In the Chicken Little story that is currently playing in theaters, Chicken Little, the main character, tells all the other animals that the sky is falling. Without any real consideration for the truth of the matter, the animals believe her. The only one who benefited from this situation was the cool-headed Foxy Loxey who takes full advantage of the situation. Well, after one week of commentators and other attorneys proclaiming that the sky is falling after Schaffer v. Weast, I am here to tell you that is just false. If I am destined to play the part of Foxy Loxey in the post-Schaffer legal drama, so be it. Otherwise, strategic school people may prey on parents’ fears and misconceptions.
Schaffer set out a rule on the burden of proof that does not change much of anything in terms of real life practice. Rarely, if ever, is a case so close in the evidence that it is decided implicitly or explicitly on the basis of burden of proof. Recently, I had occasion to research the issue of burden of proof at due process, and I found that to the extent it is even noted, it was never applied. I looked at over 50 cases from around the country and in not ONE case was the rule of burden of proof applied such that one side or the other won the case. Indeed, Judge Breyer, an Associate Judge who heard the Schaffer case, questioned why the case was even before the Supreme Court, because burden of proof in an IDEA case is rarely applied.
The decision in Schaffer does not disturb state law. In Illinois, the School Code still places the burden of proof for all that matters on the school district. The simple reality is that only a foolhardy parents’ lawyer would ever approach a case and factor in burden of proof in strategic decision-making. I always approach a case aware of the inherent mantle of respectability that school districts enjoy, even though that is not often a deserved reputation in my view. There are certain hard wrought myths in America that do not die easily. Growing up, I was always told that as a rule, the three groups you could always trust were the police, clergy and teachers. Well, pick up a newspaper on any given day and the exceptions to this rule too often overshadow the rule. Nevertheless, going into a hearing, the myth dies hard and dies only with overwhelming evidence to demonstrate the extent to which a child has not received an appropriate education. Briefly, Schaffer changes nothing in my approach to cases and does not change my expectation of winning or losing cases.
The biggest danger to parents of special needs children post-Schaffer is the belief that the sky is falling, and as one commentator stated, “it is all over.” I say hogwash to that sentiment! If parents buy into the unfair and unfounded rhetoric, then there is a real problem. On the other hand, armed with the realization that the relative negotiation positions have remained unchanged after Schaffer, parents will have the same power they had before this decision, and in some ways, they may have marginally more power (as discussed below). In the story, Chicken Little was wrong. So are the commentators that state Schaffer has changed everything.
In fact, as result of Schaffer, I have successfully advocated for the position that parents need fuller access to evidence so they can be equally armed to fight the school; a position that grows directly out of the decision. Schaffer also reiterated the primacy of the procedural safeguards embodied in the statute that all too often hearing officers are willing to ignore.
In a recent op-ed piece, The New York Times criticized the Schaffer decision but concluded that it will be years before we know what effect, if any, it will have on the legal landscape. At worst, we should also take a wait-and-see approach counseled in the op-ed piece. Certainly, we should not rashly conclude that the sky is falling when that opinion is unfounded nonsense on stilts.