Brian Schaffer was a master at hiding his learning disability from his teachers.
When he was a second-grader at Green Acres School in Rockville, Brian, now a college student, convinced his teacher that he was making his way through “The Lion, The Witch, and The Wardrobe” during independent reading time.
Jocelyn Schaffer, Brian’s mother, asked the teacher at a conference why she believed Brian was reading the book.
“I knew he couldn’t read that book,” Jocelyn Schaffer said. “He was just barely able to eke out words at that time.
“She said, ‘Well, he sits with the book and his eyes move across the page and he turns the pages and then when I ask him what’s going on in the story he tells me.’ …
“I said, ‘Well he’s tricking you. I have read him that book more than once. At camp one summer his counselor read the kids that book. And I took him to Glen Echo to see the play. So he knew the story, and he’s remembering the story, but I promise you he’s not reading the book.’”
BRIAN WAS a bright, affable child who was diagnosed with multiple learning disabilities that affected his ability to process sounds, especially in noisy environments, and to read and write.
As Brian grew older and those skills became more critical, it became more and more difficult to fake his way through school. While small classes and a nurturing environment at Green Acres had worked for Brian in early grades, by seventh grade he was not succeeding. At that point, teachers and administrators at Green Acres told his parents that Brian needed an education tailored to his special needs, specialized programs the small private school could not offer.
In 1998, Jocelyn Schaffer and her husband Martin Schaffer turned to the special education resources of the Montgomery County Public School system. The Schaffers met with school officials to develop special education plan for Brian known as an Individualized Education Plan.
Parents and school officials didn’t agree on Brian’s needs.
Brian had a “unique central auditory processing deficit,” according to one outside expert who said “Brian’s auditory processing of words was so impaired … that his ability to execute any auditory tasks should be considered possibly compromised by this one feature.”
Brian’s parents — and his past educators at Green Acres — advocated for Brian to be placed in smaller, self-contained special education classes that would minimize distractions that interfered with his ability to learn.
School officials disagreed. Their experts diagnosed a mild speech-language disability and proposed that he be taught most subjects in “inclusion model” classrooms with 24 to 28 students at Hoover. Under the proposed IEP, Brian would have been supported by a special education teacher who worked with a small group of five-to-six students within a regular classroom.
Brian’s parents turned down proposed placements at Herbert Hoover Middle School and Robert Frost Middle School, saying that the classes Brian would be in were far too large for him, based on the recommendations of private psychologist and audiologists they had hired.
“It would have been like throwing him into a lion’s den to put him in those classes,” said Jocelyn Schaffer, in an interview last week.
“We offered classes at two excellent schools that were close to their home with what we thought were appropriate class sizes,” said Brian Edwards, an MCPS spokesman.
This week, more than seven years after the sides’ first meeting, that disagreement arrives at the Untied States Supreme Court.
The case has far-reaching implications for special education in America, but Schaffer said Brian never wanted to be a poster child.
“[Brian] spent many years trying to pull the wool over his teachers’ eyes. He doesn’t like to be seen as a disabled kid,” she said. “Here he is going to the Supreme Court.”
There are 17,000 students in Montgomery County receiving special education services, among some 7 million nationally. Congress allocated $7.5 billion to states for special education in 2002, the last year for which data is available, but as with the No Child Left Behind Act, the Individuals with Disabilities Education Act has only been partially funded.
Parents and school systems are both strapped for cash, and litigation is a costly alternative that both sides wish to avoid if possible. The outcome of the Schaffer’s case could establish the landscape for future disputes.
In their brief to the U.S. Supreme Court, attorneys for Montgomery County Public Schools say a ruling for the Schaffers would “only invite additional litigation.”
“IDEA hearings are expensive, take special education teachers out of the classroom, and foster an adversarial relationship between parents and schools — costs that ultimately divert scarce resources from the education of all children,” according to the school system’s brief.
Jocelyn Schaffer and attorneys who prepared her son’s case for the Supreme Court disagree.
“If the school district has fulfilled this duty, it will have its proof readily available, and it ought not to be reluctant about going before a hearing officer to justify its position,” according to their brief.
“I think that if we win this case Montgomery County will be more careful to provide appropriate IEPs for their students. I think that there will be fewer cases going to … court,” Schaffer said.
ORAL ARGUMENTS for Schaffer v. Weast are Oct. 5. The high court’s decision will not only determine whether the Schaffers should receive reimbursement for Brian’s private school education — a point of contention that is now only a tiny piece of the dispute — but will also resolve a more than 30-year dispute about federal special education law that has divided federal courts of appeals and state supreme courts.
Here is what the law says: Every public school receiving federal funding under the Individuals with Disabilities Education Act (IDEA) must provide a “free, appropriate public education” for every child with disabilities. Parents and school officials are equal parties in developing an individualized education plan that fulfills that obligation.
In an overwhelming majority of cases, parents and officials agree on the child’s needs and how they are best served in the school system.
“[It] works 99 percent of the time. … The fact is the IDEA is about as far-sighted and wonderful a piece of legislation as this country has produced in the last God-knows-how-many years,” said Michael Eig, an attorney for the Schaffers. “The problem is in those cases where the consensus fails, what do you do?”
Congress set forth procedures in the law to resolve disputes. Parents are entitled to call for a hearing, known as a due process hearing, before an impartial judge—in Maryland, a state-employed Administrative Law Judge, who is not an employee of the school system.
The question that the new Chief Justice John Roberts, the outgoing Justice Sandra Day O’Connor and the other Supreme Court justices will decide this week seems simple: When there is a dispute regarding an individualized education plan, who bears the burden of proof? Is it up to the parents to prove the inadequacy of the plan or is it up to the school system to show that it meets the child’s needs?
The Individuals with Disabilities Education Act grew out of the Education of the Handicapped Act of 1970 and Education for All Handicapped Children Act of 1975. When the law was re-authorized by Congress in 1990 it became the Individuals with Disabilities Education Act. It was re-authorized again in 1997 and 2004.
Congress did not specify in any of the laws which side bears the burden of proof in due process hearings, which would determine among other things the outcome in a situation where the administrative law judge rules both sides have equally proved their points.
In numerous federal district and circuit court decisions, school systems have argued that where no burden of proof is specified a “traditional” burden of proof should apply, that the burden of proof rests with the party making the complaint and seeking relief. Congress’ silence certainly does not imply that it wished to invert that standard, they say.
“The main point here is that we believe the party that brings the complaint should have to prove its case. That is the traditional rule of law. … You see that in civil rights law, you see that in many simple civil law cases,” said Brian Edwards, a spokesman for Montgomery County Public Schools. “If you flip the burden of proof then you automatically assume that our judgment is invalid and we have to automatically defend the judgment and expertise of our teachers who have often put in hundreds of hours [developing an IEP].”
The Schaffers and other parents challenging IEPs in court have argued that things are not that simple. Legal theory and precedent includes numerous factors in assigning burden of proof — not just who is seeking relief but issues of fairness, policy and access to relevant information. In IEP hearings, they argue, school systems have massive advantages: a payroll filled with therapists, psychologists and experts who have examined the child, lawyers, and access to data concerning thousands of special education students. Those advantages make successfully challenging an IEP nearly impossible for most parents, few of whom can hire their own experts and attorneys. And the Individuals with Disabilities Education Act differs from, say, civil rights law because it imposes an affirmative statutory obligation on the school system to provide an appropriate education, rather than just forbidding discrimination.
The Schaffer case arrives at the Supreme Court following a convoluted legal history involving multiple decisions by the administrative law judge who oversaw the IEP hearings and multiple decisions at the United States District Court level. Most recently the United States Court of Appeals for the Fourth Circuit in Richmond ruled that the burden of proof lies on the parents, in a split 2-1 vote on Jan. 29, 2004. The Supreme Court agreed in February 2005 to hear an appeal of the Fourth Circuit decision—the current Schaffer v. Weast.
The Schaffers are an exceptional case, and they hope that their case could protect other families who could never afford the time and cost of battling a case through the school system, let alone all the way to the Supreme Court.
Parents of children with special needs are statistically poorer than parents of children without disabilities. Few such parents have the financial wherewithal to hire a lawyer to represent them in an IEP hearing, or to bring in their own experts to demonstrate their case with regard to the child’s needs.
“The families that we serve anyway are people who are really just struggling to stay afloat and want their children to get appropriate services,” said Wendy Byrnes, a parent advocate for the Disability Rights Education and Defense Fund. “Most parents don’t spend their free time looking at these kinds of cases. They’re busy earning a living. They’re busy trying to get dinner on the table.”
A coalition of nine states, led by Virginia, and more than 20 education and disability rights organizations have filed friend-of-the-court briefs in support of the Schaffers, many of them arguing that placing the burden of proof on the parents gives local school systems little incentive to provide an appropriate education when few parents will have the time or resources to prove their cases.
“[There’s] an enormous voiceless population,” Eig said.
Groups supporting Montgomery County Public Schools in Schaffer v. Weast, including six school board associations, several state attorneys general and the United States (i.e., the current federal administration) see the situation differently. Shifting the burden of proof to the schools creates an atmosphere where the work of special educators and school administrators is presumed to be invalid, they argue. Such a decision treats public agencies as being in bad faith and encourages parents to be confrontational.
“Our special education staff should not have to work under legal conditions that automatically presume that their judgments are invalid,” Jerry Weast, the Montgomery County Schools superintendent and respondent in the case, said in a statement. If the burden of proof is shifted, special educators will “become targets for attorneys and spend more time in the courtroom than the classroom,” he said.
“That’s academic McCarthyism,” Eig said. “They try to scare people and say that you put the burden on the school system and parents are just going to be just knocking down our doors with frivolous appeals.”
Data shows that school systems spend about $22 per student on mediation and litigation (Montgomery County spends about $11,000 per student overall).
In states, such as Virginia, where state law places the burden of proof on the school systems there are no more IEP complaints than elsewhere, according to Eig.
Brian Schaffer is now a junior at a small East-coast college. He still avoids reading assignments and struggles with paper writing, Jocelyn Schaffer said, but he has been successful, in part because of the individual attention the school provides.
He wants to be a golf professional. His learning disability does not affect him on the golf course. It doesn’t interfere with the controlled social interactions of a pair or a foursome. It doesn’t detract from his ability to calculate yardage to the pin. It doesn’t affect his swing. He likes the tranquility.
“It’s a quiet game,” Jocelyn Schaffer said.
The golf course is also the only place where there is no dispute about Brian’s handicap: zero.
Brian has not been closely involved with the legal battle. He is just a normal, outgoing college student who wishes to maintain a measure of privacy, in spite of the case, Jocelyn Schaffer said.