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Article of Interest - Special Education

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Bush Administration Supports Montgomery Schools in Lawsuit
Supreme Court to Review Case Involving Special-Ed Options
Nick Anderson, Washington Post, June 28, 2005
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The Bush administration has sided with school systems in a special education dispute between a disabled student's parents and the Montgomery County public schools that is before the U.S. Supreme Court.

The lawsuit centers on who has the burden of proof when a student's special education plan is under challenge: the person who objects to the plan, or the school officials who devised it. At stake in the case are questions about individual student rights and public school funding priorities.

In a brief filed Friday, U.S. Solicitor General Paul D. Clement urged the high court to uphold an appellate ruling when it deliberates the case in its next term.

"Public officials, including public school officials, are presumed to act in good faith compliance with their legal obligations," Clement said in the brief. "Thus, where, as here, a party alleges that those officials violated their legal duties, the complaining party generally bears the burden of proof."

The Bush administration's action is a shift from its predecessor. Clement's brief mentions that the Clinton administration held a different view. In August 2000, the Justice Department filed a brief in federal appellate court that supported the parents.

Now, "after careful review," Clement wrote, the federal government has decided that the law does not put the burden of proof on schools in such disputes.

In Schaffer v. Weast , the plaintiff is a former Montgomery student named Brian Schaffer who doctors said has attention-deficit hyperactivity disorder. His parents, Jocelyn and Martin Schaffer, sought reimbursement for his private school tuition when they became dissatisfied with the public schools' special education options.

The lead defendant named in their suit is Jerry D. Weast, the Montgomery school superintendent, who denied the reimbursement. The Supreme Court agreed in February to take the case after the U.S. Court of Appeals for the 4th Circuit, based in Richmond, ruled that the parents were obligated to prove that the individualized education program drawn up for Brian Schaffer by the public school system was inadequate.

The Schaffers contended that Weast should have been required to prove its adequacy.

An attorney for the plaintiffs, William H. Hurd of Richmond, could not be reached yesterday for comment. An attorney for advocates of disabled students, Ankur J. Goel of Washington, who has filed a brief in support of the Schaffers, expressed surprise at the Bush administration's departure from the approach of the Clinton administration.

"There really hasn't been anything that's changed," Goel said. "The Justice Department and the solicitor general got it right the first time [in 2000]. What's at stake is making sure that children with disabilities get the education they need."

The case is being watched closely nationwide by disabled-student advocates and school and government officials.

In Virginia, the state attorney general has weighed in for the parents; the state School Boards Association has filed a rebuttal for the school system.

In another development, dueling briefs have emerged from Virginia. In April, state Attorney General Judith W. Jagdmann (R) filed a brief in favor of the Schaffers, for Virginia and eight other states.

The attorneys general argued that putting the burden of proof on school officials was a matter of "fundamental fairness" when those officials control relevant educational data.

But the Virginia School Boards Association sided with Weast in a brief filed Friday for itself and school board groups from five other states. Jagdmann, the association contended, did not consult with local school boards before weighing in.


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