Brian S. v. Vance

• Citation: 86 F.Supp.2d 538
• Decision Date: 15 March 2000
• Docket Number: No. Civ. PJM 99-15.,Civ. PJM 99-15.
• Parties: BRIAN S., et al., Plaintiffs, v. Paul L. VANCE, et al., Defendants.
• Court: United States District Courts. 4th Circuit. United States District Court (Maryland)

86 F.Supp.2d 538

BRIAN S., et al., Plaintiffs, v. Paul L. VANCE, et al., Defendants.

No. Civ. PJM 99-15.

United States District Court, D. Maryland.

March 15, 2000.

Bogin and Eig, Washington, DC, for plaintiffs.

Edmund W. Law, New Market, MD, Zvi Greismann, Rockville, MD, for defendants.

OPINION

MESSITTE, District Judge.

I.

This case raises the important issue, not yet resolved in the Fourth Circuit, of which party in an action brought under the Individuals with Disabilities Education Act (IDEA) bears the burden of proof at the administrative due process hearing.¹ The circuits that have addressed the issue are divided, some placing the burden upon the school district, others upon the party seeking to challenge the IEP, which ordinarily means the parents. In only a few cases have courts attempted to articulate a rationale for allocating the burden of proof at this level.

In the Court's view, the better part of reason leads to the conclusion that at least where an initial IEP is brought to a due process hearing, the burden of proof lies with the school district, which in this case occasions a remand to the ALJ. In contrast, where a party—either the parents or the school district—seeks to change an existing IEP, the burden at the due process hearing fairly lies with the party seeking the change. Further, as the law of this Circuit incontrovertibly establishes, once an administrative decision has been made regarding the IEP, the burden of overturning it lies with the party challenging the administrative decision. See Tice v. Botetourt County Sch. Bd., 908 F.2d 1200, 1206 n. 5 (4th Cir.1990).

II.

Jocelyn and Martin S. seek reimbursement of the costs incurred by them for enrolling their son Brian in a private school for disabled children. They contend that the Montgomery County Public Schools system (MCPS)² failed to provide Brian with a free appropriate education as required under the IDEA, 20 U.S.C. § 1400 et seq.

There is no question that Brian is a child who is learning disabled, language-impaired and other health impaired. He has been diagnosed as having attention deficit hyperactivity disorder and needs special education and related services to benefit from school attendance. From kindergarten through seventh grade, Brian attended Green Acres School, a private school in Montgomery County where, despite small class size and significant accommodations as well as parentally provided extra services, he did not succeed.

In November 1997, Brian's mother contacted the Montgomery County school authorities and requested special education services for the 1998-99 school year, submitting outside evaluations of Brian. After reviewing the outside evaluations and conducting additional tests, MCPS found Brian eligible for special education and proposed a part-time placement for him at Hoover Middle School, with an alternative placement at the Robert Frost Middle School. This was Brian's initial IEP.

Because his parents believed the IEP drafted for Brian was not reasonably calculated to provide him with appropriate educational benefit, they notified administrative authorities that they rejected the proposed placement. In May of 1998, they requested an administrative due process hearing, citing the school system's purported failure to provide Brian with a free appropriate public education. More or less simultaneously, anticipating the beginning of a new school year in the fall, Brian's parents enrolled him for the 1998-99 school year at the McLean School, a private school for learning and language disabled students located in Montgomery County.

Over three days in June and July 1998, a due process hearing was convened before an ALJ who concluded shortly after that the school authorities had offered Brian a free appropriate education. Accordingly, Brian's parents' claims for reimbursement of the tuition and costs of Brian's placement at the McLean School for the 1998-99 school year were denied.

The ALJ was particularly concerned about which party bore the burden of proof and, at the end of the first day of the hearing, asked counsel to submit brief memoranda of law on the issue. In his subsequent written decision, he stressed how important the allocation of the burden was to the outcome of the case:

There are experts on both sides in this case who have testified with opposing points of view. The credentials of all of those experts, in their respective fields, were impressive. Because each side's experts have diverging views on the question of what the Child's needs were and which placement would afford the requisite educational benefit for the Child, an assignment of the burden of proof in this case becomes critical.

Decision at 29 (emphasis supplied).

Acknowledging that "[t]he case law provides support for assigning that burden to either party," he opted for the rationale expressed by the U.S. Court of Appeals for the Fifth Circuit in Alamo Heights Independent School District v. State Board of Education, 790 F.2d 1153, 1158 (5th Cir. 1986) (quoting Tatro v. Texas, 703 F.2d 823 (5th Cir.1983), aff'd, 468 U.S. 883, 104 S.Ct. 3371, 82 L.Ed.2d 664 (1984)):

[The IDEA] "place[s] primary responsibility for formulating handicapped children's education in the hands of state and local school agencies in cooperation with each child's parent." In deference to this statutory scheme and the reliance it places on the expertise of local education authorities, ... [The IDEA] creates a "presumption in favor of the educational placement established by a [student's IEP]," and "the party attacking its terms should bear the burden of showing why the educational setting established by the [IEP] is not appropriate."

See Decision at 30.

Given the reluctance of the Fourth Circuit, as stated in Tice, 908 F.2d at 1207, "to second-guess the judgment of education professionals," the ALJ held that:

In the matter sub judice, the Parents bear the burden of persuasion in establishing that the IEP prepared for the Child by MCPS and/or the placement(s) offered for the Child for the 1998-1999 school year fail to afford the Child an opportunity for a FAPE.

Decision at 31.³

The ALJ then proceeded to discuss various aspects of the record in favor of and against the proposed IEP. He cited the testimony of Drs. Ruth D. Spodak and Carol A. Kamara, Brian's experts on learning disabilities and speech/language pathology respectively. Both stated that the IEP failed to offer an appropriate educational benefit, since in their view Brian requires small, self-contained special education classes of a kind not included in the IEP. Dr. Spodak testified that such classes were essential to Brian's education because they would tend to minimize the distractions interfering with Brian's ability to learn. Dr. Kamara testified that Brian suffers from a "central auditory processing" problem that increases his susceptibility to distractions, necessitating a small, self-contained learning environment.

On the other hand, the ALJ noted that Dr. Spodak's testimony differed in some respects from an earlier report she and members of her staff had written about Brian's learning disabilities. This, along with the fact that she herself had spent only ten minutes with Brian, caused the ALJ to "question[] the probative value of Dr. Spodak's opinion." Decision at 36. Similarly, the ALJ noted that Dr. Kamara's opinion was compromised to some extent by her acknowledgment of the diagnostic limitations of the test she relied upon in diagnosing Brian's "central auditory processing" problem and by her refusal to offer an opinion as to whether Brian's speech-language disability is mild, moderate, or severe. Finally, the ALJ noted that two experts from MCPS, Dr. Barbara J. Butera and Pamela Zahra, a speech pathologist, testified that the IEP was appropriate to Brian's needs and that, in their view, he suffers not from a "central auditory processing" problem but from a mild speech-language disability.

Ultimately, the ALJ concluded that the parents had not carried their burden of proof:

The Parents have failed to persuade the ALJ that the April 6, 1998 IEP was not reasonably calculated to provide educational benefit, or that the placement(s) offered by MCPS are not appropriate to provide for the Child's educational needs in accordance with the IDEA.

Decision at 42.

Before the Court, Brian's parents argue, among other things, that the ALJ erred in assigning the burden of proof to them. The parties have filed Cross-Motions for Summary Judgment on this and other points.⁴

III.

Deferring case citations for a moment, it may be useful to begin by considering the different settings in which a challenge to an IEP may arise:

1) there is the initial IEP, proposed by the school authorities the first time it is sought for a child, with which the parents do not agree and as to which they seek an administrative due process hearing;

2) there is the existing IEP, at one time agreed to by everyone, which either the parents or the school district seek to change against the wishes of the other, whereupon the matter goes to an administrative due process hearing; and

3) there is the IEP that has been passed upon by an independent ALJ, which a party seeks to challenge in a court proceeding.⁵

The cases do not ordinarily make these distinctions, but in fact there appears to be reason to do so.

In the last scenario, the law and policy considerations are the most sharply defined. As indicated, in the Fourth Circuit the burden of proof on appeal from an administrative decision is upon the party challenging the decision. See Barnett v. Fairfax County Sch. Bd., 927 F.2d 146, 152 (4th Cir.1991); Tice, 908 F.2d at 1206 n. 5; Spielberg v. Henrico County Public Schools, 853 F.2d 256, 258 n. 2 (4th Cir. 1988). This, according to the Fourth Circuit, arises out of deference to the underlying state administrative process. Tice, 908 F.2d at 1206 n. 5. This undoubtedly flows from the general belief that, once an...