The United States Supreme Court has decided parents seeking relief in special education due process hearings bear the burden of proving the case. The Court’s November 14th decision in Schaffer v. Weast rejected the position taken by Education Law Center and twelve other disability advocacy groups in an amicus brief. ELC argued for placing the burden of proof on the school district, irrespective of whether it is the party requesting the hearing.

The Schaffer opinion relies heavily on the fact that the traditional placement of the burden of proof is on the petitioning party. It reasoned that since special education law provides numerous opportunities for children to obtain information about the district’s case, there was no reason to depart from that traditional burden of proof rule.

New Jersey special education advocates are now considering how to minimize the impact of Schaffer, and ELC will report on these efforts shortly. Students with disabilities, parents and their attorneys, however, should take note that the decision makes no determination about the authority of individual states to allocate the burden of proof to school districts, as New Jersey has consistently done. In addition, the decision only determines the "burden of proof," not the "burden of production." Under New Jersey law, the school district should continue to be the party that must first "produce" or present its case to an administrative law judge. Finally, for those cases brought by school districts, the burden of proof remains on them.

For more information, contact ELC Senior Attorney Ruth Lowenkron at 973-624-1815, ext. 20 or rlowenkron@edlawcenter.org.

Prepared: November 17, 2005

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