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Supreme Court puts burden on parents in special ed case

Advocates protest that system is not equitable

Wednesday, Nov. 16, 2005

Monday’s U.S. Supreme Court decisionwill make it harder for special-needs children to get the education they are legally entitled to, advocates say.

In a closely watched case that pitted a Potomac family against the county school system, the court ruled that parents who challenge a special-needs child’s education plan must prove that plan is inadequate.

School officials hailed the decision. It means the school system will be able to spend more money ‘‘in the classroom and not the courtroom,” Superintendent Jerry D. Weast said.

Special-education advocates counter that the decision places an unfair burden on parents, who do not always have the time, money or resources to make their case.

Under the federal Individuals with Disabilities Education Act, parents of a disabled child and school systems have the right to request an administrative hearing when there is a disagreement over which special education services the child should be given.

In deciding Schaffer v. Weast, the court ruled that the parents of Brian Schaffer, who has a learning disability, had the burden of proving that the school system did not provide their son with a free, appropriate public education as required by law.

Justice Sandra Day O’Connor, writing for the 6-2 majority, said that under the federal law, parents have ‘‘access to an expert who can evaluate all the materials that the school must make available, and who can give an independent opinion. They are not left to challenge the government without a realistic opportunity to access the necessary evidence or without an expert with the firepower to match the opposition.”

Special-ed costs Montgomery County Public Schools spend $311 million a year to serve more than 17,000 special- education students, including more than $32 million a year to place students in private schools that provide services the school system cannot. The school system’s median spending is $23,596 per year for all levels of special needs students, school officials said; some programs cost more, some less. That compares to the average $11,855 per student the system spends annually on its non-special-education students.

In her dissent, Justice Ruth Bader Ginsburg wrote that the federal law ‘‘casts an affirmative, beneficiary-specific obligation on providers of public education. ... The proponent of the [education program], it seems to me, is properly called upon to demonstrate its adequacy.”

Justice Stephen G. Breyer joined Ginsburg’s dissent. Chief Justice John G. Roberts Jr. did not participate in the case because his former law firm had represented the school system.

National ramifications

Schaffer v. Weast has been closely monitored by school systems and school boards around the country.

‘‘This ruling ... is important because school districts across the nation deal with thousands of similar situations,” Anne L. Bryant, executive director of the National School Board Association, said in a statement. ‘‘This decision will help limit the cost of special education hearings, allowing schools to spend the money and resources on educating children, not legal proceedings.”

The Alexandria, Va., association filed a friend of the court brief, backing the Montgomery school system, in the case.

But special education advocates decried the court’s decision.

‘‘It will just reinforce what has been happening in Montgomery County for a long time,” said Jocelyn Schaffer, Brian’s mother. ‘‘Parents have a difficult time challenging an [individual education plan] that a parent feels is not right for their child. ...

‘‘It just makes me so sad that children don’t get what they need simply because their parents can’t afford to challenge the county or the parents can’t afford to get the services on their own,” she said. ‘‘In many cases the county does provide what they need, but in some cases they don’t.”

Monday’s decision also will lead school systems ‘‘to act more as defense attorneys than educators” while forcing parents to reconsider appealing for services, said Michael J. Eig, an attorney for the Schaffers.

‘‘Some won’t appeal that would have appealed before,” he said. ‘‘Others will find it very rough. You have to hire the lawyer and the experts if the burden is on you. And the school system is waiting with its own salaried experts and attorneys.”

Brian Schaffer has an auditory processing disorder that makes it difficult for him to hear and understand in larger classrooms. The specialists and several teachers recognized he needed classes with fewer students while Montgomery County wanted to mainstream him, Jocelyn Schaffer said.

The Schaffers could afford to send Brian to private schools when they felt the school system’s plan was inappropriate, but many parents are not in that position, Schaffer said.

Ruling’s fallout

The system is not equitable, agreed Robert Astrove, a special education parent and advocate from Rockville who ran unsuccessfully for the county school board last year.

‘‘What happens when the school system doesn’t share the information, which is frequent?” Astrove asked.

Astrove said he worries that the decision could hurt parents ‘‘if it emboldens the school system to take a more aggressive budget-cutting stance in cutting special education services.”

That would be a mistake for a school system where about two-thirds of all special education students are failing tests that will be required by the state for graduation beginning in 2009, Astrove said.

African-American and Hispanic students in special education especially are struggling on those tests, he said.

‘‘How can we be in that position while simultaneously saying we are meeting all kids’ needs in special ed?” Astrove asked.

Ricki Sabia, whose special-needs son attends Briggs Chaney Middle School in Silver Spring, said she wonders how the court can expect special parents to know how to argue for their child’s needs.

‘‘I think the court is presuming that [parents] understand their rights and that they have an attorney or advocate to help them wade through all this information they’re being given,” she said. ‘‘... Parents are the kinds of people, more and more, who do not have the educational background, the financial background, are not English-speaking as their first language.”

Sabia, a lawyer who is associate director of the National Down Syndrome Society’s National Policy Center, said she was hired once by the school system to write a parents guide to the special-education appeals process.

‘‘To try to make the procedural rules and due process rules understandable at a sixth-grade [reading] level is nearly impossible,” she said.

Weast said the court’s decision ‘‘gives people confidence that our teachers are trying to work with them, it is a team decision.”

He dismissed the argument that special-education parents face a ‘‘David and Goliath” fight that pits a large school system against an individual family.

‘‘What the court affirmed was that was not the case,” Weast said. ‘‘There are many procedural safeguards in this law. And you can’t presume that teachers are being invalid in what they write up.”

Asked if the ruling would reduce the number of court challenges the school system might face, Weast was curt. ‘‘No,” he said.

The school system spent between $250,000 and $300,000 on attorneys hired to argue the Schaffer case after it went to federal court, Weast said. That amount does not include the attorneys on the school system’s payroll who worked on the case, which dates from 1998.

In 1998, the Schaffers asked the school system to evaluate Brian so that he might receive special-education services at Herbert Hoover Middle School in Rockville during in the 1998-99 school year.

The Schaffers rejected two plans the school system proposed and placed Brian at the private McLean School in Potomac.

In May 1998, the Schaffers asked for an administrative hearing, arguing that the proposed Individualized Education Program developed by the school system did not provide a free appropriate public education as required by federal law and requesting reimbursement for tuition at McLean.

In 2001, MCPS agreed to give Brian the accommodations the Schaffers requested, and he enrolled in the Learning Center, a special education program at Walter Johnson High School in Bethesda. He graduated in 2003 and is attending college in North Carolina, where he is majoring in professional golf management.

‘‘If he hadn’t had an appropriate education, I don’t know where he’d be today,” Jocelyn Schaffer said. ‘‘I doubt if he’d be doing as well now as he is.”

Whether the family should be reimbursed for the $17,000 in tuition costs at McLean will be left to U.S. District Court in Greenbelt to decide, Eig said.

Staff Writer C. Benjamin Ford contributed to this report.