Letters to the Editor
Dear
Editor,
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.
Mai
Dear Editor,
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.
Matt Cohen
