Burden Of Proof Under The IDEA: Does It Make A Difference In Due Process Decisions?

ABSTRACT: “Burden of proof” (BOP), under the Individuals with Disabilities Education Act (IDEA) has been a subject of continuing controversy despite the Supreme Court's 2005 decision in Schaffer v. Weast, which resolved the split among the federal circuits. This brief article (a) traces the contours of the Schaffer decision, (b) identifies subsequent state laws that vary from Schaffer's approach; (c) synthesizes the previous empirical analysis of the differences since Schaffer, and (d) presents the findings of the latest empirical study of the relationship between BOP and due process hearing (DPH) decisions under the IDEA. This limited empirical analysis adds to the previous evidence that BOP under the IDEA does not make a forceful difference on the outcomes of DPH decisions. Indeed, our major finding is that upon removing the outlier jurisdiction of New York, the seemingly dramatic but practically small effect of the increase of parent-favorable outcomes reversed in favor of a more modest and practically insignificant increase in district-favorable outcomes.