No. 00-1471

IN THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIAN SCHAFFER, et al.,

Plaintiffs-Appellees

v.

PAUL VANCE, et al.,

Defendants-Appellants

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

SUPPORTING APPELLEES URGING AFFIRMANCE

JUDITH A. WINSTON                            BILL LANN LEE
    General Counsel                                        Assistant Attorney General

KALA SHAH SURPRENANT                 DAVID K. FLYNN
    Attorney                                                 TERESA KWONG
United States Department                              Attorneys
    of Education                                              Department of Justice
                                                                     P.O. Box 66078
                                                                     Washington, D.C. 20035-6078
                                                                      (202)514-4757

TABLE OF CONTENTS

PAGE

INTEREST OF THE UNITED STATES AS AMICUS CURIAE 1

STATEMENT OF THE ISSUE 2

STATEMENT OF THE CASE 2

A. Statement Of Facts 2

B. Administrative Hearing And District

Court Review 3

SUMMARY OF ARGUMENT 5

ARGUMENT:

THE DISTRICT COURT CORRECTLY HELD THAT THE
SCHOOL DISTRICT HAS THE BURDEN OF PROOF AT
THE ADMINISTRATIVE HEARING 6

A. Allocating The Burden Of Proof To The School
Furthers The IDEA's Goal Of Providing A Free
Appropriate Public Education To Children With
Disabilities 7

B. Fairness Principles Support Allocating The
Burden Of Proof To The Party With Greater
Access To Necessary Evidence 14

CONCLUSION 17

CERTIFICATE OF COMPLIANCE

CERTIFICATE OF SERVICE

- i -

TABLE OF AUTHORITIES

CASES: PAGE

Alamo Heights Indep. Sch. Dist. v. State Bd. of Educ.,

790 F.2d 1153 (5th Cir. 1986) 8

Board of Educ. v. Michael M., 95 F. Supp. 2d 600

(S.D. W. Va. 2000) 11

Board of Educ. v. Rowley, 458 U.S. 176 (1982) 1, 9, 10, 16

Brian S. v. Vance, 86 F. Supp. 2d 538

(D. Md. 2000) 2, 3, 4, 5

Carlisle Area Sch. v. Scott P., 62 F.3d 520

(3d Cir. 1995), cert. denied, 517 U.S.

1135 (1996) 7

Cedar Rapids Community Sch. Dist. v. Garret F.,

526 U.S. 66 (1999) 1

Clyde K. v. Puyallup Sch. Dist., 35 F.3d 1396

(9th Cir. 1994) 7

Department of Labor v. Greenwich Collieries,

512 U.S. 267 (1994) 9

Doe v. Board of Educ., 9 F.3d 455 (6th Cir. 1993),

cert. denied, 511 U.S. 1108 (1994) 7

E.S. v. Independent Sch. Dist., 135 F.3d 566

(8th Cir. 1998) 7

Fleming v. Harrison, 162 F.2d 789 (8th Cir. 1947) 13

Hartmann v. Loudoun County Bd. of Educ., 118 F.3d

996 (4th Cir. 1997), cert. denied, 522 U.S.

1046 (1998) 1-2

Honig v. Doe, 484 U.S. 305 (1988) 11, 15

Johnson v. Independent Sch. Dist., 921 F.2d 1022

(10th Cir. 1990), cert. denied, 500 U.S. 905

(1991) 7

Keyes v. School Dist. No. 1, 413 U.S. 189 (1973) 14

Marie O. v. Edgar, 131 F.3d 610 (7th Cir. 1997) 1

- ii -

CASES (continued): PAGE

NLRB v. Mastro Plastics Corp., 354 F.2d 170

(D.C. Cir. 1965), cert. denied, 384 U.S.

972 (1966) 13, 15

Oberti v. Board of Educ., 995 F.2d 1204

(3d Cir. 1993) 9, 14

S-1 v. Turlington, 635 F.2d 342 (5th Cir.),

cert. denied, 454 U.S. 1030 (1981) 16

Sacramento City Unified Sch. Dist. v. Rachel H.,

14 F.3d 1398 (9th Cir.), cert. denied, 512

U.S. 1207 (1994) 2

Salley v. St. Tammany Parish Sch. Bd., 57 F.3d

458 (5th Cir. 1995) 7

School Bd. v. Malone, 762 F.2d 1210 (4th Cir. 1985) 9

Steadman v. SEC, 450 U.S. 91 (1981) 6

Tatro v. Texas, 703 F.2d 823 (5th Cir. 1983),

aff'd in part and rev'd in part, 468 U.S.

883 (1984) 10

Tice v. Botetourt County Sch. Bd., 908 F.2d 1200

(4th Cir. 1990) 9

Timothy W. v. Rochester, N.H., Sch. Dist., 875 F.2d

954 (1st Cir.), cert. denied, 493 U.S. 983 (1989) 2

United Scenic Artists v. NLRB, 762 F.2d 1027

(D.C. Cir. 1985) 10

Walczak v. Florida Union Free Sch. Dist., 142 F.3d

119 (2d Cir. 1998) 7

STATUTES:

Individuals with Disabilities Education Act (IDEA),

20 U.S.C. 1400 et seq. 1, 2

20 U.S.C. 1400(d)(1)(A) 8

20 U.S.C. 1406 1

20 U.S.C. 1412(a)(1) 14

20 U.S.C. 1413 8

20 U.S.C. 1414 8, 10, 12

20 U.S.C. 1414(a)(2) 13

- iii -

STATUTES (continued): PAGE

20 U.S.C. 1414(d)(1)(A) 13

20 U.S.C. 1414(d)(1)(B) 10, 14

20 U.S.C. 1414(d)(4) 13

20 U.S.C. 1415 3, 8, 11

20 U.S.C. 1415(b)(1) 11

20 U.S.C. 1415(i)(2) 4

20 U.S.C. 1417 1

RULES:

Federal Rules of Appellate Procedure:

Rule 29(a) 2

MISCELLANEOUS:

David M. Engel, Law, Culture, And Children With

Disabilities: Educational Rights And The

Construction Of Difference, 1991 Duke L.J.

166 (1991) 16

- iv -

IN THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 00-1471

BRIAN SCHAFFER, et al.,

Plaintiffs-Appellees

v.

PAUL VANCE, et al.,

Defendants-Appellants

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

SUPPORTING APPELLEES URGING AFFIRMANCE

INTEREST OF THE UNITED STATES AS AMICUS CURIAE

This case poses a question regarding the proper interpretation and application of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. 1400 et seq., an important civil rights statute for children with disabilities. The statute is enforced by the United States Department of Education, which is also authorized to promulgate regulations and interpretive letters. 20 U.S.C. 1406, 1417. Because of its interest in the proper interpretation of the statute, the United States has participated in a number of IDEA cases. See, e.g., Cedar Rapids Community Sch. Dist. v. Garrett F., 526 U.S. 66 (1999); Board of Educ. v. Rowley, 458 U.S. 176 (1982); Marie O. v. Edgar, 131 F.3d 610 (7th Cir. 1997); Hartmann v. Loudoun County Bd. of Educ., 118 F.3d 996 (4th Cir. 1997), cert. denied, 522 U.S. 1046 (1998); Sacramento City Unified Sch. Dist. v. Rachel H., 14 F.3d 1398 (9th Cir.), cert. denied, 512 U.S. 1207 (1994); Timothy W. v. Rochester, N.H., Sch. Dist., 875 F.2d 954 (1st Cir.), cert. denied, 493 U.S. 983 (1989). The United States files this brief pursuant to Fed. R. App. P. 29(a).

STATEMENT OF THE ISSUE

Whether the district court properly allocated the burden of proof to the school to show at the administrative due process hearing that the individualized education program proposed by the school provides a free appropriate public education as required under the IDEA.

STATEMENT OF THE CASE

A. Statement Of Facts

Brian Schaffer has multiple disabilities, including Attention Deficit Disorder and a speech-language impairment. See Brian S. v. Vance, 86 F. Supp. 2d 538, 539 (D. Md. 2000). In 1997, when Brian was in the seventh grade, his mother asked the Montgomery County Public Schools (MCPS) to provide special education services for him. After reviewing outside evaluations submitted by Brian's mother and conducting additional tests, MCPS determined that Brian qualified as a child with a disability for special education and related services under the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. 1400 et seq. See 86 F. Supp. 2d at 540.

Following several meetings with Brian's parents and various school officials, MCPS proposed an individualized education program (IEP) for the 1998-1999 school year that would have provided Brian with part-time special education instruction at Hoover Middle School or, alternatively, at the Robert Frost School. Ibid. Brian's parents (the Schaffers), however, rejected the IEP proposed by MCPS as inadequate and requested a due process administrative hearing, pursuant to 20 U.S.C. 1415, to determine whether the IEP offered a free appropriate public education (FAPE), as required by the IDEA. 86 F. Supp. 2d at 540. At about the same time, the Schaffers enrolled Brian in a private school for learning and language disabled students for the 1998-1999 school year.

B. Administrative Hearing And District Court Review

The due process hearing took place over three days in June and July 1998. Faced with conflicting expert witnesses about the extent of Brian's disabilities and the type of special education that he would require, the administrative law judge (ALJ) ordered both sides to brief the question of which party has the burden of proof in an administrative hearing regarding the adequacy of the draft IEP in providing FAPE under the IDEA. Id. at 540. The ALJ ultimately assigned the burden of proof to Brian and the Schaffers. Acknowledging that the assignment of the burden of proof was "critical," the ALJ ruled that the Schaffers failed to carry their burden to show that the IEP proposed by the school district was inadequate and, consequently, denied their request for reimbursement of Brian's 1998-1999 tuition and costs. Ibid.

(citing ALJ's Decision at 29); id. at 541 (citing ALJ's Decision at 42).

As provided in 20 U.S.C. 1415(i)(2), the Schaffers appealed the ALJ's decision to federal court, where both parties moved for summary judgment on the purely legal question of the burden of proof. The district court held that the ALJ erred in assigning the burden of proof to the parents. 86 F. Supp. 2d at 545. The court noted that the Fourth Circuit had not resolved the question concerning the assignment of the burden of proof at the administrative hearing stage, while other circuits were divided on this issue. Id. at 539. Many of these decisions, however, were not clear as to whether they were ruling on the assignment of the burden of proof at the administrative hearing or on appeal to the district court or both. Id. at 542 n.7. After reviewing the IDEA's statutory purpose and mandates as well as existing case law, including divergent circuit decisions, the district court concluded that the burden of proving the adequacy of a draft IEP, not agreed to by either party, is on the school district.

Here, where the parents had rejected the IEP proposed by the school, the court found that the rationale for placing the burden of proof on the party challenging the ALJ's approval of an IEP in district court is inapposite for assigning the burden of proof to the Schaffers at the administrative hearing. Id. at 544. The court reasoned, inter alia, that where only a draft IEP unilaterally proposed by the school and rejected by the parents is involved, it would be consistent with the school's statutory obligations to provide FAPE to assign to MCPS the burden of showing that its proposed IEP would provide FAPE for Brian. Id. at 543-544. Accordingly, the district court granted the Schaffers' motion for summary judgment and denied the school's motion, holding that the ALJ erroneously assigned the burden of proof to the Schaffers. Id. at 545.

SUMMARY OF ARGUMENT

The district court correctly held that the school has the burden of showing the adequacy of its proposed IEP at the due process administrative hearing. This result is consistent with the IDEA's requirement that the public agency bear the responsibility for ensuring that FAPE is available to a child with a disability. It is also consistent with Congress's intent that the school take the lead in formulating the IEP and that parents have a meaningful opportunity to participate in determining the special education and related services to be provided to their child.

To hold otherwise would unhinge this statutory framework. It would, in effect, allow the school -- through the IEP team, consisting of mostly school representatives -- to propose an IEP and, if the parents disagree with the draft IEP, abstain from the school's statutory responsibilities to provide FAPE and to take the lead in developing the IEP by forcing the parents, who lack the school's resources and knowledge of the IDEA, to prove at the administrative hearing that the IEP does not provide FAPE. The school's stance with respect to a draft IEP challenge at the administrative hearing is also unsupportable in light of Congress's intent for the school to have an ongoing obligation to provide FAPE and to continue to reevaluate the IEP regularly after it has been implemented.

The Court should, therefore, affirm the district court's allocation of the burden of proof to the school at the administrative hearing.

ARGUMENT

THE DISTRICT COURT CORRECTLY HELD THAT THE SCHOOL DISTRICT HAS
THE BURDEN OF PROOF AT THE ADMINISTRATIVE HEARING

The question presented here -- whether the school has the burden of proof to demonstrate that its proposed individualized education program (IEP) provides a free appropriate public education (FAPE) at the administrative due process hearing -- turns entirely on congressional intent. See Steadman v. SEC, 450 U.S. 91, 95-96 & n.10 (1981) (stating that courts must look to congressional intent where Congress has not spoken directly on the precise question at issue). Here, the district court's allocation of the burden of proof to the school is correct because it furthers the Individuals with Disabilities Education Act's (IDEA) mandate that schools provide FAPE to children with disabilities. This allocation is also consistent with the policies underlying the assignment of burden of proof, including the reality that schools can best access and interpret evidence and information regarding the education of a child with a disability.

The Fourth Circuit has not addressed this question, while other circuits appear to have reached conflicting results. The Second, Third, Eighth, and Ninth Circuits have allocated the burden of proof at the administrative hearing to the school. See, e.g., Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 122 (2d Cir. 1998); E.S. v. Independent Sch. Dist., 135 F.3d 566, 569 (8th Cir. 1998); Carlisle Area Sch. v. Scott P., 62 F.3d 520, 533 (3d Cir. 1995), cert. denied, 517 U.S. 1135 (1996); Clyde K. v. Puyallup Sch. Dist., 35 F.3d 1396, 1398 (9th Cir. 1994). In contrast, the Fifth, Sixth, and Tenth Circuits have assigned to parents challenging an IEP the burden to show why the IEP is inadequate. See, e.g., Salley v. St. Tammany Parish Sch. Bd., 57 F.3d 458, 467 (5th Cir. 1995); Doe v. Board of Educ., 9 F.3d 455, 458 (6th Cir. 1993), cert. denied, 511 U.S. 1108 (1994); Johnson v. Independent Sch. Dist., 921 F.2d 1022, 1026 (10th Cir. 1990), cert. denied, 500 U.S. 905 (1991). These decisions are unclear, however, as to whether this standard applies to the administrative hearing stage or solely to appeals of the ALJ decision.

After examining the decisions by the other circuits and the IDEA's statutory requirements, the district court correctly agreed with the position of the Second, Third, Eighth, and Ninth Circuits and assigned the burden of proof to the school to effectuate the objectives of the IDEA.

A. Allocating The Burden Of Proof To The School Furthers
The IDEA's Goal Of Providing A Free Appropriate Public
Education To Children With Disabilities

In enacting the IDEA, Congress sought to ensure "that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs." 20 U.S.C. 1400(d)(1)(A). To accomplish this objective, the IDEA requires that schools provide FAPE for all children with disabilities. 20 U.S.C. 1413. As part of its obligation to provide FAPE, a school must meet with the parents of the disabled child and various school officials to discuss the appropriate special education and related services for the child and to prepare an IEP. 20 U.S.C. 1414. The school must then be prepared to defend that it has satisfied its statutory obligations by conducting appropriate evaluations to ensure that the child will receive FAPE because, if the parents disagree with the school's proposed IEP, they have the right to have a due process hearing to determine whether the proposed IEP provides the child with FAPE. 20 U.S.C. 1415.

Because of its primary role in developing the IEP, the school argues that the ALJ should defer to the school's expertise in making educational policy by presuming that the IEP is correct and allocating the burden of proof to the parents (App. Br. 17-19). See Alamo Heights Indep. Sch. Dist. v. State Bd. of Educ., 790 F.2d 1153, 1158 (5th Cir. 1986) (stating that deference to the IDEA's reliance on state and local school authorities' expertise creates a presumption in favor of the IEP's placement of the child and the party challenging the IEP should bear the burden of proof). This argument fails for the following reasons.

The school's argument is misplaced because it confuses deference, which concerns the weight given to evidence, with the burden of proof, the obligation to persuade the trier of fact of the truth of a proposition. Compare Department of Labor v. Greenwich Collieries, 512 U.S. 267, 275 (1994) (defining burden of proof), with Oberti v. Board of Educ., 995 F.2d 1204, 1219 (3d Cir. 1993) (defining deference). Deference is unrelated to the burden of proof and, therefore, irrelevant to determining the assignment of the burden of proof.

Furthermore, this Court has held that school decisions are not entitled to automatic deference. See School Bd. v. Malone, 762 F.2d 1210, 1217 (4th Cir. 1985) (holding that the district court should defer to the state administrative proceedings, and not to the school board's educational decisions). At most, a district court reviewing an ALJ's approval of an IEP may defer to the ALJ's factual determinations, but this deference stems from respect for the administrative process, and not for the school. See Tice v. Botetourt County Sch. Bd., 908 F.2d 1200, 1206 n.5 (4th Cir. 1990) (stating that deference "is nothing more than a recognition that the conclusions of a decision-maker, which has had the benefit of more immediate and direct exposure to a controversy, demand respect on review"). This is consistent with the Supreme Court's decision in Board of Education v. Rowley, 458 U.S. 176, 206 (1982), which held that courts should not "substitute their own notions of sound education policy for those of the school authorities which they review" after an ALJ has already approved of the school's IEP.

The school's argument for presuming the correctness of the IEP is also inconsistent with the objectives of the IDEA and the rights and obligations under the statute. A presumption is valid only if "a rational nexus between the proven facts and the presumed facts" exists, and the presumption comports with the legislative intent. United Scenic Artists v. NLRB, 762 F.2d 1027, 1034 (D.C. Cir. 1985). Here, neither criterion is satisfied. As the school admits (App. Br. 17), the IDEA assigns the primary role in formulating the educational plan in the IEP to the school. 20 U.S.C. 1414. See also Rowley, 458 U.S. at 207 ("The primary responsibility for formulating the education to be accorded a handicapped child, and for choosing the educational method most suitable to the child's needs, was left by the Act to state and local educational agencies in cooperation with the parents or guardian of the child."). For example, even though the parents participate in the development of the IEP, the remaining members of the IEP team charged with drafting the IEP and convened by the school district are mostly school officials, 20 U.S.C. 1414(d)(1)(B), and it is ultimately the IEP team's responsibility to draft the IEP. See Tatro v. Texas, 703 F.2d 823, 830 (5th Cir. 1983) (stating that the IEP is jointly developed by the parents and the school, but the "primary responsibility for formulating handicapped children's education [is] in the hands of state and local school agencies"), aff'd in part and rev'd in part, 468 U.S. 883 (1984); Board of Educ. v. Michael M., 95 F. Supp. 2d 600, 608 (S.D. W. Va. 2000) (stating that the school district is responsible for drafting the IEP).

In light of the school's dominant position in developing the IEP, the IDEA contains procedural safeguards to ensure that parents have a meaningful opportunity for input into decisions regarding their child's education, such as the right to attend IEP meetings, have an ALJ review the proposed educational services and placement, and receive notices and information about a child's educational progress. See Honig v. Doe, 484 U.S. 305, 311 (1988) (stating that the purpose of the IDEA's procedural safeguards is to ensure the parents' meaningful participation in decisions regarding their child's education); see also 20 U.S.C. 1415(b)(1). To presume an IEP proposed by the school is correct would render meaningless the role of the parents and neutral ALJ in the statutory scheme. Applying a presumption of correctness to a draft IEP rejected by the parents, moreover, would unjustifiably reduce the statute's goal of making the parents meaningful participants in developing the IEP where the school has superior resources and knowledge of the IDEA.

Notwithstanding this result, the school argues that Congress did not intend to assign the burden of proof to the school because Congress did not include this allocation of the burden of proof as one of the procedural safeguards contained in 20 U.S.C. 1415 (App. Br. 20). The legislative history, however, reveals that Congress did not consider the issue of burden of proof and, under these circumstances, the burden of proof should be allocated to further the goals of the IDEA.

As described above, allocating the burden of proof to the parents would undermine the IDEA's provisions that ensure parents meaningful participation in developing the IEP. By contrast, assigning the burden of proof to the school is consistent with the IDEA'S overall objective of providing educational services to disabled children by serving as an additional incentive for school officials to draft IEPs that provide FAPE to children with disabilities. And, because the IDEA contemplates that the school would take the lead in identifying the child's educational and related needs and proposing an appropriate educational plan, it is entirely consistent with the statutory scheme to also require that the school be able to prove at the due process administrative hearing that the proposed IEP will provide FAPE to a child with a disability.

Having to carry the burden of proof regarding the adequacy of its proposed IEP is consistent with the school's existing statutory duties under the IDEA to provide FAPE and should not substantially increase the workload for the school. The school is already required to evaluate the child's needs by consulting with various school officials, including regular school teachers and special education teachers, as well as any experts related to the child's unique needs. See 20 U.S.C. 1414. Furthermore, in drafting the IEP, the school must describe, among other things, the child's disability, how the disability affects the child's ability to participate in a regular classroom, the special education services to be provided, and expectations for the child's progress under the IEP. See 20 U.S.C. 1414(d)(1)(A). The school also has an ongoing duty to ensure that a child with a disability receive FAPE until the child graduates or exits the school system by either leaving voluntarily or reaching the appropriate age. In particular, the school must take the initiative in reevaluating the child and reviewing the IEP on a regular basis even after the IEP has been implemented. See 20 U.S.C. 1414(a)(2) and (d)(4). Accordingly, the school's duties under the IDEA continue beyond the drafting of the IEP.

B. Fairness Principles Support Allocating The Burden Of
Proof To The Party With Greater Access To Necessary
Evidence

Fairness principles also call for assigning the burden of proof to the party that controls the essential evidence or possesses superior knowledge of the facts, which in this case is the school. See NLRB v. Mastro Plastics Corp., 354 F.2d 170, 176-177 (D.C. Cir. 1965) (allocating the burden of proof to the party who controls the relevant information needed to decide the dispute), cert. denied, 384 U.S. 972 (1966); Fleming v. Harrison, 162 F.2d 789, 792 (8th Cir. 1947) (stating that question of fairness affects the assignment of the burden of proof). Indeed, courts have often allocated the burden of proof to the party other than the one challenging an agency action in order to accommodate statutory priorities or to protect certain interests, in accordance with the Supreme Court's general standard allowing burden shifting according to "policy and fairness based on experience." Keyes v. School Dist. No. 1, 413 U.S. 189, 209 (1973). Thus, in allocating the burden of proof, the Court should take into account practical considerations in resolving factual issues through administrative adjudication (e.g., determining which party controls and is capable of explaining the evidence needed to resolve the dispute) and the purpose of the statute at issue.

As in Oberti v. Board of Education, an IDEA case, the school here "has better access to the relevant information, greater control over the potentially more persuasive witnesses (those who have been directly involved with the child's education), and greater overall educational expertise than the parents." 995 F.2d at 1219. Congress recognized these advantages and, therefore, required the school to include the parents in the development of the IEP. 20 U.S.C. 1414(d)(1)(B). But, ultimately, the onus is on the school to summon its resources and outside experts, if needed, to devise an appropriate IEP and provide a free appropriate public education. 20 U.S.C. 1412(a)(1). It is undeniable that Congress intended for schools to take the lead in effectuating the IDEA. Taken together, these practical considerations and the statutory scheme of the IDEA warrant assigning the burden of proof to the school.

Amici Maryland Association of Boards of Education and National School Boards Association (collectively, Boards of Education) argue, however, that despite these factors, fairness does not support imposing the burden of proof on the school. They contend that the parents are often sophisticated in meeting with school officials to formulate the IEP because they have access to all of their child's school records and, in any event, have many procedural safeguards available to them under the statute (Boards of Education Br. 12-14).

In particular, they emphasize that the IDEA allows the parents full access to the school's records and related information, thereby giving the parents "an equal opportunity to determine what is appropriate for the child" even though the "parents may lack the educational 'experience' to formulate an appropriate instructional plan" (Boards of Education Br. 13). If anything, this argument supports placing the burden of proof on the school because, as the Boards of Education acknowledge, the parents may lack the ability and expertise to properly interpret their child's school records. See Mastro Plastics Corp., 354 F.2d at 176 (stating that access to evidence alone does not determine the assignment of the burden of proof; the court must also consider which party has the ability to explain the records and interpret any ambiguities that they may contain).

The Boards of Education's argument that the IDEA already provides sufficient procedural safeguards for the parents is similarly unavailing. As the Fifth Circuit observed, "in most cases, the handicapped students and their parents lack the wherewithal either to know or to assert their rights" under the IDEA. S-1 v. Turlington, 635 F.2d 342, 349 (5th Cir.), cert. denied, 454 U.S. 1030 (1981), and abrogated on other grounds by Honig v. Doe, 484 U.S. 305, 317 (1988). The Boards of Education's assertion is further belied by the results of a study concerning the effectiveness of the IDEA, in which families and school officials in western New York were interviewed about their experiences with the IDEA. See David M. Engel, Law, Culture, And Children With Disabilities: Educational Rights And The Construction Of Difference, 1991 Duke L.J. 166 (1991). That study revealed that most of the parents were not aware of their rights and, consequently, failed to take advantage of the procedural safeguards provided in the statute. Id. at 179, 203. Even if parents do "not lack ardor in seeking to ensure that handicapped children receive all of the benefits to which they are entitled" under the IDEA, Rowley, 458 U.S. at 209, this study demonstrates that desire alone is not a substitute for knowledge and experience.

Based on the foregoing, it is clear that the school is in a better position to prove the appropriateness of its proposed IEP in providing fair appropriate public education to a child with a disability and, therefore, should bear the burden of proof at the administrative due process hearing.

CONCLUSION

The district court's judgment should be affirmed.

Respectfully submitted,

JUDITH A. WINSTON                            BILL LANN LEE
    General Counsel                                        Assistant Attorney General

KALA SHAH SURPRENANT                 DAVID K. FLYNN
    Attorney                                                 TERESA KWONG
United States Department                              Attorneys
    of Education                                              Department of Justice
                                                                     P.O. Box 66078
                                                                     Washington, D.C. 20035-6078
                                                                      (202)514-4757

CERTIFICATE OF COMPLIANCE

I hereby certify that pursuant to Fed. R. App. P. 32(a)(7)(C), this amicus brief was prepared using WordPerfect 7 and contains 3,978 words and 453 lines of 12-point Courier type.

Teresa Kwong
Attorney

CERTIFICATE OF SERVICE

I hereby certify on August 7, 2000, that I caused to be served two copies of the foregoing Brief for the United States as Amicus Curiae Supporting Appellees Urging Affirmance by first-class mail, postage prepaid, on the following counsel:

Zvi Greismann
Montgomery County Public Schools
850 Hungerford Drive
Rockville, MD 20850

Michael J. Eig
Michael J. Eig & Associates
1776 Massachusetts Ave., N.W., Suite 300
Washington, D.C. 20036

Eric B. Schwartz
Maryland Association of Boards of Education
621 Ridgely Avenue, Suite 300
Annapolis, MD 21401

Julie K. Underwood
National School Boards Association
1680 Duke Street
Alexandria, VA 22314

Teresa Kwong
Attorney