Weast v. Schaffer ex rel. Schaffer

• Decision Date: 29 July 2004
• Docket Number: No. 03-1030.,03-1030.
• Citation: 377 F.3d 449
• Parties: Jerry WEAST, Superintendent of Montgomery County Public Schools; Board of Education of Montgomery County, Plaintiffs-Appellants, v. Brian SCHAFFER, a minor, by his parents and next friends, Jocelyn and Martin Schaffer; Jocelyn Schaffer; Martin Schaffer, Defendants-Appellees. National School Boards Association; Maryland Association of Boards of Education; North Carolina School Boards Association; South Carolina School Boards Association; Virginia School Boards Association, Amici Curiae Supporting Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 449

377 F.3d 449

Jerry WEAST, Superintendent of Montgomery County Public Schools; Board of Education of Montgomery County, Plaintiffs-Appellants, v. Brian SCHAFFER, a minor, by his parents and next friends, Jocelyn and Martin Schaffer; Jocelyn Schaffer; Martin Schaffer, Defendants-Appellees.

National School Boards Association; Maryland Association of Boards of Education; North Carolina School Boards Association; South Carolina School Boards Association; Virginia School Boards Association, Amici Curiae Supporting Appellant.

No. 03-1030.

United States Court of Appeals, Fourth Circuit.

Argued: January 23, 2004.

Decided: July 29, 2004.

Appeal from the United States District Court for the District of Maryland, Peter J. Messitte, J.

ARGUED: Zvi Greismann, Montgomery County Public Schools, Rockville, Maryland, for Appellants.

Michael Jeffrey Eig, Chevy Chase, Maryland, for Appellees.

ON BRIEF: Haylie M. Iseman, Michael J. Eig & Associates, P.C., Chevy Chase, Maryland, for Appellees.

Naomi Gittins, Staff Attorney, National School Boards Association, Alexandria, Virginia; Scott Price, General Counsel, South Carolina School Boards Association, Columbia, South Carolina; Allison B. Schafer, Director of Policy/Legal

Services, North Carolina School Boards Association, Raleigh, North Carolina; Stephen C. Bounds, Director of Legal & Policy Services, Maryland Association of Boards of Education, Annapolis, Maryland; Elizabeth Ewing, Director of Legal & Policy Services, Virginia School Boards Association, Charlottesville, Virginia, for Amici Curiae.

Before WILKINSON, LUTTIG, and MICHAEL, Circuit Judges.

Reversed and remanded by published opinion. Judge MICHAEL wrote the opinion, in which Judge WILKINSON joined. Judge LUTTIG wrote a separate dissenting opinion.

OPINION

MICHAEL, Circuit Judge:

The Individuals with Disabilities Education Act (IDEA) gives every disabled child the right to a "free appropriate public education" tailored to meet his or her unique needs. 20 U.S.C. § 1400(d)(1)(A). To enforce this right, the IDEA requires every public school system receiving federal funds to develop and implement an Individualized Education Program (IEP) for each disabled child in its jurisdiction. Id. § 1412(a)(3)-(4). When the parents believe their disabled child's IEP is inadequate, they may initiate an administrative proceeding (called a due process hearing) to challenge the IEP. Id. § 1415(f). The parents of Brian Schaffer initiated a due process hearing to challenge the IEP developed for him by Maryland's Montgomery County Public School System (MCPS). The issue in this appeal is whether the district court was correct in assigning the burden of proof to the school system in that proceeding. The IDEA is silent on burden of proof. Because we have no valid reason to depart from the general rule that the party initiating a proceeding has the burden of proof, we reverse and remand.

I.

Brian, who has Attention Deficit Hyperactivity Disorder and other learning disabilities, attended Green Acres private school in Montgomery County from pre-kindergarten through seventh grade. Green Acres does not have a special education program, and Brian struggled academically throughout his years in attendance there. Brian was placed on probation when he began the seventh grade in the fall of 1997; in October of that year school personnel told Brian's mother that he needed to attend a school that could more adequately accommodate his disabilities.

Shortly thereafter (in November 1997), Brian's mother contacted the Herbert Hoover Middle School, an MCPS school, and requested that Brian be evaluated to determine his eligibility for special education services for the 1998-1999 school year. In the meantime, Brian's parents applied to have him admitted to another private school, the McLean School of Maryland, for the 1998-1999 academic year. On February 26, 1998, the MCPS committee that determines special education eligibility, the Admission, Review, and Dismissal (ARD) Committee, held its first meeting to discuss Brian's educational needs with his parents, their lawyer, and Herbert Hoover school officials. The following month Brian was admitted to the McLean School for the next academic year, and his parents paid the enrollment fee to reserve his place in the eighth grade class. The ARD Committee held its second meeting in early April 1998, found Brian eligible for special education, and offered an IEP for the next (1998-1999) school year.

The proposed IEP specified that Brian would receive 15.3 hours of special education and 45 minutes of speech therapy each week at his "home" school, Herbert Hoover Middle School. After the parents expressed concern about class size at Herbert Hoover, the MCPS offered to provide the same IEP services at the Robert Frost Middle School, a school ten minutes from Brian's home, where he could receive more of his instruction in smaller classes. Shortly thereafter, in May 1998, the parents informed MCPS that the proposed IEP was inadequate and that Brian would attend private school at McLean. At the same time, the parents requested a due process hearing pursuant to the IDEA, claiming that the proposed IEP denied Brian a free appropriate education; they sought reimbursement of the tuition and other expenses for Brian's private school attendance. (The IDEA requires the school system to arrange for an impartial due process hearing, and the hearing cannot be conducted by a system employee or an employee of the state educational agency. See 20 U.S.C. § 1414(f)(3). In Maryland the due process hearing is conducted by an administrative law judge (ALJ) in the state's Office of Administrative Hearings. Md.Code Ann., Educ. § 8-413(c) (Michie 1997); A.B. v. Lawson, 354 F.3d 315, 320 (4th Cir.2004).)

At the original due process hearing in Brian's case, the ALJ assigned the burden of proof to the parents. The parents challenged the substance of the IEP, not the process by which it was developed, and the ALJ explained that deference is owed to education professionals in the substantive design of an IEP. The parents were therefore required to prove that the IEP was inadequate, specifically, that it was not "reasonably calculated to enable the child to receive educational benefits." Hendrick Hudson Bd. of Educ. v. Rowley, 458 U.S. 176, 207, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982). Both sides submitted extensive expert testimony, and the ALJ considered the case to be close. He commented that the "assignment of the burden of proof [was] critical" to the outcome. J.A. 46. Ultimately, the ALJ concluded that the parents had not met their burden. The ALJ's order upheld the IEP proposed by the MCPS and denied the parents' request for reimbursement for Brian's private school expenses.

Brian's parents sued the MCPS (technically, the Board of Education of Montgomery County and its superintendent) in district court, claiming that the ALJ had erred in assigning the burden of proof to them. The district court, agreeing with the parents, reallocated the burden of proof to the MCPS and remanded the case to the ALJ for further proceedings. Brian S. v. Vance (Schaffer I), 86 F.Supp.2d 538 (D.Md.2000). The MCPS appealed the district court's Schaffer I order to our court, but before we heard argument the ALJ reconsidered the case pursuant to the district court's remand order. After reassigning the burden of proof to the MCPS, the ALJ found that the MCPS had failed to prove the adequacy of the IEP. The ALJ ordered the MCPS to make partial reimbursement to the parents for Brian's tuition and expenses at private school for the 1998-1999 year. The MCPS then filed an action (Schaffer II) in district court to challenge the ALJ's reassignment of the burden of proof. In the meantime, the MCPS's appeal from the district court's order in Schaffer I was still pending in this court. We disposed of that appeal by vacating the district court's order and "remand[ing] to that court with directions that any issue with respect to the proof scheme in this case be consolidated with the consideration of the merits." Schaffer v. Vance, 2 Fed.Appx. 232, 233 (4th Cir.2001) (unpublished). Accordingly, in Schaffer II the district court, after reaffirming that the MCPS had the burden of proof, concluded that the ALJ had decided correctly on reconsideration that the proposed IEP was inadequate. The district court then set aside the ALJ's decision on tuition and expenses, awarding full reimbursement to the parents. Weast v. Schaffer (Schaffer II), 240 F.Supp.2d 396 (D.Md.2002). The MCPS now appeals the district court's decision in Schaffer II.

II.

A.

The IDEA is silent about which side bears the burden of proof in a state administrative proceeding brought by parents to challenge the adequacy of an IEP. When a statute is silent, the burden of proof is normally allocated to the party initiating the proceeding and seeking relief. See, e.g., J. Strong, McCormick on Evidence § 337 (5th ed.1999); Dalton v. Capital Assoc. Indus. Inc., 257 F.3d 409, 416 (4th Cir.2001); Newport News Shipbuilding & Dry Dock Co. v. Loxley, 934 F.2d 511, 516 (4th Cir.1991). Although "the natural tendency is to place the burden[ ] on the party desiring change" or seeking relief, other factors such as policy considerations, convenience, and fairness may allow for a different allocation of the burden of proof. McCormick on Evidence § 337.

Today our circuit must decide how to allocate the burden of proof in one of these IDEA-prescribed, state administrative proceedings initiated by parents to challenge an IEP. Other circuits are split — and splintered in reasoning — on this question. 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. Cordrey v. Euckert, 917 F.2d 1460, 1466 (6th Cir.1...