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Matt Cohen on the Schaffer v Weast Supreme Court Decision From PLUK December 05 / January 06 newsletter
Matt is an attorney well known for his work in special education law. Visit www.ldonlinc.org/article.php?id=O&Inc=9 for more of his legal briefs.
The recent US Supreme Court decision, Schaffer v. Weast, has resulted in widespread media coverage which gives the impression that parents have electively lost the right to advocate for their children. This impression is false and it is important for all concerned with the rights of kids with disabilities to set the record straight. While it would have been preferable that the decision ruled in favor of the parents and assigned the burden of proof to schools in all special education disputes, the decision does not have the cataclysmic implication claimed by some.
First, the decision expressly avoided ruling on whether state burden of proof rules for special education cases were overturned. Many states have state rules that expressly or implicitly assign the school districts the burden of proof in special education cases. These laws were not overturned and unless, or until the courts overturn those laws, they remain in force.
Second, the burden of proof is a highly important but technical litigation rule. Most cases are not so close that the burden of proof is the legal threshold by which the cases are determined. In cases that strongly favor parents or schools, the burden of proof should not be an issue.
Third, the Court recognizes that schools have a "natural advantage" in information and expertise. The decision emphasizes the importance of schools providing parents with all records that the school possesses in relation to their child. Equally or more important, it stresses the importance of an independent educational evaluation... (based on) all the materials that the school must make available. The Court emphasizes that for the process to be fair, the parents must have a realistic opportunity to access the necessary evidence and have access to experts with the firepower to match the opposition. As some courts have dismissed the value of outside evaluation in comparison to the opinion of school evaluations, the Schaffer decision should make clear: 1) the importance of outside evaluators having access to sufficient information to make accurate findings, |
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1) arguably including access not only to records, but also to observation of the child and program, and 2) that such outside evaluations must be given equal weight to the schools' evaluations.
Some schools, based on media reports and advice from lawyers, may conclude that the Schaffer decision is a license to do less. While assigning the burden to the schools in all cases would have been an even stronger outcome to support of parents rights, the Schaffer opinion should not be read as blanket permission for schools to do what they wish or to provide inadequate programs.
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FAMILY HEALTH HISTORY TOOL
SURGEON GENERAL RELEASES WEB-BASED FAMILY HEALTH HISTORY TOOL
My Family Health Portrait is a Web-based tool designed to help families gather and share their health information. The tool, released as part of the U.S. Surgeon General's Family Health Initiative, organizes information into a printout that an individual can use, in partnership with a health professional, to determine whether he or she is at increased risk for six common diseases with a known genetic contribution, and for other conditions that may run in families. Users can highlight certain diseases, such as heart disease or diabetes, and produce personalized diagrams or charts for each family member that can then be used to develop individualized diagnosis, treatment, and prevention plans. The tool is intended for use by individuals, families, and health professionals in understanding the importance of collecting a family health history and in making the process of gathering the information easier and more efficient. The tool is available in both English and Spanish at https://familyhistory.hhs.gov.
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