I just wanted to commend Access Press and Dao Xiong from PACER for writing the article about Hmong children with disabilities and what their parents can do to help them live full, productive lives. It was great to have the same article in Hmong also! Thanks, and I look forward to similar articles in the future.
The recent US Supreme Court decision, Schaffer v. Weast, has resulted in widespread media coverage which gives the impression that parents have effectively 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 implications claimed by some.
First, the decision expressly avoided ruling on whether state burden of proof rules for special education cases were overturned. Many states, including Illinois, 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 which 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 evaluations in comparison to the opinions of school evaluators, the Schaffer decision should make clear: 1) the importance of outside evaluators having access to sufficient information to make accurate findings, 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 school’s 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 in 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.