Isles weigh in
on school case

A U.S. Supreme Court hearing
involves a Maryland couple
and their special-needs son

A couple's dispute with Maryland public schools over a special education program for their son has drawn attention in Honolulu and the rest of the country as the case heads to a U.S. Supreme Court hearing on Oct. 5.

At stake is whether the parents or the public schools have to prove at a school administrative hearing whether an education plan for their children is adequate.

In Hawaii, the school district now has the burden of proof in such hearings, a position supported by the 9th U.S. Circuit Court of Appeals, which covers Hawaii.

The Maryland case, called Schaffer v. Weast, has the state attorney general opposing organizations representing parents of special-needs children.

Attorney General Mark Bennett has filed a brief in the case, saying the matter should be left to the states because federal law is silent on the question.

Gary Smith, Hawaii Disability Rights Center president, said: "It is simply unconscionable that parents of children with disabilities should be required to also bear the burden of proof at due process hearings before they will be able to obtain the free and appropriate public education to which the law entitles their children."

The Schaffer v. Weast case involves a dispute between Jocelyn and Martin Schaffer, parents of Brian Schaffer, a minor, and Jerry Weast, superintendent of the Montgomery County public schools in Maryland.

The Schaffers were dissatisfied with the plan proposed for their son, saying the class was too large. They also rejected a second plan placing the child in a smaller class in another school. They enrolled their child in private school and sought reimbursement for the $21,000 tuition in an administrative hearing.

The administrative judge placed the burden of proof on the Schaffers, who appealed to the District Court. It said the board should bear the burden of proof and returned the case to the administrative judge.

The administrative judge then ruled in favor of the Schaffers and ordered partial reimbursement of the tuition. The board challenged that ruling, but the district court affirmed it and ordered the board to fully reimburse the Schaffers for the school tuition.

The 4th U.S. Circuit Court of Appeals reversed the decision, saying the burden of proof should have been placed on the Schaffers because federal law says nothing on the issue. It also pointed out that the court circuits are split, with three assigning the burden to parents and at least four assigning it to the school system.

Nine states and more than 20 organizations have filed briefs in the Supreme Court case supporting parents of children with disabilities.

Bennett said the court should follow the traditional rule, with the burden of proof generally falling on the party initiating an action or appeal.

Bennett met with some of the Hawaii groups representing parents on June 17. "I understand their passion on this issue," he said. But he said he believes the position of the Montgomery County school district, the 4th Circuit Court and the United States is correct.

Besides the issue of states' rights, a lot of money is at stake, he said. "If the Supreme Court changed the rules and said it is going to impose an extra burden on the state, absent a congressional mandate, fiscal implications on the state could be enormous."

Smith said the disability groups tried to point out to Bennett that Hawaii's situation is significantly different than in other states because there are no local school districts here, just a single board of education.

"For the attorney general to take the position that the family bears the burden of proof really looks very bad, because here's the state supporting itself in a very large system pitting itself against families with children with disabilities," Smith said.

"In my mind, it's not so much a legal question as a social and political question," he added.

Jennifer Schember-Lang, executive director of the Learning Disabilities Association of Hawaii, said if the Supreme Court assigns the burden of proof to parents, this "will be another challenge for families to ensure the child receives what the federal law entitles the child to receive."


536 hearings requests
filed in state since 2002

Parents and guardians for special-needs children have filed 536 requests for impartial hearings with the state Department of Commerce and Consumer Affairs since October 2002, and 100 completed the hearings process.

Requests aren't screened but some are withdrawn, settled or disposed of by motion before hearings are scheduled or completed, said Rod Maile, senior hearings officer in the DCCA Office of Administrative Hearings.

The state Department of Education transferred the due process hearings on Individualized Education Plan disputes to the DCCA in October 2002.

The number of requests and cases that went through the entire hearings process were as follows:

Oct. 15, 2002, to Dec. 31, 2002: 42 requests, eight cases completed; five decided in favor of the parents, three decided in favor of the DOE.

Jan. 1 to Dec. 31, 2003: 175 requests, 35 cases completed hearings; 20 decided in favor of the parents, 15 decided in favor of the DOE.

Jan. 1 to Dec. 31, 2004: 183 requests, 49 cases completed hearings; 27 decided in favor of the parents, 22 decided in favor of DOE.

Jan. 1 to June 30, 2005: 136 requests for hearings, eight cases completed the hearings process; four decided in favor of the parents and four in favor of the DOE.

Some decisions from the due process hearings have been posted by the Department of Education online at doe.k12.hi.us/reports/specialeducation/dueprocess.

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