Schaffer ex rel. Schaffer v. Weast - Oral Argument - October 05, 2005 Page 2

Schaffer ex rel. Schaffer v. Weast

Media for Schaffer ex rel. Schaffer v. Weast

Audio Transcription for Opinion Announcement - November 14, 2005 in Schaffer ex rel. Schaffer v. Weast

Audio Transcription for Oral Argument - October 05, 2005 in Schaffer ex rel. Schaffer v. Weast

William H. Hurd:

Your Honor, there are--

Antonin Scalia:

--military schools on military--

William H. Hurd:

--DOD schools--

Antonin Scalia:

--DOD schools.

What do you do with them?

Are they governed by the APA?

William H. Hurd:

--We don't believe so, Your Honor.

Antonin Scalia:

No?

William H. Hurd:

They are not.

And part of the reason for that has to do with this unique structure of the Act.

It is a very nontraditional statute.

It is--

Antonin Scalia:

Well, you'd be suing some Federal agency.

I mean, it has to be some Federal agency that's running that school, and at least for that kind of a school the burden is clearly going to be on the person challenging the agency action.

William H. Hurd:

--I don't agree, Your Honor, and let me explain why, because of the unique structure of this Act, it creates an equal partnership between parents and the school system, with the purpose of that partnership being to produce an Individualized Education Program for the benefit of the child.

And, as this Court recognized in Honig, that IEP is the centerpiece of the entire statute.

Sandra Day O'Connor:

Yeah, well, what if you had an IEP that the parents had initially agreed with, and then they decide it isn't working well, they want to challenge it.

They shouldn't have a burden of proof?

William H. Hurd:

Your Honor, that would be a different situation, and courts below have reached different results on that.

We believe that the school system--

Sandra Day O'Connor:

Well, you mean the court has... every court faced with this problem is supposed to decide, in that particular case, who hast who has the burden?

William H. Hurd:

--No, Your Honor.

Some courts have decided that, where either party... the school system or the parents... challenges an existing IEP or wants to change an existing IEP, some courts have said the burden is always on the school system, some have said the party challenging has the burden.

But--

Sandra Day O'Connor:

Do you--

William H. Hurd:

--in this case--

Sandra Day O'Connor:

--do you think it's open to a State to adopt a general rule on who has the burden of proof under this statute?

William H. Hurd:

--Your Honor, we think that it is not.

We believe it is a Federal question that--

Sandra Day O'Connor:

Have some States purported to adopt a general rule on this?