquency prevention programs for “at risk” 

children who lived in urban environments. Urban school districts designed manual training 

classes as a supplement to their general education programs. By 1890, hundreds of thousands of 

children were learning carpentry, metal work, sewing, cooking and drawing in manual classes. 

Children were also taught social values in these classes. 

Manual training was a way of teaching children industriousness, and clearing up their 

character problems . . . the appeal of this training was the belief that it would attract 

children to school, especially poor children, so their morals could be reshaped . . . Manual 

training would teach children to be industrious and prevent the idleness that accounted 

for the increasing crime rate . . . it could teach self discipline and will power.28 

Early special education programs also focused on the “moral training” of African-American 

children.29 

3. Compulsory Attendance Laws 

For public schools to succeed in the mission of socializing children, all children had to attend 

school. Poor children attended school sporadically, quit early, or didn’t enter school at all. Public 

school authorities lobbied their legislatures for compulsory school attendance laws. Compulsory 

attendance laws gave school officials the power to prosecute parents legally if they failed to send 

their children to school.30 

26 Church, Robert L. (1976) Education in the United States page 81 (New York: The Free Press) 27 Cremin, Lawrence A. (1967) The Transformation of the School: Progressivism in American Education, 1876-

1957 pages 183-194 (New York: Knopf) 

28 Cremin at pages 220-222 

29 Cremin at page 182-226 

30 Sperry, David, Philip T. K. Daniel, Dixie Snow Huefner, E. Gordon Gee. (1998) Education Law and the Public 

Schools: A Compendium, pages 139-145 (Norwood, MA: Christopher-Gordon Publishers, Inc. ), Cremin at pages 

182-226 

8 
4. Children with Disabilities Excluded 

Until 1975, children with disabilities were often excluded from school. When allowed to attend, 

children with many different disabilities were often lumped together in generic special education 

classes. Because schools segregated children with disabilities from non-disabled children, special 

education classes were often held in undesirable, out-of-the-way places, like trailers and school 

basements. 

Despite compulsory attendance laws, most states allowed school authorities to exclude children 

if they believed that the child would not benefit from education or if the child’s presence would 

be disruptive to others, i.e., to non-disabled children and teachers. In 1958, the Illinois Supreme 

Court held that compulsory education laws did not apply to children with mental impairments. 

Until 1969, it was a crime in North Carolina for a parent to try to enroll a child with a disability 

in public school after the child had been excluded.31 

5. Brown v. Board of Education, 347 U. S. 483 (1954) 

In 1954, the U. S. Supreme Court issued a landmark civil rights decision in Brown v. Board of 

Education, 347 U. S. 483 (1954). In Brown, school children from four states argued that 

segregated public schools were inherently unequal and deprived them of equal protection of the 

laws. The Supreme Court found that African-American children had the right to equal 

educational opportunities and that segregated schools “have no place in the field of public 

education.” The Court wrote: 

Today, education is perhaps the most important function of state and local governments. 

Compulsory school attendance laws and the great expenditures for education both 

demonstrate our recognition of the importance of education to our democratic society. It 

is required in the performance of our most basic public responsibilities, even service in 

the armed forces. It is the very foundation of good citizenship. Today it is a principal 

instrument in awakening the child to cultural values, in preparing him for later 

professional training, and in helping him to adjust normally to his environment. In these 

days, it is doubtful that any child may reasonably be expected to succeed in life if he is 

denied the opportunity of an education. Such an opportunity, where the state has 

undertaken to provide it, is a right which must be made available to all on equal terms.32 

We come then to the question presented: Does segregation of children in public schools 

solely on the basis of race, even though the physical facilities and other “tangible” factors 

may be equal, deprive the children of the [ ] group of equal educational opportunities? 

We believe that it does.33 

In Brown, the Supreme Court described the emotional impact that segregation has on children, 

especially when segregation “has the sanction of the law:” 

31 Weber, Mark. (2002) Special Education Law and Litigation Treatise (Horsham, PA, LRP Publications, Inc. ) page 

1.1, (1965 N.C. Sess. Laws. Ch. 584, amending N.C. Gen. Stat. Section 115-165 (1963))

32 Brown v. Board of Education, 347 U. S. 483, 493 (1954) 33 Brown at page 493 

9 
To separate them from others of similar age and qualifications solely because of their 

race generates a feeling of inferiority as to their status in the community that may affect 

their hearts and minds in a way unlikely ever to be undone. The effect of this separation 

on their educational opportunities was well stated by a finding in the Kansas case by a 

court which nevertheless felt compelled to rule against the [ ] plaintiffs: 

Segregation of white and colored children in public schools has a detrimental 

effect upon the colored children. The impact is greater when it has the sanction of 

the law; for the policy of separating the races is usually interpreted as denoting the 

inferiority of the [ ] group. A sense of inferiority affects the motivation of a child 

to learn. Segregation with the sanction of law, therefore, has a tendency to [retard] 

the educational and mental development of [ ] children and to deprive them of 

some of the benefits they would receive in a racially integrated school system.34 

After the decision in Brown, parents of children with disabilities began to bring lawsuits against 

their school districts for excluding and segregating children with disabilities. The parents argued 

that, by excluding these children, schools were discriminating against the children because of 

their disabilities. 

B. History of Special Education Law 

1. Elementary and Secondary Education Act of 1965 and Education of the 

Handicapped Act of 1970 

In a policy paper about school vouchers, the National Council on Disability (NCD) provided a 

brief history of special education law and the interrelationship with the Elementary and 

Secondary Education Act of 1965 (ESEA). In the paper, NCD explained that: 

Congress first addressed the education of students with disabilities in 1966 when it 

amended the Elementary and Secondary Education Act of 1965 to establish a grant 

program to assist states in the “initiation, expansion, and improvement of programs and 

projects . . . for the education of [ ] children.” In 1970, that program was replaced by the 

Education of the Handicapped Act (P.L. 91-230) that, like its predecessor, established a 

grant program aimed at stimulating the States to develop educational programs and 

resources for individuals with disabilities. Neither program included any specific 

mandates on the use of the funds provided by the grants; nor could either program be 

shown to have significantly improved the education of children with disabilities. In the 

early 1970s, two federal court cases provided the first substantial steps forward in the 

education of individuals with disabilities. Pennsylvania Assn. for Retarded Children 

(P.A.R.C) v. Commonwealth (1971) and Mills v. Board of Education of the District of 

Columbia (1972) held against discriminatory exclusion practices of school districts and 

opened up public schools to children with disabilities.35 

34 Brown at page 494 35 National Council on Disability, Policy Paper, School Vouchers and Students with Disabilities, page 9, April 15, 

2003, available at: http://www.ncd.gov/newsroom/publications/2003/pdf/vouchers.pdf - last visited July 17, 2005 

10 
2. PARC and Mills 

During the early 1970s, two cases were catalysts in special education law: Pennsylvania Assn. 

for Retarded Children v. Commonwealth of Pennsylvania, 334 F. Supp. 1257 (E. D. Pa, 1971) 

and 343 F. Supp. 279 (E. D. Pa. 1972) and Mills v. Board of Education of District of Columbia, 

348 F. Supp. 866 (D. DC 1972). 

PARC dealt with the exclusion of children labeled with mental retardation from public schools. 

In the subsequent settlement, it was agreed that educational placement decisions included a 

process of parental participation and a means to resolve disputes.36 Mills involved the practice of 

suspending, expelling and excluding children with disabilities from the District of Columbia 

public schools. 

In 1971, Peter Mills and class filed suit against Washington, D. C. Public Schools. In Mills, 

Judge Waddy stated that: 

The genesis of this case is found (1) in the failure of the District of Columbia to provide 

publicly supported education and training to plaintiffs and other “exceptional” children, 

members of their class, and (2) the excluding, suspending, expelling, reassigning and 

transferring of “exceptional” children from regular public school classes without 

affording them due process of law.37 

The school districts’ primary defense in Mills38 was the high cost of educating children with 

disabilities. 

Because Mills focused on procedural safeguards and is the basis for the procedural safeguards in 

IDEA 2004 at 20 U.S.C. §1415, we will focus on the law of Mills and, later, the facts of the 

individual children. Judge Waddy provided clear guidance about the burden of proof. 

In Mills, the basis of the suit was that “because of behavioral problems, emotional disturbance, 

brain injury, or hyperactivity,” the children were excluded from a public school education. The 

action was certified as a class action. 

In his opinion, Judge Waddy wrote: 

The Answer of the defendants to the Complaint contains the following: 

“These defendants say that it is impossible to afford plaintiffs the relief they request 

unless: 

36 Pennsylvania Assn. for Retarded Children v. Commonwealth of Pennsylvania, 343 F. Supp. 279, 303 (E. D. Pa. 

1972)

37 Mills at page 868 38 Financial cost is often one of the primary defenses in special education cases before the U. S. Supreme Court. 

11 
(a) The Congress of the United States appropriates millions of dollars to improve special 

education services in the District of Columbia; or 

(b) These defendants divert millions of dollars from funds already specifically 

appropriated for other educational services in order to improve special educational 

services. These defendants suggest that to do so would violate an Act of Congress and 

would be inequitable to children outside the alleged plaintiff class.” 

This Court is not persuaded by that contention. 

The defendants are required by the Constitution of the United States, the District of 

Columbia Code, and their own regulations to provide a publicly supported education for 

these “exceptional” children. Their failure to fulfill this clear duty to include and retain 

these children in the public school system, or otherwise provide them with publicly 

supported education, and their failure to afford them due process hearing and periodical 

review, cannot be excused by the claim that there are insufficient funds. In Goldberg v. 

Kelly, 397 U.S. 254, 90 S. Ct. 1011, 25 L. Ed. 2d 287 (1969) the Supreme Court, in a 

case that involved the right of a welfare recipient to a hearing before termination of his 

benefits, held that Constitutional rights must be afforded citizens despite the greater 

expense involved. The Court stated . . . that “the State’s interest that his [welfare 

recipient] payments not be erroneously terminated, clearly outweighs the State’s 

competing concern to prevent any increase in its fiscal and administrative burdens.” 

Similarly the District of Columbia’s interest in educating the excluded children 

clearly must outweigh its interest in preserving its financial resources. If sufficient 

funds are not available to finance all of the services and programs that are needed and 

desirable in the system then the available funds must be expended equitably in such a 

manner that no child is entirely excluded from a publicly supported education consistent 

with his needs and ability to benefit therefrom. The inadequacies of the District of 

Columbia Public School System whether occasioned by insufficient funding or 

administrative inefficiency, certainly cannot be permitted to bear more heavily on the 

“exceptional” or [ ] child than on the normal child.39 (Emphasis added.) 

The Court held that: “Plaintiffs’ entitlement to relief in this case is clear. The applicable statutes 

and regulations and the Constitution of the United States require it.”40 In the Judgment, the Court 

Ordered that: 

The District of Columbia shall provide to each child of school age a free and suitable 

publicly supported education regardless of the degree of the child’s mental, physical or 

emotional disability or impairment. Furthermore, defendants shall not exclude any child 

resident in the District of Columbia from such publicly supported education on the basis 

of a claim of insufficient resources.41 

39 Mills at pages 875-877 

40 Mills at page 873 41 Mills at page 881 

12 
To compare Judge Waddy’s term, a “free and suitable publicly supported education” to the 

definition of a “free appropriate public education” (FAPE) in IDEA 2004, see 20 U.S.C. 

§1401(9) and the requirement that FAPE be provided in the state plan at 20 U.S.C. §1412(a)(1). 

Judge Waddy outlined very specific procedures for due process hearings. Many of these 

procedures were copied almost verbatim into the procedural safeguards of the Education for All 

(EAHCA) Children Act in 1975 and have continued in the law through IDEA 2004. 

For example, in Paragraph 13 of his Order, Judge Waddy outlined specific “Hearing Procedures” 

that must be followed. Each member of the “plaintiff class is to be provided with a publicly 

supported educational program suited to his needs . . .” Before a child is placed into a program, 

the parents must be provided with notice “of the proposed educational placement, the reasons 

therefore, and the right to a hearing before a Hearing Officer if there is an objection to the 

placement proposed.”42 

Before the school system could take any “action regarding a child’s placement” the defendants 

must provide notice that shall: 

(a) describe the proposed action in detail; 

(b) clearly state the specific and complete reasons for the proposed action, including the 

specification of any tests or reports upon which such action is proposed; 

(c) describe any alternative educational opportunities available on a permanent or 

temporary basis; 

(d) inform the parent or guardian of the right to object to the proposed action at a hearing 

before the Hearing Officer; 

(e) inform the parent or guardian that the child is eligible to receive, at no charge, the 

services of a federally or locally funded diagnostic center for an independent medical, 

psychological and educational evaluation and shall specify the name, address and 

telephone number of an appropriate local diagnostic center; 

(f) inform the parent or guardian of the right to be represented at the hearing by legal 

counsel; to examine the child’s school records before the hearing, including any tests or 

reports upon which the proposed action may be based, to present evidence, including 

expert medical, psychological and educational testimony; and, to confront and crossexamine any school official, employee, or agent of the school district or public 

department who may have evidence upon which the proposed action was based.43 

Compare Judge Waddy’s notice requirements, above, to the notice requirements in 20 U.S.C. 

§1415(b)(3) and §1415(c)(1). IDEA 2004 mandates that the “Prior Written Notice” shall include: 

42 Mills at page 880 43 Mills at pages 880-881 

13 
(A) a description of the action proposed or refused by the agency; 

(B) an explanation of why the agency proposes or refuses to take the action and a 

description of each evaluation procedure, assessment, record, or report the agency used as 

a basis for the proposed or refused action; 

(C) a statement that the parents of a child with a disability have protection under the 

procedural safeguards of this part and, if this notice is not an initial referral for 

evaluation, the means by which a copy of a description of the procedural safeguards can 

be obtained; 

(D) sources for parents to contact to obtain assistance in understanding the provisions of 

this part; 

(E) a description of other options considered by the IEP Team and the reason why those 

options were rejected; and 

(F) a description of the factors that are relevant to the agency’s proposal or refusal.44 

In a Hearing, Judge Waddy mandated that the child would have the right to “a representative of 

his own choosing, including legal counsel.”45 

The parent had the right of access to all records pertaining to the child.46 

The Hearing Officer could not be an employee of the school system.47 

The parent had the right to present evidence and testimony and cross-examine any witness 

testifying for the school system. The parent had the right to force the attendance of any school 

official or other public employee.48 

A tape recording or other “record of the hearing shall be made and transcribed” and made 

available to the parent.49 

A decision that included findings of fact and conclusions of law was to be filed within thirty days 

after the hearing.50 

44 See IDEA 2004: 20 U.S.C. §1415(c)(1)

45 See IDEA 2004: 20 U.S.C. §1415(h)(1)

46 See IDEA 2004: 20 U.S.C. §1415(f)(2)

47 See IDEA 2004: 20 U.S.C. §1415(f)(3)(A)(i)(I)

48 See IDEA 2004: 20 U.S.C. §1415(h)(2)

49 See IDEA 2004: 20 U.S.C. §1415(h)(3)

50 20 U.S.C. §1415(h)(4) and 34 C.F.R. § 300.511(a) - 45 days from date of request for hearing

14 
Judge Waddy, by his Order, restored the constitutional right to an education for the class of 

children who were denied an education. Of critical importance is that Judge Waddy, as a part of 

the procedural safeguards outlined in his Order, subsection entitled “Hearing Procedures,” stated 

expressly that: 

Defendants shall bear the burden of proof as to all facts and as to the 

appropriateness of any placement, denial of placement or transfer.51 

In 1972, Judge Waddy ordered that the school district shall have “the burden of proof as to all 

facts and as to the appropriateness of any placement, denial of placement or transfer.” The 

procedural safeguards outlined by Judge Waddy form the basis of the procedural safeguards in 

existence today at 20 U.S.C. §1415. 

Congress tracked Judge Waddy’s order, almost verbatim, in creating the procedural safeguards 

that protect and enforce a child with a disability’s right to an appropriate education. 

One needs only to study Mills to resolve confusion about the procedural safeguards, the meaning 

of Section 1415 and the intent of Congress. In disputes, the burden of proof is on the school 

district. 

The rulings in the Mills and PARC cases led to Congressional hearings and the subsequent 

enactment of Public Law 94-142, originally known as the Education for All Handicapped 

Children Act and now known as the Individuals with Disabilities Education Act (IDEA 2004). 

3. Congressional Investigation 

After PARC and Mills, Congress launched an investigation into the status of children with 

handicaps and disabilities. In May, 1972, legislation was introduced in Congress after several: 

. . . landmark court cases establishing in law the right to education for all [ ] children 

[Mills and PARC] . . . In 1954, the Supreme Court of the United States [Brown v. Board 

of Education] established the principle that all children be guaranteed equal educational 

opportunity. The Court stated “In these days, it is doubtful that any child may reasonably 

be expected to succeed in life if he is denied the opportunity of an education. Such an 

opportunity . . . is a right which must be made available to all on equal terms.”52 

Congress found that millions of children were not receiving an appropriate education: 

Yet, the most recent statistics provided by the Bureau of Education for the Handicapped 

estimated that of the more than 8 million children . . . with handicapping conditions 

requiring special education and related services, only 3.9 million such children are 

receiving an appropriate education. 1.75 million [ ] children are receiving no educational 

services at all, and 2.5 million [ ] children are receiving an inappropriate education.53 

51 Mills at page 881 52 United States Code Congressional and Administrative News 1975 (USCCAN) at page 1430 53 USCCAN at page 1433 

15 
Congress described the social and economic costs of failing to educate children with disabilities: 

The long-range implications of these statistics are that public agencies and taxpayers will 

spend billions of dollars over the lifetimes of these individuals to maintain such persons 

as dependents and in a minimally acceptable lifestyle. With proper education services, 

many would be able to become productive citizens productive citizens productive citizens 

productive citizens productive citizens, contributing to society contributing to society 

contributing to society contributing to society contributing to society instead of being 

forced to remain burdens. Others, through such services, would increase their 

independence, thus reducing their dependence on society.54 

There is no pride in being forced to receive economic assistance. Not only does this have 

negative effects upon the [ ] person, but it has far-reaching effects for such person’s 

family.55 

Providing educational services will ensure against persons needlessly being forced into 

institutional settings. One need only look at public residential institutions to find 

thousands of persons whose families are no longer able to care for them and who 

themselves have received no educational services. Billions of dollars are expended each 

year to maintain persons in these subhuman conditions . . .56 

Parents of [ ] children all too frequently are not able to advocate the rights of their 

children because they have been erroneously led to believe that their children will not be 

able to lead meaningful lives . . . It should not . . . be necessary for parents throughout 

the country to continue utilizing the courts to assure themselves a remedy . . .57 

4. The Education for All Handicapped Children Act of 1975 - Public Law 

94-142 

On November 19, 1975, Public Law 94-142 was enacted and called the Education for All 

Handicapped Children Act (EAHCA) of 1975. When the law was reauthorized in 1990, it was 

renamed the Individuals with Disabilities Education Act (IDEA). Subsequent re-authorizations in 

1997 and 2004 are known as IDEA 97 and IDEA 2004. 

The phrase “handicapped child” was used in Public Law 94-142. It was later replaced by “child 

with a disability” in the statute and regulations. 

Congress intended that all “[ ] children” would “have a right to education, and to establish a 

process by which State and local educational agencies may be held accountable for providing 

educational services for all [ ] children.”58 

54 Id. at page 1433 

55 Id. at page 1433 

56 Id. at page 1433 

57 Id. at page 1433 

58 Id. at page 1427 

16 
5. Discrimination Against Minorities 

In 1975, Congress found that poor African-American children were over-represented in special 

education classes. Today these problems persist. In IDEA 2004, Congress explained that dropout rates are high for minorities:59 

(A) Greater efforts are needed to prevent the intensification of problems connected with 

mislabeling and high dropout rates among [ ] children with disabilities. 

(B) More [ ] children continue to be served in special education than would be expected 

from the percentage of [ ] students in the general school population. 

(C) African-American children are labeled as having mental retardation and emotional 

disturbance at rates greater than their White counterparts. 

(D) In the 1998-1999 school year, African-American children represented just 14.8 

percent of the population aged 6 through 21, but comprised 20.2 percent of all children 

with disabilities. 

(E) Studies have found that schools with predominately White students and teachers have 

placed disproportionately high numbers of their students from diverse backgrounds into 

special education. 

6. Financial Considerations 

Since Mills, school districts have complained about the cost of special education. In the briefs 

filed by, and on behalf of the local education agencies in Carter, Garret F, and Schaffer, school 

districts complained about the cost of special education. 

In Carter, Justice O’Connor explained that: 

The school district also claims that allowing reimbursement for parents such as 

Shannon’s puts an unreasonable burden on financially strapped local educational 

authorities. The school district argues that requiring parents to choose a state-approved 

private school if they want reimbursement is the only meaningful way to allow States to 

control costs; otherwise States will have to reimburse dissatisfied parents for any private 

school that provides an education that is proper under the Act, no matter how expensive it 

may be. 

There is no doubt that Congress has imposed a significant financial burden on States and 

school districts that participate in IDEA. Yet public educational authorities who want to 

avoid reimbursing parents for the private education of a disabled child can do one of two 

things: give the child a free appropriate public education in a public setting, or place the 

59 20 U.S.C. §1400(c)(12) - IDEA 2004 

17 
child in an appropriate private setting of the State’s choice. This is IDEA’s mandate, and 

school officials who conform to it need not worry about reimbursement claims.60 

7. Purpose of No Child Left Behind and IDEA 2004 

The purpose of No Child Left Behind is:61 

[T]to ensure that all children have a fair, equal, and significant opportunity to obtain a 

high-quality education and reach, at a minimum, proficiency on challenging State 

academic achievement standards and state academic assessments. This purpose can be 

accomplished by — 

. . . 

(2) meeting the educational needs of low-achieving children in our Nation’s 

highest-poverty schools, limited English proficient children, migratory children, 

children with disabilities, Indian children, neglected or delinquent children, and 

young children in need of reading assistance; 

(3) closing the achievement gap between high- and low-performing children, 

especially the achievement gaps between diverse and nondiverse students, and 

between disadvantaged children and their more advantaged peers; 

. . . 

(9) promoting schoolwide reform and ensuring the access of children to effective, 

scientifically based instructional strategies and challenging academic content; 

No Child Left Behind expects children with disabilities to be proficient in academic skills, 

including math and reading. The educational achievement gap between more advantaged 

children and children with disabilities is to be closed. Brian Schaffer and Shannon Carter, two 

cases that will be discussed later, had advantages that Bill Dunstan lacked. Brian and Shannon 

were represented by counsel, Bill was not. The educational achievement gaps for Brian and 

Shannon were closed. The outcome for Bill was different. 

When Congress passed the EAHCA (Public Law 94-142) in 1975, they included an elaborate 

system of legal checks and balances called “procedural safeguards” designed to protect the rights 

of children and their parents. As noted earlier, the Mills case formed the backbone of these 

safeguards. Initially, the law focused on ensuring that children had access to an education and 

due process of law. Now, most children with disabilities attend school. When Congress 

reauthorized the law in 1997, they focused on accountability and improved outcomes, while 

maintaining the goals of access and due process. With the Individuals with Disabilities Education 

Act of 2004, (IDEA 2004), Congress increased the focus on accountability and improved 

outcomes with their emphasis on reading, early intervention, research-based instruction, and 

highly qualified teachers. 

60 Florence County School District IV v. Carter , 510 U.S. 7, 12 (1993) 61 20 U.S.C. §6301 - the statement of purpose of No Child Left Behind 

18 
IDEA has two primary purposes: The first purpose is to provide an education that meets a child’s 

unique needs and prepares the child for further education, employment, and independent living. 

The second purpose is to protect the rights of children with disabilities and their parents. 62 

The statute is clear, protect the rights of parents and children with disabilities. As a part of 

protecting their rights, the statute did not assign the burden of proof to parents in disputes. 

Query: In Dunstan (to be discussed later), what steps were taken to protect the child’s rights? By 

the Maryland Office of Administrative Hearings and by Baltimore City Public Schools? Because 

the guardian was unable to properly mark, identify, and move for the submission of exhibits, all 

exhibits were excluded. The guardian was unable to protect the rights of the child. What 

protection was afforded the child when the guardian was unable to properly present a case in a 

judicial forum? 

Did Peter Mills, in 1972, have more procedural protections than Bill Dunstan in 2002? Answer - 

yes. In 1972 the burden of proof was on the school district to prove the facts and appropriateness 

of any placement. In 2002, the burden of proof was on Bill Dunstan and his guardian to prove 

that Bill needed to learn how to read, count money, and fill out job applications. 

As will be clear later, the second purpose of IDEA was not met with Bill Dunstan. As a result, 

the first purpose, to prepare the child for employment and independent living - was not achieved. 

V. Determining Burden of Proof 

To determine the appropriate burden of proof when a statute is silent, one needs to study 

legislative history (above), then special education case law, focusing on development of the split 

among circuits, then by a review of case law from the U. S. Supreme Court. 

(While IDEA 2004 is silent on the burden of proof, seven states63 have assigned the burden of 

proof to school districts by state statute or regulation. Two State Supreme Courts64, 65 have also 

assigned the burden of proof to the school districts.) 

After a review of case law, the facts of a case need to be applied to the law in order to arrive at 

the right result. 

62 20 U.S.C. §1400(d)(1)

63 Alaska Regulations: 4 AAC 52.550(e)(9) 

Alabama Regulations: Chapter 290-8-9.08(8)(c)(6)(ii)(I) 

Connecticut Regulations: § 10-76h-14 

Delaware Statute: 14 § 3140

District of Columbia Regulations: Mun. Regs. Title 5, § 3030.3, 

Minnesota Statute: § 125A.091, Subdivision 16 

West Virginia Regulations: § 126-16-8.1.11c

64 New Jersey - Lascari v. Bd. of Educ. of Ramapo Indian Hills Reg. High Sch. Dist., 116 N.J. 30, 560 A.2d 1180 

(NJ 1989)

65 Virginia - School Bd. of Campbell County. v. Beasley, 238 Va. 44, at 51, 380 S.E.2d 884 (VA 1989)

19 
This paper will examine the facts in three different special education cases. 

Finally, we will seek to extrapolate the “spirit” of special education law with the “letter” of the 

(burden of proof) law and summarize the conflicts between the two. 

VI. Split Among Circuits 

The U. S. Courts of Appeal are split as to whether the parents, school district, or party seeking to 

change a child’s Individualized Educational Program (IEP) or placement, have the burden of 

proof. The first highly-publicized case regarding burden of proof came in 1983 with the Fifth 

Circuit’s ruling in Tatro.

66 

A. Tatro (1983) and Alamo Heights (1986) 

The case began in 1979, when Amber Tatro was three and one-half years old. Amber’s mother 

asked the school district to provide special education for Amber. The school district agreed and 

developed an IEP that placed Amber in an Early Childhood Development (ECD) class. However 

the school district did not want to provide Amber with Clean Intermittent Catherization (CIC) 

and “the school district maintained that it had no legal obligation to administer it.”67 

In 1983, the Fifth Circuit found that the school district’s IEP included placement in the public 

school program. However, if Amber did not receive CIC, then the placement could not be 

implemented. In essence, the school district was attacking the IEP that it developed with the 

parents. The Court ruled that that the school district was required to provide CIC for Amber, 

explaining that: 

[B]ecause the IEP is jointly developed by the school district and the parents, fairness 

requires that the party attacking its terms should bear the burden of showing why the 

educational setting established by the IEP is not appropriate. Since the school district has 

not even attempted to do so, its argument must be rejected and we need not reach the 

thorny issue of what circumstances might call for judicial modification of an IEP.68 

Tatro became the leading case that the “party attacking the IEP should bear the burden (of 

proof.) (The school district appealed the CIC issue to the U. S. Supreme Court where the parents 

prevailed.)69 Had the Fifth Circuit avoided a discussion about the IEP and simply held that the 

school district had the burden of proving that their denial of CIC was justified, the outcome 

would have been the same. 

66 Tatro v. Texas, 703 F.2d 823 (5th Cir. 1983), aff’d in part, rev’d in part, on other grounds, sub nom. Irving Indep. 

School Dist. v. Tatro, 468 U.S. 883 (1984)

67 Tatro, 703 F. 2d at page 825 

68 Tatro at page 830 69 Irving Indep. School Dist. v. Tatro, 468 U.S. 883 (1984) 

20 
In 1986, the Fifth Circuit issued the decision in Alamo Heights and renewed its Tatro position 

that the burden of proof is on the party attacking the terms of the IEP.70 

B. Lascari (1989) 

In 1989, the New Jersey Supreme Court in Lascari71 found that: “Across the country other courts 

have struggled with determining which party bears the burden of proving the appropriateness or 

inappropriateness of the education provided by the district.” 

In Lascari, the Court explained that Tatro placed the burden of proof on the school district even 

though Tatro stands for the proposition that the burden of proof should be on the parents: 

In cases in which the district has sought to change a child’s placement, some courts have 

allocated the burden of proof to the district. That allocation is supported by the view that 

when a child is currently learning in a placement that was jointly developed by the 

district and the parents, the party attacking the program should show why it is 

inappropriate . . . In placing the burden on the district when it attacks the IEP, those 

courts have also relied on the statutory preference for maintaining the status quo when the 

child is receiving an appropriate education.72 

Lascari explained that “Although we agree with the results of those cases, we are not certain that 

the courts would have placed the burden of proof on the party seeking to change the IEP if that 

party had been the parents rather than the school district.” In other words, the Tatro Court 

focused on the welfare of Amber, ensuring that she received CIC so she could attend school. 

In most special education disputes, the parent asserts that the IEP is not appropriate and thus, 

under the Tatro rule, has the burden of proof. However, in Tatro, the Court placed the burden on 

the school district. 

The New Jersey Supreme Court explained that underlying the law is “an abiding concern for the 

welfare” of the child and parents.73 

The purpose of procedural safeguards is to protect children and their parents. “Like those 

procedural safeguards, the allocation of the burden of proof protects the rights of [ ] children to 

an appropriate education.”74 

In addition to concern for the child’s welfare and protection of rights, the Court added: 

Our result is also consistent with the proposition that the burdens of persuasion and of 

production should be placed on the party better able to meet those burdens. In the past, 

70 Alamo Heights Independent School District v. State Board of Education, 790 F.2d 1153, 1158 (5th Cir. 1986) 71 Lascari v. Bd. of Educ. of Ramapo Indian Hills Regional High Sch. Dist. 116 N.J. 30, 560 A.2d 1180 (NJ 1989) 

72 Lascari at pages 1187-1188 

73 Lascari at page 1188 74 Lascari at page 1188 

21 
we have placed either the burden of production . . . or the burden of proof on the party 

with the better access to relevant information . . . By contrast, parents may lack the 

expertise needed to formulate an appropriate education for their child.75 

The burden of production of evidence and the burden of proof shall be on the party with “better 

access to relevant information.” In disputes between parents and school districts, the critical 

factor is to obtain “the right result for the [ ] child.” 

[B]oth the parents and district have an interest in assuring that a [ ] child receives an 

appropriate education. In that setting, the adversary nature of the proceedings should 

yield to obtaining the right result for the [ ] child. Thus, the distinction between the 

burden of proof and the burden of production may be less critical . . .76 

The overriding theme in Lascari (and perhaps in Tatro) is that “the adversary nature of the 

proceedings should yield to obtaining the right result for the [ ] child.” 

Lascari concluded that the parent’s obligation “should be merely to place in issue the 

appropriateness of the IEP. The school board should then bear the burden of proving that the IEP 

was appropriate. In reaching that result, we have sought to implement the intent of the statutory 

and regulatory schemes.”77 

C. Johnson (1990), Cordrey (1990), and Doe (1993) 

In 1990, the Tenth Circuit in Johnson relied on and quoted Tatro in holding that IDEA creates a 

“presumption in favor of the educational plan” and that “the party that attacking its terms should 

bear the burden . . .”78 

Later in 1990, in Cordrey,

79 and in 1993, in Doe,80 the Sixth Circuit, relying on Tatro, held that 

the burden is on the party that challenges the IEP. 

D. Oberti (1993) 

In 1993, the Third Circuit, in Oberti,

81 departed from the rule developed in the Fifth, Tenth, and 

Sixth Circuits. In Oberti, the Court provided a comprehensive explanation about the developing 

burden of proof case law. The Court explained that there were two issues, burden of proof at the 

initial administrative hearing, and then, if a case is appealed to the U. S. District Court, 

regardless of the earlier outcome, whether the school district had the burden of proof on appeal. 

75 Lascari at page 1188 76 Lascari at page 1188 “right result” 

77 Lascari at pages 1188-1189 78 Johnson v. Independent School District No. 4, 921 F.2d 1022, 1026 (10th Cir. 1990)

79 Cordrey v. Eukert, 917 F.2d 1460, 1466 (6th Cir. 1990)

80 Doe v. Board of Education of Tullahoma City, 9 F.3d 455, 458 (6th Cir. 1993) 81 Oberti v. Bd. of Educ., 995 F.2d 1204 (3d Cir. 1993)

22 
Oberti held that the school district has the burden of proof at the due process administrative 

hearing level, and at the U. S. District Court level, even if the school district prevailed at the 

administrative hearing. 

The Court explained that: 

In reviewing the decision of a state agency under IDEA, the district court “must make an 

independent determination based on a preponderance of the evidence.” Geis v. Bd. of 

Educ., 774 F.2d 575, 583 (3d Cir. 1985). Given that the district court must independently 

review the evidence adduced at the administrative proceedings and can receive new 

evidence, we see no reason to shift the ultimate burden of proof to the party who 

happened to have lost before the state agency, especially since the loss at the 

administrative level may have been due to incomplete or insufficient evidence or to an 

incorrect application of the Act.82 

Relying on Lascari and Engel, Law, Culture, and Children with Disabilities, 1991 Duke L.J. at 

187-94, the Court explained: 

In practical terms, the school has an advantage when a dispute arises under the Act: the 

school has better access to the relevant information, greater control over the potentially 

more persuasive witnesses (those who have been directly involved with the child’s 

education), and greater overall educational expertise than the parents. 

In Oberti, the Third Circuit departed from the prior rulings in other circuits and aligned with the 

New Jersey Supreme Court. 

E. Clyde K. (1994) 

In 1994 the Ninth Circuit, in Clyde K., aligned with Oberti and departed from the Fifth, Sixth 

and Tenth Circuits. Clyde K. held that the “school clearly had the burden of proving at the 

administrative hearing that it complied with the IDEA.” However, if parents lost at the 

administrative hearing, the Court explained that “we join the substantial majority of the circuits 

that have addressed this issue by placing the burden of proof on the party challenging the 

administrative ruling.”83 

In other words, the school district had the burden of proof in the special education due process 

hearing, i.e., administrative hearing. However, on appeal, the party that lost in the administrative 

hearing had the burden of proving that the lower level decision is incorrect and should be 

overturned. 

82 Oberti at page 1219 83 Clyde K. v. Puyallup School District No. 3, 35 F.3d 1396, 1398 (9th Cir. 1994) 

23 
F. E.S. (1998), Walczak (1998), and Blackmon (1999) 

In 1998 the Eighth Circuit, in E.S., relying on the reasoning in the Ninth Circuit’s Clyde K., held 

that “the District clearly had the burden of proving that it had complied with the IDEA.”84 

Several months later, the Second Circuit joined with the Third, Eighth, and Ninth Circuits and 

the New Jersey Supreme Court. In Walczak, the Second Circuit held that in a due process 

hearing, “school authorities have the burden of supporting the proposed IEP.”85 

At this point, the Fifth, Sixth, and Tenth Circuits had aligned with the original Tatro / Alamo 

Heights position. The Second, Third, Eighth, and Ninth Circuits followed the Lascari / Oberti 

rule. A clear split among Circuits had developed. 

In 1999, the Eighth Circuit, in Blackmon, relied on the earlier E.S. case and held that “At Grace’s 

administrative due process hearing the School District had the burden of proving that its 

proposed IEP would satisfy the requirements of the IDEA and provide Grace with a free 

appropriate public education.”86 

G. Devine (2001) 

In 2001, the Eleventh Circuit, in Devine,87 issued a ruling in regard to a 1992-1993 IEP. This 

case was unusual and drawn out. The parent participated in and agreed with IEPs created for the 

1989-1990, 1990-1991, and 1991-1992 school years. The parent requested a private residential 

program for the 1992-1993 school year and the school did not agree. The due process hearing 

was in 1993 and the Hearing Officer held that the proposed IEP was not appropriate. However, 

he did not agree that the child needed a residential placement. The parents then moved to 

Massachusetts, but continued the litigation. In October, 1993, the parents appealed the adverse 

decision and filed a Complaint in the U. S. District Court. On the second day of trial, the father, a 

non-lawyer, requested permission to discharge counsel and represent his son. The District Court 

refused his request. That issue was appealed to the Eleventh Circuit which upheld the denial.88 

The father was not permitted to represent his son. The case returned to the District Court. After 

an adverse ruling from the District Court, the parents again appealed to the Eleventh Circuit. 

The parents asked the Eleventh Circuit to adopt the Lascari standard. The school district asked 

the Court to follow the rule of the Fifth Circuit in Tatro. The Court discussed the split among the 

circuits and concluded: 

We believe the Fifth Circuit holds the better view, especially in the light of our circuit’s 

previous recognition that great deference must be paid to the educators who develop the 

84 E.S. v. Independent School District No. 196, 135 F.3d 566, 569 (8th Cir. 1998) 85 Walczak v. Florida Union Free School District, 142 F.3d 119, 122 (2d Cir. 1998) 

86 Blackmon v. Springfield R-XII School District, 198 F.3d 648, 658 (8th Cir. 1999) 

87 Devine v. Indian River County School Board, 249 F.3d 1289 (11th Cir. 2001) 88 Devine v. Indian River County School Bd., 121 F.3d 576 (11th Cir. 1997) 

24 
IEP . . . In the present case, because it is the parents who are seeking to attack a program 

they once deemed appropriate, the burden rests on the parents in this IEP challenge.89 

H. T. B. (2004) 

In March, 2004, the First Circuit in T.B. v. Warwick School Committee,90 commented on a 

Hearing Officer’s statement in a due process decision. The Hearing Officer reported that the 

burden of proof shifted from the parent to the school district during the presentation of the case. 

The First Circuit, in a footnote, aligned itself with the Second, Third, Eighth, and Ninth Circuits 

explaining that: 

This statement is puzzling because the school district always bears the burden in the 

due process hearing of showing that its proposed IEP is adequate. (Cites omitted.) 

(Emphasis added.) 

By March, 2004, the Fifth, Sixth, Tenth and Eleventh Circuits were aligned with the original 

Tatro / Alamo Heights position. The First, Second, Third, Eighth, and Ninth Circuits followed 

the Lascari / Oberti rule. The split continued. 

I. Weast v. Schaffer (2004) 

On July 29, 2004, the Fourth Circuit issued the ruling in Weast v. Schaffer.91 The Court 

summarized the split among Circuits as follows: 

Three circuits assign the burden to the parents, and four (perhaps five) assign it to the 

school system. The Sixth Circuit holds to “the traditional burden of proof” and requires 

the parents challenging an IEP to establish both its procedural and substantive 

deficiencies. (Cites omitted.) The Fifth and Tenth Circuits also assign the burden of proof 

to the parents, but for a different reason. According to these circuits, because the statute 

relies on the expertise of education professionals in local school systems, their decisions 

about the substantive terms of an IEP are owed deference; as a result, the parents bear the 

burden of proving why an IEP is deficient. (Cites omitted.) 

On the other side the Third Circuit assigns the burden of proof to school systems when 

their IEPs are challenged by parents in administrative proceedings. (Cites omitted.) 

( . . . holding that when an administrative decision upholding an IEP is challenged in 

district court, the school district has the burden of proof because of its expertise and 

access to information and witnesses). Three other circuits, the Second, Eighth, and Ninth, 

have announced without explanation that the school system has the burden of proving the 

adequacy of the IEP at the administrative hearing. (Cites omitted.) Finally, the D.C. 

Circuit assigned the burden of proof to a school system when an IEP was challenged as 

procedurally deficient, noting that “[t]he underlying assumption of the Act is that to the 

89 Devine (2001) at page 1292

90 T.B. v. Warwick School Committee, 361 F.3d 80, 82 (1st Cir. 2004)

91 Weast v. Schaffer, 377 F. 3d 449 (2004) 

25 
extent its procedural mechanisms are faithfully employed, [disabled] children will be 

afforded an appropriate education.” (Cite omitted.) It is not clear how the D.C. Circuit 

would assign the burden in a case such as this one where only the substance of the IEP is 

challenged.92 

The Fourth Circuit held that parents who are “attacking the terms of an IEP” must “bear the 

burden” of proof: 

Congress enacted the IDEA with the clear intention of deferring to local school 

authorities for the development of educational plans for disabled children. (Cites 

omitted.) And while Congress “[e]ntrust[s] a [disabled] child’s education to state and 

local agencies” under the IDEA, it “protect[s] individual children by providing for 

parental involvement [and for certain assistance to parents] . . . in the formulation of [a] 

child’s [IEP].” Rowley, 458 U.S. at 208. Under this statutory arrangement, it is reasonable 

to require parents attacking the terms of an IEP to bear the burden of showing why it is 

deficient.93 

Contrary to the assertion by the Fourth Circuit, Public Law 94-142, the EAHCA of 1975, was 

not enacted “with the clear intention of deferring to local school authorities for the development 

of educational plans for disabled children.” It was enacted to correct the educational abuses 

evidenced by PARC and Mills. Nothing in either the original Public Law 94-142 or IDEA 2004 

provides a clear intent to provide deference to school districts for the development of an IEP. 

The law places the burden on the school district to development the document, jointly, with the 

parents. 

Judge Luttig did not agree with the majority. He explained that: 

Not only does the school district have the affirmative, statutory obligation under the 

IDEA to develop a suitable education program (IEP) for every disabled child, the school 

district is also in a far better position to demonstrate that it has fulfilled this obligation 

than the disabled student’s parents are in to show that the school district has failed to do 

so. Accordingly, I would hold that the school district - and not the comparatively 

uninformed parents of the disabled child - must bear the burden of proving that the 

disabled child has been provided with the statutorily required appropriate educational 

94 resources.

J. In Summation: The Split Among Circuits 

The Circuits have split into two camps: those aligned with the Tatro / Alamo Heights rule and 

those aligned with the Lascari / Oberti rule. 

92 Weast, 377 F. 3d at pages 452-453 

93 Weast at page 456 

94 Weast at page 456-457 

26 
The Circuits agree that if a parent disputes the appropriateness of an IEP, it is the parent’s burden 

to “place in issue the appropriateness of the IEP.” After that, the issue is whether the parent has 

the burden of proving that the IEP is not appropriate or whether the school district has the burden 

of proving that the IEP is appropriate. 

The splits among the Circuits is based on several competing principles. Should the party 

attacking the terms of an IEP bear the burden of showing why the IEP is not appropriate? Or, 

should the party that prepared the IEP and has greater expertise and resources have the burden of 

proving that the IEP is appropriate? 

When a dispute between parents and a school district arises, should the adversarial nature of the 

proceedings yield to obtaining the right result for the [ ] child? Or, should deference be paid to 

the educators who developed the IEP? 

Several briefs filed on behalf of Weast have argued that IDEA is a “Spending” statute which 

restricts the U. S. Supreme Court’s ability to mandate that school districts have the burden of 

proof. The Fifth Circuit in Tatro and Alamo Heights, nor any of the Circuits aligned with Tatro / 

Alamo Heights, took that position. The briefs filed on behalf of Weast, like the position taken by 

the Washington, D. C. public schools in Mills, expressed concerns about the financial impact of 

assigning the burden to school districts. Again, none of the Circuit Courts that adopted the Tatro 

/ Alamo Heights rule expressed concerns about the financial impact of the burden of proof. 

To understand these issues and how the split between circuits will be resolved, one must look at 

U. S. Supreme Court case law about which party bears the burden of proof when the statute is 

silent. Over the years, the Court has been confronted with this issue. Their decisions provide 

guidance in Schaffer v. Weast and how this may be resolved. 

VII. Analysis of Burden of Proof Case Law from The U. S. 

 Supreme Court 

In enacting a law, Congress generally assigns rights and responsibilities, but may not specify 

which party has the burden of proof in a dispute. 

Assigning the burden of proof is more than a mere procedural issue. Shifting the burden can have 

absolute control over the outcome. This “is a rule of substantive law . . .”95 

95 American Dredging Co. v. Miller, 510 U.S. 443, 454 (1994) 

27 
A. Tinker (1914) - Position of Advantage, Policy of the Statute 

In 1914, in Tinker,96 the U. S. Supreme Court ruled on assignment of the burden of proof in a 

collection case against an “Osage Indian.” The Indian Appropriation Act did not permit loans 

and extensions of credit by traders beyond a certain percentage of the debtor’s income. The 

statute did not provide a burden of proof standard. Justice Holmes enunciated a standard, not 

from formal logic or law, but simply that the person who holds the position of advantage has the 

burden of proof. 

Justice Holmes found that the trader “occupied the position of advantage and that rather than 

formal logic determines the burden of proof.”97 (Emphasis added.) Justice Holmes relied on the 

policy of the statute. 

The court is of opinion that, in view of the policy of the statute, the relative position of 

the parties and the protection necessarily extended to Indians, the burden was on the 

plaintiff [trader] not only to bring his claim within the permission of the statute in fact, as 

he was warned by its letter that he must, but also to prove that he had done so, in case of 

dispute.98 (Emphasis added.) 

B. Campbell (1961) - So That Justice Shall Be Done 

In 1961, in Campbell,99 a criminal defendant sought to obtain an “Interview Report” from police 

Investigator Toomey. The District Court “placed on the criminal defendants the burden of 

subpoenaing the government investigator as ‘their witness’ in order to support their request for 

the Interview Report.” 

The Court noted that the “statute says nothing of burdens of producing evidence.”100 

The Supreme Court held that the Court, on its own Motion, could call Toomey as a witness, or 

that the Government should be required to produce him. 

Not only did the Government have the advantage over the defense of knowing the 

contents of the Interview Report but it also had the advantage of having Toomey in its 

employ and presumably knew, or could readily ascertain from him, the facts about the 

interview. In addition to the consideration that the interest of the United States in a 

criminal prosecution . . .” is not that it shall win a case, but that justice shall be 

done . . . ” (Cite omitted.)

101 (Emphasis added.) 

96 Tinker v. Midland Valley Mercantile Co., 231 U.S. 681 (1914) 

97 Tinker at page 683 

98 Tinker at page 682 

99 Campbell v. United States, 365 U.S. 85 (1961) 

100 Campbell at page 95 101 Campbell at page 96 

28 
So “that justice shall be done,” the Court, on its own Motion, or the Government, should have 

called Toomey to the stand. This would have been the right result. Compare with this with 

Lascari, “the adversary nature of the proceedings should yield to obtaining the right result for 

the [ ] child.”102 Compare this with Dunstan’s inability to submit any evidence, allowing the 

school district to prevail without presenting any exhibits or testimony. Was this the right result? 

(Dunstan will be discussed later.) 

C. Keyes (1973) - Policy and Fairness 

In 1973, while Congress was hearing testimony about the Mills and PARC cases and the need for 

a law to provide children with disabilities the right to a free appropriate education, the U. S. 

Supreme Court issued a ruling in Keyes,

103 a school desegregation case. 

In Keyes, parents in Denver Colorado filed suit against the school district charging that “by use 

of various techniques such as the manipulation of student attendance zones, schoolsite selection 

and a neighborhood school policy, created or maintained racially or ethnically (or both racially 

and ethnically) segregated schools throughout the school district, entitling petitioners to a decree 

directing desegregation of the entire school district.” The District Court found that “the 

respondent School Board had engaged over almost a decade after 1960 in an unconstitutional 

policy of deliberate racial segregation.”104 

[W]e have held that where plaintiffs prove that a current condition of segregated 

schooling exists within a school district where a dual system was compelled or authorized 

by statute at the time of our decision in Brown v. Board of Education, 347 U.S. 483 

(1954) (Brown I), the State automatically assumes an affirmative duty “to effectuate a 

transition to a racially nondiscriminatory school system,” . . . (cites omitted) that is, to 

eliminate from the public schools within their school system “all vestiges of stateimposed segregation.” (Cites omitted.)105 (Emphasis added.) 

Twenty years later, the same pattern of discrimination and “segregated schooling” continued for 

children with disabilities. In 1975, Congress found that: 

Before the date of enactment of the Education for All EAHCA of 1975 (Public Law 94-

142), the educational needs of millions of children with disabilities were not being fully 

met because- 

(A) the children did not receive appropriate educational services; 

(B) the children were excluded entirely from the public school system and from 

being educated with their peers;106 

102 Lascari at page 1188 “right result” 103 Keyes v. School Dist. No. 1, 413 U.S. 189 (1973)

104 Keyes at page 198 

105 Keyes at page 200 106 20 U.S.C. §1400(c)(2) - IDEA 2004 

29 
As in Brown, the State should assume “an affirmative duty . . . to eliminate from the public 

schools within their school system ‘all vestiges of state-imposed’”107 exclusion of children with 

disabilities from a free, appropriate public education. As a remedial measure, the EAHCA of 

1975 imposed an affirmative duty on states to provide a free appropriate public education for 

children with disabilities. 

In Keyes, the Court advised that the burden shifting principle is not new. Quoting 9 J. Wigmore, 

Evidence § 2486, at 275 (3d ed. 1940), the Court explained that the application of the burden of 

proof “is merely a question of policy and fairness based on experience in different 

situations.”108 (Emphasis added.) 

Query? Is it the policy of IDEA that Bill Dunstan’s right to an appropriate education shall be 

determined by the gamesmanship tactics and litigation strategies, without regard to the right 

result? In Dunstan, was it fair that the school district could prevail in a due process hearing 

without submitting any exhibits or calling any witnesses? 

D. Matthews (1976) - Three Factors: Erroneous Deprivation of 

 an Education 

In 1976, in Matthews v. Eldridge,109 Justice Powell explained that the “issue in this case is 

whether the Due Process Clause of the Fifth Amendment requires that prior to the termination of 

Social Security disability benefit payments the recipient be afforded an opportunity for an 

evidentiary hearing.”110 

In resolving this issue, the Court explained that due process “generally requires consideration of 

three distinct factors: 

 First, the private interest that will be affected by the official action; 

 second, the risk of an erroneous deprivation of such interest through the procedures 

used, . . . and 

 finally, the Government’s interest, including the function involved and the fiscal and 

administrative burdens that the additional or substitute procedural requirement would 

entail.111 (Emphasis added.) 

In a special education dispute, the private interest that will be affected is whether the disabled 

child receives a free appropriate education designed to meet the child’s unique needs so the child 

is prepared for further education, employment, and independent living,112 i.e., the purpose of 

IDEA 2004. 

107 Keyes at page 200 

108 Keyes at page 209 

109 Matthews v. Eldridge, 424 U.S. 319 (1976) 

110 Matthews at page 323 

111 Matthews at page 335 112 20 U.S.C. §1400(d)(1) - IDEA 2004 

30 
The second factor involves “erroneous deprivation of such interest,” i.e., depriving a child of 

an appropriate education, causes illiteracy, unemployment, dependency, and crime. The risk of 

an erroneous deprivation of such an interest is apparent comparing the outcomes for Shannon 

Carter and Bill Dunstan. Both cases will be discussed in the next few pages. 

The risk of an erroneous deprivation of an education is too high to allow this to be decided by 

legal maneuvering and litigation tactics and strategies. 

As the Court held in Brown: 

Today, education is perhaps the most important function of state and local 

governments. . . It is required in the performance of our most basic public 

responsibilities . . . It is the very foundation of good citizenship. Today it is a principal 

instrument in . . . preparing [a child] . . . for later professional training, and in helping him 

to adjust normally to his environment. In these days, it is doubtful that any child may 

reasonably be expected to succeed in life if he is denied the opportunity of an education. 

Such an opportunity, where the state has undertaken to provide it, is a right which must 

be made available to all on equal terms.113 (Emphasis added.) 

The third factor in Matthews, “fiscal burden,” is not onerous on a school district. If school 

makes a mistake, the worst that can happen, from a financial and economic perspective, is that 

some additional sums may be paid and a child receives an education that may be more than the 

minimum required. 

A child may receive an extra hour of speech or occupational therapy, or a few days of “Extended 

School Year” (ESY) services, or Clean Intermittent Catherization (CIC). Perhaps the child’s 

parents may be reimbursed for tuition at a private special education school such as Trident 

Academy which taught Shannon Carter how to read, write, spell and do arithmetic.114 Shannon 

Carter was featured in a New York Times article by Brent Staples, “How the Clip ‘N Snip’s 

Owner Changed Special Education.”115 

The people of Florence, S.C., know Shannon Carter as the owner of Shannon’s Clip ‘N 

Snip, a barber shop where the locals get haircuts and conversation. The Clip ‘N Snip has 

room for seven barber chairs, but Shannon is limiting the business to two for the moment 

and renting out space until the economy improves enough for the barbering business to 

expand. Shannon’s public school teachers are no doubt surprised to see her running a 

business and working out a financial plan. 

113 Brown v. Board of Education, 347 U. S. 483, 493 (1954) 114 Florence County Sch. Dist. IV v. Shannon Carter, 510 U.S. 7 (1993). Shannon graduated from Trident Academy 

reading at the high school level. The author of this paper represented Shannon Carter before the U.S. Court of 

Appeals for the Fourth Circuit and before the United States Supreme Court. 115 New York Times, How the Clip ‘N Snip’s Owner Changed Special Education, January 5, 2002

31 
If an error was committed by awarding reimbursement to Shannon’s parents for her tuition at 

Trident Academy, the error was financial in nature. Shannon became the owner of a successful 

business, and lives independently.116 

Query: Shannon’s IEP stated that Shannon’s reading would improve from the 5.4 to the 5.8 

grade equivalent level as measured by the Woodcock Reading Mastery Test after a year of 

special education. Shannon, as a sixteen year old, was reading at the fifth grade level and about 

to enter the tenth grade.117 The school district proposed only four months gain and drew a line in 

the sand. Should the courts and parents deferred to the “expertise” of the school district? Would 

the outcome for Shannon be different, given deference to the school districts educational plan to 

increase her reading by four tenths of a grade level after a year of special education? 

As early as 1972, in Mills, and continuing through the arguments in Carter and Schaffer, school 

districts have argued that if a Court requires additional services, or places the burden of proof on 

the school district, the financial burdens will be insurmountable. 

Since the Elementary and Secondary Education Act was passed in 1965, the federal government 

has spent “more than $321 billion (in 2002 dollars) to help educate disadvantaged children.” 

In a report entitled “Federal Spending on K-12 Education (Elementary and Secondary Education 

Act)”118 the Department of Education included several graphs. One graph showed the 

relationship between increased federal spending and reading scores between 1965 and 2000. 

Despite dramatic increases in funding, the reading scores did not improve. According to the text 

accompanying the graphs: 

Since the Elementary and Secondary Education Act first passed Congress in 1965, the 

federal government has spent more than $321 billion (in 2002 dollars) to help educate 

disadvantaged children. Yet nearly 40 years later, only 32 percent of fourth-graders can 

read skillfully at grade level. Sadly, most of the 68 percent who can’t read well are [ ] 

children and those who live in poverty. 

Another graph, entitled “The United States Department of Education Budget Service and The 

Nation’s Report Card. Fourth Grade, Reading 2000,” noted that: 

Math proficiency scores for twelfth graders were reported from 1990 to 2000. The scores 

remained below 20%. 

Science proficiency scores for twelfth graders were reported from 1996 to 2000. The 

scores steadily declined from slightly above 20% to below 20% during that time. 

116 See 20 U.S.C. §1400(d) - Purpose of IDEA. 

117 Carter v. Florence County School District IV, 950 F. 2d 156 (4th. Cir. 1991) affirmed, Florence County School 

District IV v. Carter, 510 U.S. 7 (1993) 

118 http://www.ed.gov/nclb/overview/importance/edlite-index.html- last visited July 17, 2005 

and 

http://www.wrightslaw.com/nclb/fed.spending.graph.htm - last visited July 17, 2005 

32 
One graph, “Historic Increases for Education for 1996-2003,” compared the growth of funding 

expended for Education, Defense and Health and Human Services. Federal funding for 

Education increased by 132%, Health and Human Services increased by 96% and Defense 

increased by 48%. 

Forty years of increased spending has not led to improvements in educational achievement. The 

briefs in support of placing the burden of proof on parents stress the need to defer to the 

“expertise of professional educators.” How much deference is warranted when only twenty 

percent of twelfth graders are proficient in math and science? How much deference is warranted 

when the National Education Association filed suit to restrict the data collection and testing 

requirements of No Child Left Behind? 

E. International Brotherhood (1977) - Superior Access to the 

Proof 

In 1977, the United States filed suit against a motor freight carrier and the union that represented 

the company’s employees. In International Bhd. of Teamsters v. United States,

119 the 

“Government alleged that the company had engaged in a pattern or practice of discriminating 

against [ ] and Spanish-surnamed persons . . .” who were hired in lower paying, less desirable 

jobs.120 

The discriminatory pattern and practice “did create a greater likelihood that any single decision 

was a component of the overall pattern. Moreover, the finding of a pattern or practice changed 

the position of the employer to that of a proved wrongdoer.”121 

Finally, the employer was in the best position to show why any individual employee 

was denied an employment opportunity. Insofar as the reasons related to available 

vacancies or the employer’s evaluation of the applicant’s qualifications, the company’s 

records were the most relevant items of proof. If the refusal to hire was based on other 

factors, the employer and its agents knew best what those factors were and the extent to 

which they influenced the decisionmaking process.122 (Emphasis added.) 

The Court explained that “[p]resumptions shifting the burden of proof are often created to reflect 

judicial evaluations of probabilities and to conform with a party’s superior access to the proof.123 

The burden of proof shifted from the discriminated employees to the employer. 

In special education disputes, the school district, like the employer, is in the best position to 

explain why the school district refused to increase the remedial therapy, change an educational 

placement, or intensify the services a child could receive. Since 1975, it has been clear that when 

119 International Bhd. of Teamsters v. United States, 431 U.S. 324 (1977) 120 International Bhd at page 324 

121 International Bhd at page 359 

122 International Bhd at page 359 123 International Bhd at page 359 

33 
a school district “(A) proposes to initiate or change; or (B) refuses to initiate or change, the 

identification, evaluation, or educational placement of the child, or the provision of a free 

appropriate public education to the child” the school district must provide the parents with 

written notice.124 

The written notice shall include: 

(A) a description of the action proposed or refused by the agency; 

(B) an explanation of why the agency proposes or refuses to take the action and a 

description of each evaluation procedure, assessment, record, or report the agency used as 

a basis for the proposed or refused action; 

. . . 

(E) a description of other options considered by the IEP Team and the reason why those 

options were rejected; and 

(F) a description of the factors that are relevant to the agency’s proposal or refusal.125 

Query? Is mailing the “Prior Written Notice” sufficient for the school district to meet its burden? 

In subsequent litigation, should the school district offer testimony and evidence that supports the 

basis of the Prior Written Notice? In Dunstan, there was no evidence that the school provided 

“Prior Written Notice” to the Guardian. If Baltimore had been required to provide the “Prior 

Written Notice” to the Guardian and Administrative Law Judge, and required to provide proof to 

support that document, would the result have been the same? 

In addition to providing the “written notice” to the parents, it is NCD’s position that the school 

district should also have the burden of proving that their position is appropriate. 

F. Concrete Pipe (1993) - Party with Information Has Burden 

In 1993, in Concrete Pipe,

126 an employer withdrew from a pension plan and “was assessed 

‘withdrawal liability’ under provisions of the Employee Retirement Income Security Act of 

1974”127 (ERISA) by the plan sponsor. 

Justice Souter explained that the incoherency of ERISA “is resolved by applying the canon 

requiring that an ambiguous statute be construed to avoid serious constitutional problems unless 

such construction is plainly contrary to Congress’s intent. Thus, the presumption is construed to 

place the burden on the employer to disprove an alleged fact . . .”128 

124 20 U.S.C. §1415(b)(3) - IDEA 2004. See also Paragraphs 13(e) and 13(f) of Judge Waddy’s Order in Mills (at 

880-881) that provided very detailed notification and procedural safeguards to protect the child if a dispute arose 

“regarding a child’s placement, denial of placement, or transfer” or suspension. 125 20 U.S.C. §1415(c) - IDEA 2004

126 Concrete Pipe & Prods. of Cal. Inc. v. Construction Laborers Pension Trust, 508 U.S. 602 (1993)

127 Concrete Pipe at page 605 128 Concrete Pipe at page 603 

34 
It is indeed entirely sensible to burden the party more likely to have information 

relevant to the facts about its withdrawal from the Plan with the obligation to demonstrate 

that facts treated by the Plan as amounting to a withdrawal did not occur as alleged. Such 

was the rule at common law.129 

. . . 

[W]e have a common obligation in each situation to resolve the uncertainty in favor of 

definite meaning, and the canon for resolving ambiguity applies with equal force when 

terminology renders a statute incoherent. In applying that canon here, we must give effect 

to the one conclusion clearly supported by the statutory language, that Congress 

intended to shift the burden of persuasion to the employer in a dispute over a 

sponsor’s factual determination. This objective can be realized without raising serious 

constitutional concerns simply by construing the presumption to place the burden on the 

employer to disprove a challenged factual determination by a preponderance. In so 

construing the statute we make no pretense to have read the congressional mind to 

perfection.130 (Emphasis added.) 

School districts are “more likely to have information relevant to” their educational resources, 

teachers, evaluations, and other data about the child with a disability. Either Congress intended 

to shift the burden to the parent in a dispute, or Congress intended to shift “the burden of 

persuasion to the” school district. Shifting the burden of persuasion to the school district “can be 

realized without raising serious constitutional concerns . . .” 

G. In Summation: Supreme Court Rulings - Ambiguous 

Statutes 

Many federal statutes provides duties and responsibilities to different parties and rules of 

procedure regarding the resolution of disputes. These rules of procedure and procedural 

safeguards may not include assignment of the burden of proof. When the U. S. Supreme Court is 

presented with such a case, the Court must look to the policy of the statute, the position of the 

parties and other factors to determine which party has the burden of proof. This is the Court’s 

task in Schaffer v. Weast. The federal special education law, originally known as the EAHCA of 

1975 and now as the Individuals with Disabilities Education Act of 2004, has never assigned the 

burden of proof to one party or another. The rationale and factors in previous U. S. Supreme 

Court cases provide guidance as to the correct ruling in Schaffer v. Weast. 

Cases from Tinker to Concrete Pipe have been consistent in assigning the burden of proof to the 

party more likely to have access to the information that explains their actions. The argument 

against this shift, as expressed in Matthews, relates to the interest, i.e., receiving an education, to 

the harm if there is a risk of loss in acquiring an education, and the economic burden if an 

erroneous ruling is issued and a better education is provided at a greater cost. 

In Tinker, Justice Holmes said that the policy of the statute and position of advantage is the key. 

In Campbell, the Court looked at which party had the advantage to determine what was 

129 Concrete Pipe at page 626 130 Concrete Pipe at page 629 

35 
necessary to ensure that “justice shall be done.” The party with the advantage had the burden. In 

Keyes, the Court explained that the answer “is merely a question of policy and fairness based on 

experience in different situations.” In Matthews, the Court looked at Due Process Clause of the 

Fifth Amendment and concluded that three factors must be considered: the private interest that 

would be affected, the risk of an erroneous deprivation of such interest, and the financial burden. 

International Brotherhood placed the burden on the party that “was in the best position to show 

why” an action was or was not taken because that party “knew best what those factors were and 

the extent that they influenced the decisionmaking process.” Concrete Pipe explained that “It is 

indeed entirely sensible to burden the party more likely to have information relevant to the facts . 

. .” In that instance, the Court explained that, despite the omission of language assigning the 

burden of proof to the employer, “Congress intended to shift the burden of persuasion to the 

employer . . .” 

When Congress enacted the EAHCA of 1975 and established the requirements for “Prior Written 

Notice,” Congress intended to provide detailed procedural safeguards for children and their 

parents. Congress intended that children with disabilities would be provided with a free, 

appropriate public education. Congress intended that school districts would provide clear written 

notice whenever they proposed to change a child’s educational program. Congress intended that 

if a school district denied a parent’s request for additional or changed services, the school district 

would provide the parent with clear written notice that included: 

(B) an explanation of why the agency proposes or refuses to take the action and a 

description of each evaluation procedure, assessment, record, or report the agency used as 

a basis for the proposed or refused action; 

. . . 

(E) a description of other options considered by the IEP Team and the reason why those 

options were rejected; and 

(F) a description of the factors that are relevant to the agency’s proposal or refusal.131 

Congress realized that school districts have the position of advantage and are in the best position 

to show why an educational program is or is not provided. Congress was aware that school 

districts are aware of the factors that affect the educational decisionmaking. Could Congress 

have intended that the school district explain why they proposed or refused to take action, but in 

the event of a dispute, shift the burden to the parent to show why the school district’s plan was 

not appropriate? Could Congress have intended that the statutory requirements were met by the 

mere notice, without any obligation to prove that the school’s proposal was appropriate? Given 

the educational status of children in the 1970’s, it is unlikely that Congress intended that children 

like Peter Mills had to prove that his exclusion from school was not appropriate. Given 25 years 

of non-enforcement and non-compliance by the U. S. Department of Education and the State 

Departments of Education and Local Education Agencies, as described five years ago by this 

Council in Back to School on Civil Rights,132 is it reasonable to assume that Congress now 

131 20 U.S.C. §1415(c)(1) - IDEA 2004 132 National Council on Disability, Back to School on Civil Rights (2000) 

36 
intends to shift the burden of proof to parents, even though “parents are still a main enforcement 

vehicle for ensuring compliance with IDEA?”133 

We have reviewed the evolution of special education and special education law, beginning with 

Mills and PARC, the evolution of the burden of proof split among the circuits, and how the U. S. 

Supreme Court resolved burden of proof issues when the statute is silent. 

We will now learn about three cases. Look at the facts in these cases and evaluate the burden of 

proof law from the Circuit Courts of Appeal and the U. S. Supreme Court decisions. 

VIII. Three Special Education Cases 

Brian Schaffer, Peter Mills and “classmates,” and “Bill Dunstan” are children with disabilities 

whose cases were decided by different courts. The educational and legal processes experienced 

by these children are typical of the circumstances when parents and schools disagree. These 

cases are useful examples because the administrative and court decisions were radically 

divergent. 

A. Peter Mills (Class Action Law Suit) – 1971 – Washington, 

D.C. 

In December, 1971, twelve year old Peter Mills, a dependent ward of the District of Columbia, 

was a behavior problem. He was expelled from school. He was a: 

committed dependent ward of the District of Columbia resident at Junior Village. He was 

excluded from the Brent Elementary School on March 23, 1971, at which time he was in 

the fourth grade. Peter allegedly was a ‘behavior problem’ and was recommended and 

approved for exclusion by the principal. Defendants have not provided him with a full 

hearing or with a timely and adequate review of his status. Furthermore, Defendants have 

failed to provide for his reenrollment in the District of Columbia Public Schools or 

enrollment in private school. On information and belief, numerous other dependent 

children of school attendance age at Junior Village are denied a publicly-supported 

education. Peter remains excluded from any publicly-supported education.134 

Thirteen year old Duane Blacksheare resided at St. Elizabeth’s Hospital and was a dependent 

ward of the District of Columbia. He had been expelled from school since the third grade 

because he was a “behavior problem.” 

George Liddell was eight years old. He was never permitted to attend public school because he 

was [ ]. 

133 Id. page 70 134 Mills v. Board of Education of the District of Columbia, 348 F. Supp. 866, 869 (D.D.C. 1972) 

37 
Steven Gaston was eight years old. He was described as being “slightly brain-damaged and 

hyperactive, and was excluded because he wandered around the classroom.” He had been 

excluded from school since September, 1969. 

Michael Williams, sixteen years old, also resided at St. Elizabeth’s Hospital. He suffered from 

epilepsy and slight retardation. He was excluded from school “because of health problems and 

school absences.” 

Janice King, thirteen years old, “is brain-damaged and [ ], with right hemiplegia, resulting from a 

childhood illness.” Judge Waddy explained that: “Despite repeated efforts by her parents, Janice 

has been excluded from all publicly-supported education.” 

Jerome James was twelve years old. He was [ ] and “has been totally excluded from public 

school.” 

Peter and these six “classmates” filed suit against the Washington D. C. Public Schools and 

sought certification as a class. “The action was certified as a class action under Rule 23(b)(1) and 

(2) of Federal Rules of Civil Procedure by order of the Court dated December 17, 1971.”135 The 

case was heard by Judge Waddy of the U.S. District Court of the District of Columbia. 

In his ruling on December 21, 1971, Judge Waddy ordered that: 

1. Defendants shall provide plaintiffs Peter Mills, Duane Blacksheare, Steven Gaston and 

Michael Williams with a publicly supported education suited to their (plaintiffs’) needs 

by January 3, 1972. 

2. Defendants shall provide counsel for plaintiffs, by January 3, 1972, a list showing, for 

every child of school age then known not to be attending a publicly supported educational 

program because of suspension, expulsion, exclusion, or any other denial of placement, 

the name of the child’s parent or guardian, the child’s name, age, address and telephone 

number, the date of his suspension, expulsion, exclusion or denial of placement and, 

without attributing a particular characteristic to any specific child, a breakdown of such 

list, showing the alleged causal characteristics for such nonattendance and the number of 

children possessing such alleged characteristics. 

3. By January 3, 1972, defendants shall initiate efforts to identify remaining members of 

the class not presently known to them, and also by that date, shall notify counsel for 

plaintiffs of the nature and extent of such efforts. Such efforts shall include, at a 

minimum, a system-wide survey of elementary and secondary schools, use of the mass 

written and electronic media, and a survey of District of Columbia agencies that may 

have knowledge pertaining to such remaining members of the class. By February 1, 1972, 

defendants shall provide counsel for plaintiffs with the names, addresses and telephone 

numbers of such remaining members of the class then known to them.136 

135 Mills at page 868 136 Mills at page 871 

38 
On August 1, 1972, Judge Waddy ordered that: 

The District of Columbia shall provide to each child of school age a free and suitable 

publicly supported education regardless of the degree of the child’s mental, physical or 

emotional disability or impairment. Furthermore, defendants shall not exclude any child 

resident in the District of Columbia from such publicly supported education on the basis 

of a claim of insufficient resources. 

Defendants shall not suspend a child from the public schools for disciplinary reasons for 

any period in excess of two days without affording him a hearing pursuant to the 

provisions of Paragraph 13.f., below, and without providing for his education during the 

period of any such suspension.137 

Paragraphs 13(e) and 13(f) of Judge Waddy’s Order provided detailed notification and 

procedural safeguards to protect the child if a dispute arose “regarding a child’s placement, 

denial of placement, or transfer” or suspension.138 

Judge Waddy further ordered at paragraph 13(e)(8) that: 

Defendants shall bear the burden of proof as to all facts and as to the 

appropriateness of any placement, denial of placement or transfer.139 

Thirty years ago, Judge Waddy ordered that Peter Mills, named members of his class, and all 

other children with disabilities were to be provided with a free education. If a dispute arose, the 

Washington D. C. public schools had the burden of proof as to all facts and to the 

appropriateness of any placement, denial of placement or transfer. Subsequently, jurists have 

pointed to his case and that of the plaintiff class as having formed the backbone of the procedural 

safeguards subsection of IDEA. (20 U.S.C. §1415) 

B. “Bill Dunstan” – 2002 – Baltimore, MD 

Bill Dunstan,140 in his quest for an education, did not fare as well as expelled children with 

disabilities who resided in Washington D. C. in the early 1970’s. 

137 Mills at page 878 138 Mills at pages 880-881 

139 Mills at page 881 140 The name Bill Dunstan is a pseudonym. The child’s name is unknown and has been redacted from the decision 

posted on the Maryland Office of Administrative Hearings website. The June 26, 2002 case is actually styled as 

XXXX XXXX v. Baltimore City Public Schools by the Maryland Office of Administrative Hearings (OAH) and is 

Case #: OAH NO.: MSDE-CITY-OT-200200192. It is available on the internet at the author’s website and 

Maryland OAH website at: 

http://www.wrightslaw.com/law/caselaw/2002/dunstanvbaltimorecity.pdf - last visited July 17, 2005 

and 

39 
Bill Dunstan was “put out of school” in February 2001 for excessive absences. Evidently, when 

he returned to school in the fall, he repeated the 11th grade. Bill Dunstan resided with his sister 

who was also his legal guardian. (Presumably his parents were deceased or unable to care for 

him.) According to his sister, Bill needed to learn how to read, count money, and fill out job 

applications.141 

On May 14, 2002, Bill’s sister requested a special education due process hearing in an effort to 

obtain remedial educational services for her brother. 

The Administrative Law Judge wrote that: “The [sister’s written] request for a Due Process 

Hearing filed against the Baltimore City Public Schools (BCPS) stated the following:” 

Bill Dunstan has been attending (redacted) High School since the year 2000. In February 

2001 he was put out of school for attendance. In July & August of 2001, I requested ARD 

or IEP meetings. One of the appropriators (sic) at the meeting recommended Bill repeat 

eleventh grade due to errors on the schools (sic) part. I agreed. When the school year 

started, Bill was once again, not in correct classes or academy, he was not receiving any 

type of remedial classes, such as Reading. Bill is Level 4 and has Learning Disabled 

documents (sic) from (redacted). (School has copies) None of his teachers knew that he 

was special-ed. (sic)142 

The Administrative Law Judge wrote: 

The Guardian chose to present her case herself. At the outset of the hearing I asked her to 

state what her complaint was and what relief she was seeking. She responded that her 

complaint was the “inappropriate placement of Bill for 2001-2002, and no promises 

kept.” As a remedy she stated that she was seeking appropriate placement and that Bill 

needs daily living skills. The Guardian testified that she believes that Bill needs classes to 

improve reading skills and comprehension skills and to learn how to count money and fill 

out job applications. Although she assert that the student has a current IEP and that she 

signed it, she did not present it for admission into the record. Further, she did not allege 

that there were any special education services required under the IEP that are not being 

provided to the student. She did not present any assessments or evaluations to show what 

special education services, if any, the student should be receiving. Her allegations that 

Bill is not in the correct classes is completely unsupported by any evidence. She 

presented no factual evidence, but instead spoke only in the most general of terms. (he’s 

not getting remedial classes; he needs reading/comprehension skills, needs to learn how 

to count money and fill out job applications).143 

http://www.msde.state.md.us/specialeducation/hearing_decisions2002/02-H-CITY-192.pdf - last visited July 17, 

2005 For ease of reading clarity, rather than using first and last name of XXXX, the child is named “Bill Dunstan” 

by the author. 

141 Dunstan at pages 5-6 

142 Dunstan at page 5 143 Dunstan at pages 5-6 

40 
On June 26, 2002, Bill Dunstan’s due process hearing was held. BCPS was represented by 

counsel. Bill and his sister had no counsel and no expert witnesses. 

The ALJ stated: 

It was clear that the Guardian, although well-intentioned, did not know how to go about 

presenting evidence to support her complaint.144 

Compare this statement with Judge Waddy’s Order in Mills that: 

Defendants shall bear the burden of proof as to all facts and as to the appropriateness of 

any placement, denial of placement or transfer.145 

Unlike Washington D. C. Public Schools, Baltimore City Public Schools did not have the 

“burden of proof as to all facts and as to the appropriateness of any placement, denial of 

placement or transfer.” 

After Bill Dunstan and his sister/guardian testified, Baltimore City Public Schools “made an oral 

Motion for Summary Decision at the conclusion of the Guardian’s case. In its Motion the BCPS 

alleged that the Guardian presented no genuine issue as to any material fact and that BCPS is 

entitled to prevail as a matter of law.”146 Baltimore City Public Schools had not presented 

witnesses or submitted any evidence. The Guardian, having the burden of proof, evidently failed 

to make a “prima facie” case. 

The case was dismissed.147 

What happened to Bill? Neither the school board attorney nor the Administrative Law Judge 

recall the case or subsequent outcome.148 We know that Bill was living with his sister in 2002 

and that evaluations and reports were completed seven to ten years before the Hearing. It is 

likely that these reports documented the presence of a learning disability ten years earlier. After 

ten years, Bill still could not read, fill out a job application, or count money. What happened? 

The Hearing was held on June 26, 2002. It is likely that Bill Dunstan never returned to school. 

Since he could not complete a job application or count money, what is Bill’s life like now? 

Research suggests that many like Bill may become incarcerated. On May 1, 2003, NCD 

published “Addressing the Needs of Youth with Disabilities in the Juvenile Justice System: The 

Current Status of Evidence-Based Research.”

149 150 The report explained that: 

144 Dunstan at page 6 

145 Mills at page 881 146 Dunstan at page 1 147 Dunstan at page 7 

148 The author talked with counsel for Baltimore City Schools and talked with the Administrative Law Judge. 

Neither person has any recollection of the case or any subsequent developments. 

149 National Council on Disability, Addressing the Needs of Youth with Disabilities in the Juvenile Justice System: 

The Current Status of Evidence-Based Research, (2003) at

http://www.ncd.gov/newsroom/publications/2003/juvenile.htm - last visited on July 17, 2005 

41 
[A]pproximately 10 percent of general population youth have a special education 

disability, compared with between 30 and 50 percent of incarcerated youth. 

. . . 

Some estimates suggest, for example, that 10 percent of youth in correctional facilities 

have specific learning disabilities (SLD), while others suggest that the percentage is 

closer to 36 percent. Estimates of the prevalence of emotional disturbance (ED) range 

upwards of 50 percent; for SED, estimates run as high as 20 percent. Up to 12 percent of 

incarcerated youth are labeled with mental retardation. Research suggests that attention 

deficit hyperactivity disorder (ADHD) is four to five times more prevalent in correctional 

facilities than in schools. Between 20 and 50 percent of incarcerated youth are estimated 

to have ADHD. Research suggests that learning disability and emotional disturbance are 

the most common types of disabilities among youth in correctional settings. (Cites 

omitted.) 

The prevalence of learning and emotional disturbance disabilities among incarcerated 

youth appears to have increased more than the prevalence for other disabilities has. 

Between 1993 and 1997, for example, the number of youth with disabilities of any kind 

in correctional facilities rose from roughly 12,500 to 16,000, an increase of 28 percent. 

Few national, state, or even local studies provide representative estimates of the 

prevalence of disabilities among children and youth at risk of engaging in delinquency or 

among those already in the juvenile justice system. One exception, focusing on learning 

disabilities, involved 

[A] study conducted by the National Center on State Courts . . . [which] relied on 

large, representative samples. It indicated that “36 percent of incarcerated 

juveniles were found to have a learning disability, and youngsters with learning 

disabilities were found to be more than twice as likely to commit a delinquent 

offense than their non-learning-disabled counterparts.” (Note: All cites in 

preceding paragraphs omitted.) 

The purpose of IDEA 2004 is to: 

(A) to ensure that all children with disabilities have available to them a free appropriate 

public education that emphasizes special education and related services designed to meet 

their unique needs and prepare them for further education, employment, and independent 

living; [and] 

(B) to ensure that the rights of children with disabilities and parents of such children are 

protected;151 

150 See also The Urban Institute, Addressing the Needs of Youth with Disabilities in the Juvenile Justice System: The 

Current State of Knowledge (2003) at http://www.urban.org/UploadedPDF/410885_youth_with_disabilities.pdf - 

last visited July 17, 2005 

151 20 U.S.C. §1400(d)(1) 

42 
Did Baltimore provide Bill with an education designed to meet his unique needs? Did Baltimore 

prepare Bill Dunstan for further education, employment and independent living? 

Who protected his rights, and the rights of his sister guardian? Using trial tactics and strategies 

and “gamesmanship,” did the system allow Baltimore City Public Schools to prevail, without 

submitting any evidence or testimony to prove that the school provided Bill with an education 

designed to meet his needs and enable him to become a productive member of society? 

Later that year, in another Maryland courtroom, Judge Messitte explained that if the burden of 

proof is on the child and parent, a “school district could rest without having to produce any 

evidence.” He wrote in a footnote: 

This Court would add a further observation: The Congressional statements and declarations 

that appear at the beginning of the IDEA refer to diverse children, . . . in particular, 

economically disadvantaged children. Strictly speaking, if parents in those categories have 

the burden of persuasion at the administrative level, their failure to put on a prima facie case 

would mean that the school district could rest without having to produce any evidence in 

justification of the IEP. On the other hand, parents who can afford to retain counsel and 

experts, while still having the burden of persuasion, could at least force the school district to 

produce evidence in support of the IEP.152 

Judge Messitte anticipated the outcome in a case such as Bill Dunstan v. Baltimore City Public 

Schools. 

In Dunstan, the ALJ implied that the sister was at fault because she did not retain an attorney and 

did not know how to submit documents into evidence. 

Bill was a child with a disability who had an IEP. Baltimore City Public Schools would have a 

file on Bill Dunstan with IEPs and evaluations that accumulated over ten years. The school 

district possessed all evidence needed for the ALJ to determine if Baltimore was providing Bill 

with a free appropriate education designed to meet Bill Dunstan’s unique needs and prepare him 

for employment and independent living. Baltimore City Public Schools possessed the evidence 

that the ALJ could have used to determine if Bill could read, count money and fill out job 

applications. The rule of law in that courtroom and the Maryland Office of Administrative 

Hearings was that the sister had to meet the burden and prove that Baltimore had failed her 

brother. 

C. Brian Schaffer – 2005 – Montgomery County, Maryland 

Next, we look at Brian Schaffer’s case. It will be heard in the U.S. Supreme Court and is the 

focus of the burden of proof question pending before the Court. 

152 Weast v. Schaffer (Schaffer II), 240 F. Supp. 2d 396 (D. Md. 2002) Footnote 8 

43 
Brian was born on May 13, 1984.153 He attended a small private school from kindergarten 

through the seventh grade. During those year, he had a language impairment, attention deficit 

disorder, auditory processing disorder, and other disabilities. The private school had small 

classes and provided Brian with significant accommodations. In the fall of the seventh grade, the 

school staff told Brian’s parents that he needed to attend a school that may meet his needs. 

Private evaluators agreed with the private school and recommended that Brian attend a “small, 

self-contained, full-day special education program.” 

Brian’s parents contacted Montgomery County Public Schools (MCPS) and requested that Brian 

be evaluated for their special education program. MCPS found Brian eligible for services but 

disagreed with the private school staff and private evaluators about the severity of his disorders 

and intensity of services. MCPS asserted that Brian did not need a private program and suggested 

that he attend regular public school classes that utilized an “inclusion model.” 

On the advice of the private school staff and independent evaluators, the parents argued that their 

son would be damaged in the proposed public school program. The parents enrolled Brian into a 

private special education school that teaches learning and language disabled students in small 

classes. The parents noted that MCPS proposed a less intense program with a higher student 

teacher ratio, than the original private school where Brian was failing. 

The parents continued to request that MCPS provide their son with an appropriate education. 

Then, alleging that the school district failed to provide their son with a free appropriate 

education, the parents requested a due process hearing.154 

On July 9, 1998, the ALJ said the decision about which side had the “burden of proof” was 

critical to the outcome. He said that “deference” is owed to the public school’s IEP. Relying on 

the Fifth Circuit’s decision in the Alamo Heights burden of proof case,155 he found that the 

parents failed to meet their burden of proving that Montgomery County’s IEP was not 

appropriate and denied their request for tuition reimbursement.156 

The Schaffers appealed to the U. S. District Court. On March 15, 2000, Judge Peter J. Messitte, 

relying on Lascari,157 the 1989 New Jersey Supreme Court case, held that the school district had 

the burden of proof,158 and remanded the case back to the ALJ. Montgomery County appealed to 

the U. S. Court of Appeals for the Fourth Circuit. 

The case continued at two levels: on remand at the Maryland Office of Administrative Hearings 

and on appeal before the U. S. Court of Appeals for the Fourth Circuit. 

153 Source: Schaffer v. Weast Joint Appendix filed with the U. S. Court of Appeals for the Fourth Circuit 

154 If a school district fails to offer FAPE to a child with a disability, pursuant to Burlington School Comm. v. Dept. 

of Education, 471 U.S. 359 (1985), Florence County Sch. Dist. IV v. Carter, 510 U.S. 7 (1993) and 20 U.S.C. 

§1412(a)(10) parents are entitled to reimbursement for the reasonable costs of a private school education.

155 Alamo Heights Independent School District v. State Board of Education, 790 F.2d 1153 (5th Cir. 1986) 156 #98-MSDE-MONT-OT-016662, July 9, 1998 DP 1 decision, ALJ Nichols 

157 Lascari v. Bd. of Educ. of Ramapo Indian Hills Reg. High Sch. Dist., 116 N.J. 30, 560 A.2d 1180 (NJ 1989)

158 Brian S. v. Paul Vance, U. S. District Court, Maryland, March 15, 2000, Fourth Circuit Joint Appendix, Page 65,

at 77 

44 
Because of Judge Messitte’s Order, at the second due process hearing, the burden of proof was 

now on the school district. In the second Administrative Hearing, the ALJ found that the 

“inclusion model” proposed by the school district was not appropriate for Brian. He found that 

the “IEP had no goals to address [Brian’s] severe auditory deficit (perception of sound), which is 

responsible for his reading problem, and no goals to address his articulation problem.”159 

On November 27, 2000, the ALJ denied the parents’ request for full reimbursement for three 

years tuition. Instead, he ordered partial reimbursement for the 1998-1999 school year.160 Both 

sides appealed to the U. S. District Court. 

On December 4, 2000, between the second Administrative Hearing and the second appeal to the 

U.S. District Court, the Fourth Circuit heard oral argument and learned that the parents partially 

prevailed at the Administrative Hearing. On January 10, 2001, the Fourth Circuit vacated the 

first District Court order on burden of proof and remanded the case back to the District Court for 

a ruling on the new decision from the second Administrative Hearing and renewed argument as 

to which side had the burden of proof.161 

On November 21, 2002, on remand from the Fourth Circuit and pursuant to the cross-appeal by 

parents and school district, Judge Messitte (the same judge who had ruled on the original burden 

of proof issue) ordered full reimbursement for the 1998-1999 school year162 and denied 

reimbursement for the 1999-2000 and 2000-2001 school years.163 

Montgomery County appealed reimbursement for the 1998-1999 school year to the Fourth 

Circuit. On July 29, 2004 the Fourth Circuit reversed Judge Messitte and ruled in favor of 

Montgomery County.164 Addressing the burden of proof argument, the Court wrote: 

We believe that when parents challenge the adequacy of an IEP, they should lose if no 

evidence is presented . . . Congress enacted the IDEA with the clear intention of deferring 

to local school authorities for the development of educational plans for disabled 

children . . . Under this statutory arrangement, it is reasonable to require parents attacking 

the terms of an IEP to bear the burden of showing why it is deficient.165 

Judge Luttig, following the Lascari / Oberti rule, dissented.166 

159 MSDE-MONT-OT-00000214, Schaffer v. Montgomery County Public Schools, November 27, 2000, Fourth 

Circuit Joint Appendix, Page 82, at 104 

160 MSDE-MONT-OT-00000214, November 27, 2000, 2000 DP 2 decision Nichol

161 Case # 00-1471, The opinion is found at Schaffer v. Vance, Case # 00-1471, 2 Fed. Appx. 232 (4th Cir. 2001) 

(per curium) 

162 Weast v. Schaffer (Schaffer II), 240 F. Supp. 2d 396 (D. Md. 2002) 

163 The Court explained that the parents should have requested separate due process hearings for the subsequent

years. 

164 Weast v. Schaffer, 377 F.3d 449 (4th Cir. 2004)

165 Weast at page 456 166 Weast at page 449 

45 
During litigation, Montgomery County later offered a different, and appropriate IEP for the 

2001-2002 school year. In 2001, at age 17, Brian began attending Montgomery County Public 

Schools. He graduated from High School and now attends college.167 

IX. Conclusion 

The Individuals with Disabilities Education Act does not specify whether parents or school 

districts have the burden of proof in special education litigation. The U. S. Courts of Appeal are 

split with half aligning with the Lascari / Oberti rule that assigns the burden to school districts 

and the other half adopting the contrary Tatro / Alamo Heights rule. 

The Lascari / Oberti rule follows the logic and reasoning of the U. S. Supreme Court cases that 

resolve a burden of proof issue where the statute is silent. 

In 1914, Justice Holmes explained in Tinker that formal logic and assigning to the complainant 

the burden of proof does not control. The burden of proof is determined by the policy of the 

statute and relative position of the parties. In Campbell, the contents of a report were sought. 

The Court explained that the “right result” was to put the burden on the party that had 

possession of the information so “justice shall be done.” See also International Brotherhood 

and Concrete Pipe. 

In Keyes, the Court explained that the application of the burden of proof “is merely a question of 

policy and fairness based on experience in different situations.” The policy and purpose of 

IDEA is to prepare children for economic self-sufficiency, independent living, employment, and 

to protect the rights of the child. Query: Was that policy and purpose of IDEA applied in 

Dunstan? Was the outcome fair? 

Matthews provided three factors to use when assessing the assignment of the burden. First, what 

is the nature of the interest that is at stake? Second, if the person is erroneously deprived of that 

interest, how harsh is the result? Third, what is the economic burden if the person is erroneously 

provided with the benefit? 

The interest at stake is an education. In Brown, the Supreme Court held that “Today, education 

is perhaps the most important function of state and local governments . . .” Bill Dunstan was 

denied an appropriate education. As a result, the risk to him and society is great. 

Depriving a child of an appropriate education causes illiteracy, unemployment, dependency, and 

crime. The risk of an erroneous deprivation of such an interest is apparent when one compares 

the outcomes of Shannon Carter and Bill Dunstan. 

Ten U. S. Courts of Appeal have addressed this issue. They agree that, if a parent disputes an 

IEP, it is the parent’s burden to “place in issue the appropriateness of the IEP.” After that, the 

question is whether the parent has the burden of proving that the IEP is not appropriate, or 

whether the school district has the burden of proving that the IEP is appropriate. 

167 Sources: Interview with Brian’s counsel and article in The Washington Post, March 14, 2005 

46 
The split among the Circuits is based on several competing principles. Should the party attacking 

the terms of an IEP bear the burden of showing why the IEP is not appropriate? Should 

deference be given to the school district’s proposed plan? Or, should the party that prepared the 

IEP and has greater expertise and resources have the burden of proving that the IEP is 

appropriate? 

The logic and reasoning of the Lascari / Oberti Circuits is consistent with the U. S. Supreme 

Court rulings given the purpose of the Individuals with Disabilities Education Act which is to 

provide the children with an appropriate education that prepares them for “further education, 

employment and independent living” and to protect the rights of the children. This is also 

consistent with the secondary purpose of the statute to protect the rights of parents and their 

children. 

Bill Dunstan’s rights were not protected. Neither he nor his guardian had their “day in court’ so 

that Bill could begin to receive services that would lead to “further education, employment and 

independent living.” 

Before the EAHCA was enacted in 1975, the educational needs of millions of children with 

disabilities were not being met because- 

(A) the children did not receive appropriate educational services; 

(B) the children were excluded entirely from the public school system and from being 

educated with their peers;168 

Thirty years later, the same problems persist. Bill Dunstan did not receive appropriate services. 

From February, 2001 until the beginning of the following school year, he was out of school “for 

excessive absences.” When he returned in the Fall, he repeated the eleventh grade, unable to read 

or complete a job application. Because the sister guardian had the burden of proof, she was 

unable to secure help for her brother. Absent a change in Maryland, the Fourth Circuit, and 

Circuits following the Tatro / Alamo Heights rule, this pattern will repeat itself around the 

country. 

When Congress reauthorized IDEA in 2004, they wrote: 

[T]he implementation of this title has been impeded by low expectations, and an 

insufficient focus on applying replicable research on proven methods of teaching and 

learning for children with disabilities.169 

It is undisputed that millions of children with disabilities were denied an education and excluded 

from school. Today, in 2005, there are significant problems with children not being taught basic 

reading, writing, arithmetic, and spelling skills so they can be economically self-sufficient170 and 

168 20 U.S.C. §1400(c)(2) 

169 20 U.S.C. §1400(c)(4) 170 20 U.S.C. §1400(c)(1) 

47 
employable. The remedial nature of special education law, the procedural safeguards from Mills, 

decades of failure by schools to educate children with disabilities require that the school district 

bear the burden of proving that their proposed education program, denial of special education 

eligibility, or other action is proper, under the Act. 

School districts should have the burden of proof in issues about IEPs, placement, eligibility, and 

other matters related to an appropriate education. 

48