                           PUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


JERRY WEAST, Superintendent of         
Montgomery County Public
Schools; BOARD OF EDUCATION OF
MONTGOMERY COUNTY,
              Plaintiffs-Appellants,
                 v.
BRIAN SCHAFFER, a minor, by his
parents and next friends, Jocelyn
and Martin Schaffer; JOCELYN
SCHAFFER; MARTIN SCHAFFER,
              Defendants-Appellees.             No. 03-1030


NATIONAL SCHOOL BOARDS
ASSOCIATION; MARYLAND
ASSOCIATION OF BOARDS OF
EDUCATION; NORTH CAROLINA SCHOOL
BOARDS ASSOCIATION; SOUTH
CAROLINA SCHOOL BOARDS
ASSOCIATION; VIRGINIA SCHOOL
BOARDS ASSOCIATION,
 Amici Curiae Supporting Appellant.
                                       
           Appeal from the United States District Court
            for the District of Maryland, at Greenbelt.
                 Peter J. Messitte, District Judge.
                          (CA-99-15-PJM)

                      Argued: January 23, 2004

                       Decided: July 29, 2004

 Before WILKINSON, LUTTIG, and MICHAEL, Circuit Judges.
2                         WEAST v. SCHAFFER
Reversed and remanded by published opinion. Judge Michael wrote
the opinion, in which Judge Wilkinson joined. Judge Luttig wrote a
separate dissenting opinion.


                             COUNSEL

ARGUED: Zvi Greismann, MONTGOMERY COUNTY PUBLIC
SCHOOLS, Rockville, Maryland, for Appellants. Michael Jeffrey
Eig, Chevy Chase, Maryland, for Appellees. ON BRIEF: Haylie M.
Iseman, MICHAEL J. EIG & ASSOCIATES, P.C., Chevy Chase,
Maryland, for Appellees. Naomi Gittins, Staff Attorney, NATIONAL
SCHOOL BOARDS ASSOCIATION, Alexandria, Virginia; Scott
Price, General Counsel, SOUTH CAROLINA SCHOOL BOARDS
ASSOCIATION, Columbia, South Carolina; Allison B. Schafer,
Director of Policy/Legal Services, NORTH CAROLINA SCHOOL
BOARDS ASSOCIATION, Raleigh, North Carolina; Stephen C.
Bounds, Director of Legal & Policy Services, MARYLAND ASSO-
CIATION OF BOARDS OF EDUCATION, Annapolis, Maryland;
Elizabeth Ewing, Director of Legal & Policy Services, VIRGINIA
SCHOOL BOARDS ASSOCIATION, Charlottesville, Virginia, for
Amici Curiae.


                              OPINION

MICHAEL, Circuit Judge:

   The Individuals with Disabilities Education Act (IDEA) gives
every disabled child the right to a "free appropriate public education"
tailored to meet his or her unique needs. 20 U.S.C. § 1400(d)(1)(A).
To enforce this right, the IDEA requires every public school system
receiving federal funds to develop and implement an Individualized
Education Program (IEP) for each disabled child in its jurisdiction. Id.
§ 1412(a)(3)-(4). When the parents believe their disabled child’s IEP
is inadequate, they may initiate an administrative proceeding (called
a due process hearing) to challenge the IEP. Id. § 1415(f). The parents
of Brian Schaffer initiated a due process hearing to challenge the IEP
developed for him by Maryland’s Montgomery County Public School
                          WEAST v. SCHAFFER                           3
System (MCPS). The issue in this appeal is whether the district court
was correct in assigning the burden of proof to the school system in
that proceeding. The IDEA is silent on burden of proof. Because we
have no valid reason to depart from the general rule that the party ini-
tiating a proceeding has the burden of proof, we reverse and remand.

                                   I.

   Brian, who has Attention Deficit Hyperactivity Disorder and other
learning disabilities, attended Green Acres private school in Mont-
gomery County from pre-kindergarten through seventh grade. Green
Acres does not have a special education program, and Brian struggled
academically throughout his years in attendance there. Brian was
placed on probation when he began the seventh grade in the fall of
1997; in October of that year school personnel told Brian’s mother
that he needed to attend a school that could more adequately accom-
modate his disabilities.

   Shortly thereafter (in November 1997), Brian’s mother contacted
the Herbert Hoover Middle School, an MCPS school, and requested
that Brian be evaluated to determine his eligibility for special educa-
tion services for the 1998-1999 school year. In the meantime, Brian’s
parents applied to have him admitted to another private school, the
McLean School of Maryland, for the 1998-1999 academic year. On
February 26, 1998, the MCPS committee that determines special edu-
cation eligibility, the Admission, Review, and Dismissal (ARD) Com-
mittee, held its first meeting to discuss Brian’s educational needs with
his parents, their lawyer, and Herbert Hoover school officials. The
following month Brian was admitted to the McLean School for the
next academic year, and his parents paid the enrollment fee to reserve
his place in the eighth grade class. The ARD Committee held its sec-
ond meeting in early April 1998, found Brian eligible for special edu-
cation, and offered an IEP for the next (1998-1999) school year.

   The proposed IEP specified that Brian would receive 15.3 hours of
special education and 45 minutes of speech therapy each week at his
"home" school, Herbert Hoover Middle School. After the parents
expressed concern about class size at Herbert Hoover, the MCPS
offered to provide the same IEP services at the Robert Frost Middle
School, a school ten minutes from Brian’s home, where he could
4                         WEAST v. SCHAFFER
receive more of his instruction in smaller classes. Shortly thereafter,
in May 1998, the parents informed MCPS that the proposed IEP was
inadequate and that Brian would attend private school at McLean. At
the same time, the parents requested a due process hearing pursuant
to the IDEA, claiming that the proposed IEP denied Brian a free
appropriate education; they sought reimbursement of the tuition and
other expenses for Brian’s private school attendance. (The IDEA
requires the school system to arrange for an impartial due process
hearing, and the hearing cannot be conducted by a system employee
or an employee of the state educational agency. See 20 U.S.C.
§ 1414(f)(3). In Maryland the due process hearing is conducted by an
administrative law judge (ALJ) in the state’s Office of Administrative
Hearings. Md. Code Ann., Educ. § 8-413(c) (Michie 1997); A.B. v.
Lawson, 354 F.3d 315, 320 (4th Cir. 2004).)

   At the original due process hearing in Brian’s case, the ALJ
assigned the burden of proof to the parents. The parents challenged
the substance of the IEP, not the process by which it was developed,
and the ALJ explained that deference is owed to education profession-
als in the substantive design of an IEP. The parents were therefore
required to prove that the IEP was inadequate, specifically, that it was
not "reasonably calculated to enable the child to receive educational
benefits." Hendrick Hudson Bd. of Educ. v. Rowley, 458 U.S. 176,
207 (1982). Both sides submitted extensive expert testimony, and the
ALJ considered the case to be close. He commented that the "assign-
ment of the burden of proof [was] critical" to the outcome. J.A. 46.
Ultimately, the ALJ concluded that the parents had not met their bur-
den. The ALJ’s order upheld the IEP proposed by the MCPS and
denied the parents’ request for reimbursement for Brian’s private
school expenses.

   Brian’s parents sued the MCPS (technically, the Board of Educa-
tion of Montgomery County and its superintendent) in district court,
claiming that the ALJ had erred in assigning the burden of proof to
them. The district court, agreeing with the parents, reallocated the
burden of proof to the MCPS and remanded the case to the ALJ for
further proceedings. Brian S. v. Vance (Schaffer I), 86 F. Supp. 2d
538 (D. Md. 2000). The MCPS appealed the district court’s Schaffer
I order to our court, but before we heard argument the ALJ reconsid-
ered the case pursuant to the district court’s remand order. After reas-
                         WEAST v. SCHAFFER                           5
signing the burden of proof to the MCPS, the ALJ found that the
MCPS had failed to prove the adequacy of the IEP. The ALJ ordered
the MCPS to make partial reimbursement to the parents for Brian’s
tuition and expenses at private school for the 1998-1999 year. The
MCPS then filed an action (Schaffer II) in district court to challenge
the ALJ’s reassignment of the burden of proof. In the meantime, the
MCPS’s appeal from the district court’s order in Schaffer I was still
pending in this court. We disposed of that appeal by vacating the dis-
trict court’s order and "remand[ing] to that court with directions that
any issue with respect to the proof scheme in this case be consolidated
with the consideration of the merits." Schaffer v. Vance, 2 Fed. Appx.
232, 233 (4th Cir. 2001) (unpublished). Accordingly, in Schaffer II
the district court, after reaffirming that the MCPS had the burden of
proof, concluded that the ALJ had decided correctly on reconsidera-
tion that the proposed IEP was inadequate. The district court then set
aside the ALJ’s decision on tuition and expenses, awarding full reim-
bursement to the parents. Weast v. Schaffer (Schaffer II), 240 F. Supp.
2d 396 (D. Md. 2002). The MCPS now appeals the district court’s
decision in Schaffer II.

                                  II.

                                  A.

   The IDEA is silent about which side bears the burden of proof in
a state administrative proceeding brought by parents to challenge the
adequacy of an IEP. When a statute is silent, the burden of proof is
normally allocated to the party initiating the proceeding and seeking
relief. See, e.g., J. Strong, McCormick on Evidence § 337 (5th ed.
1999); Dalton v. Capital Assoc. Indus. Inc., 257 F.3d 409, 416 (4th
Cir. 2001); Newport News Shipbuilding & Dry Dock Co. v. Loxley,
934 F.2d 511, 516 (4th Cir. 1991). Although "the natural tendency is
to place the burden[ ] on the party desiring change" or seeking relief,
other factors such as policy considerations, convenience, and fairness
may allow for a different allocation of the burden of proof. McCor-
mick on Evidence § 337.

   Today our circuit must decide how to allocate the burden of proof
in one of these IDEA-prescribed, state administrative proceedings ini-
tiated by parents to challenge an IEP. Other circuits are split — and
6                          WEAST v. SCHAFFER
splintered in reasoning — on this question. Three circuits assign the
burden to the parents, and four (perhaps five) assign it to the school
system. The Sixth Circuit holds to "the traditional burden of proof"
and requires the parents challenging an IEP to establish both its pro-
cedural and substantive deficiencies. Cordrey v. Eukert, 917 F.2d
1460, 1466 (6th Cir. 1990). The Fifth and Tenth Circuits also assign
the burden of proof to the parents, but for a different reason. Accord-
ing to these circuits, because the statute relies on the expertise of edu-
cation professionals in local school systems, their decisions about the
substantive terms of an IEP are owed deference; as a result, the par-
ents bear the burden of proving why an IEP is deficient. Alamo
Heights Indep. Sch. Dist. v. State Bd. of Educ., 790 F.2d 1153, 1158
(5th Cir. 1986); Johnson v. Indep. Sch. Dist. No. 4, 921 F.2d 1022,
1026 (10th Cir. 1990).

   On the other side the Third Circuit assigns the burden of proof to
school systems when their IEPs are challenged by parents in adminis-
trative proceedings. Carlisle Area Sch. Dist. v. Scott P., 62 F.3d 520,
533 (3d Cir. 1995) (citing Oberti v. Bd. of Educ., 995 F.2d 1204, 1219
(3d Cir. 1993) (holding that when an administrative decision uphold-
ing an IEP is challenged in district court, the school district has the
burden of proof because of its expertise and access to information and
witnesses)). Three other circuits, the Second, Eighth, and Ninth, have
announced without explanation that the school system has the burden
of proving the adequacy of the IEP at the administrative hearing. Wal-
czak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 122 (2d Cir. 1998);
E.S. v. Independent Sch. Dist. No. 196, 135 F.3d 566, 569 (8th Cir.
1998); Clyde K. v. Puyallup Sch. Dist. No. 3, 35 F.3d 1396, 1398 (9th
Cir. 1994). Finally, the D.C. Circuit assigned the burden of proof to
a school system when an IEP was challenged as procedurally defi-
cient, noting that "[t]he underlying assumption of the Act is that to the
extent its procedural mechanisms are faithfully employed, [disabled]
children will be afforded an appropriate education." McKenzie v.
Smith, 771 F.2d 1527, 1532 (D.C. Cir. 1985). It is not clear how the
D.C. Circuit would assign the burden in a case such as this one where
only the substance of the IEP is challenged.

   Because the decisions assigning the burden of proof at the adminis-
trative hearing to the school system offer little or no analysis, they do
not persuade us to depart from the normal rule of allocating the bur-
                          WEAST v. SCHAFFER                            7
den to the party seeking relief. We will therefore proceed to consider
the main arguments advanced by Brian’s parents for assigning the
burden to the school system.

                                   B.

   The parents argue that because the IDEA is a remedial statute that
places the obligation on a school system to provide a free appropriate
public education for disabled children, the school system should bear
the burden of proving that its IEP meets that obligation. This brings
to mind other remedial federal statutes such as Title VII of the Civil
Rights Act of 1964, the Americans with Disabilities Act, and the Age
Discrimination in Employment Act. These statutes impose on
employers (or others) the obligation not to discriminate against an
individual because of characteristics such as race, sex, disability, or
age. Like the IDEA, these statutes are silent about burden of proof,
yet we assign it to the plaintiff who seeks the statutory protection or
benefit; the burden is not assigned to the party with the statutory obli-
gation. See, e.g., Newman v. GHS Osteopathic, Inc., 60 F.3d 153, 157
(3d Cir. 1995). We do not believe, then, that a school system should
have the burden of proof in an IEP challenge just because it has the
statutory obligation to propose an adequate educational program for
the disabled child. A "favored group," in other words, is not relieved
of the burden of proof "merely because a statute confers substantive
rights on [it]." Clyde K., 35 F.3d at 1399.

                                   C.

   Because school systems have a natural advantage in IEP disputes
by reason of their greater expertise and resources, they should have
the burden of proof, according to Brian’s parents. Specifically, the
argument goes, the school system understands the requirements of the
IDEA, has greater educational expertise than parents, and has better
access to information and witnesses. See Oberti, 995 F.2d at 1219.
This persuaded the district court in Brian’s case to assign the burden
at the administrative level to the school system (the MCPS). See
Schaffer II, 240 F. Supp. 2d at 403-04 (citing Lascari v. Bd. of Educ.,
560 A.2d 1180, 1186 (N.J. 1989)).

   We do not automatically assign the burden of proof to the side with
the bigger guns. And "[v]ery often [a party] must plead and prove
8                         WEAST v. SCHAFFER
matters as to which his adversary has superior access to the proof."
McCormick on Evidence § 337. In IDEA administrative disputes Con-
gress has taken steps, short of allocating the burden of proof to school
systems, that level the playing field. As the Supreme Court observed,
Congress recognized "that in any [IDEA] disputes the school officials
would have a natural advantage," so it therefore "incorporated an
elaborate set of what it labeled ‘procedural safeguards’ to insure the
full participation of the parents and proper resolution of substantive
disagreements." School Comm. of Burlington v. Dep’t of Educ. of
Mass., 471 U.S. 359, 368 (1985).

   These procedural safeguards and other provisions in the IDEA are
all designed to inform parents and to involve them in the development
of the IEP for their child. The Act involves parents at all stages, mak-
ing them members of their child’s IEP team and enabling them to
advocate for their position if a dispute arises. 20 U.S.C. § 1414(d).
Parents have the right to examine all records, materials, assessments,
and other information the school system uses to develop an IEP, and
they have the right to participate fully in meetings relating to the IEP
and the evaluation of their child. Id. § 1415(b). Parents have the right
to request an independent evaluation of their child at school system
expense. Id.; 34 C.F.R. § 300.502(b)(2)(ii). The school system must
give parents written notice of their rights at key intervals: when their
child is initially referred for evaluation, when they are notified about
each IEP meeting, when their child is reevaluated, and when they reg-
ister any complaint about the school system’s effort to provide a free
appropriate public education for their child. 20 U.S.C. § 1415(d)(1).
The notice of the parents’ rights must be written in "an easily under-
standable manner." Id. § 1415(d)(2). Finally, the statute authorizes
"parent training and information centers," which, as the name sug-
gests, are centers designed to "meet the training and information
needs of parents of children with disabilities" and to "assist parents
to understand the availability of, and how to effectively use" the pro-
tections of the IDEA. Id. § 1482.

   If the parents request an administrative hearing, additional services
and protections become available. Voluntary mediation conducted by
an impartial mediator, with the school system bearing the costs, must
be made available before the case proceeds to hearing. 34 C.F.R.
§ 300.506. The school system must also advise the parents "of any
                          WEAST v. SCHAFFER                            9
free or low-cost legal and other relevant services available in the
area." Id. § 300.507(a)(3). There are also discovery requirements that
give parents advance notice of the evidence they will encounter at a
hearing. A party may not introduce evidence that is not disclosed at
least five business days before the hearing. Id. § 300.509(a)(3). Like-
wise, at least five business days prior to the hearing, "each party shall
disclose to all other parties all evaluations completed by that date and
recommendations based on the offering party’s evaluations that the
party intends to use at the hearing." 20 U.S.C. § 1415(f)(2)(A).
Finally, if the parents prevail in their challenge, they may be awarded
reasonable legal fees. Id. § 1415(i)(3)(B).

   The IDEA and its implementing regulations require an open pro-
cess that makes relevant information and special services, such as the
independent evaluation, available to parents. By the time the IEP is
finally developed, parents have been provided with substantial infor-
mation about their child’s educational situation and prospects. They
have continuing access to information and anticipated evidence once
a hearing is requested. In sum, Congress has taken into account the
natural advantage a school system might have in the IEP process,
including the administrative hearing, by providing the explicit protec-
tions we have outlined. As a result, the school system has no unfair
information or resource advantage that compels us to reassign the bur-
den of proof to the school system when the parents initiate the pro-
ceeding.

                                   D.

   Although Brian’s parents recognize that the IDEA is silent as to
burden of proof, they argue that "[i]nherent in the [Act] is the princi-
ple that school systems bear the burden of proof." Appellees’ Br. at
17. The parents refer to two cases, Mills v. Board of Education of
Washington, D.C., 348 F. Supp. 866 (D.D.C. 1972), and Pennsylvania
Association for Retarded Children v. Commonwealth (PARC), 343 F.
Supp. 279 (E.D. Pa. 1972), that Congress apparently used as the blue-
print for the Education of the Handicapped Act, now the IDEA. See
Rowley, 458 U.S. at 194 ("The fact that both PARC and Mills are dis-
cussed at length in the Legislative Reports suggests that the principles
which they established are the principles which, to a significant
extent, guided the drafters of the Act.").
10                        WEAST v. SCHAFFER
   The Supreme Court in Rowley pointed out the similarities between
PARC and Mills and what is now the IDEA. Rowley, 458 U.S. at 194
n.16. PARC, like the Act, "required the State to identify, locate, and
evaluate [disabled] children, to create for each child an individual
educational program, and to hold a hearing on any change in educa-
tion assignment." Id. at 194 n.16 (internal quotation marks and cita-
tions omitted). Mills, for its part, provided parents with the various
procedural safeguards that appear in the Act, such as their rights to
inspect records, to have an independent evaluation of the child, "to
object to the IEP and receive a hearing before an independent hearing
officer, to be represented by counsel at the hearing, and to have the
right to confront and cross-examine adverse witnesses." Id. (citation
omitted).

   Mills placed the burden of proof at the administrative hearing on
the school system. 348 F. Supp. at 881. In PARC after the school sys-
tem satisfied its burden of production by introducing its placement
report, the burden to introduce evidence shifted to the parents. It
appears, however, that the ultimate burden of proof rested with the
school system. PARC, 343 F. Supp. at 305. The parents argue that
because the Act specifically incorporated a number of other major
principles from PARC and Mills, "[i]t stands to reason that Congress
intended for the IDEA to echo the[ir] assignments of burden of
proof." Appellees’ Br. at 19. The circumstances compel the opposite
conclusion, we believe. Congress took a number of the procedural
safeguards from PARC and Mills and wrote them directly into the
Act. Congress thus knows how to borrow ideas and incorporate them
into legislation. For the Act here, it borrowed some ideas and specifi-
cally ignored others. We cannot conclude from this that Congress
intended to adopt the ideas that it failed to write into the text of the
statute. For whatever reason Congress did not assign the burden of
proof, and Congress has not signaled by its silence that we should
depart from the general rule.

                                  E.

  The dissent argues that in light of the affirmative (IDEA-mandated)
obligation a school system has to provide an appropriate educational
program for each disabled child, "the most reasonable, though by no
means irrebuttable presumption, is that the school [system] should
                          WEAST v. SCHAFFER                           11
bear the burden of proof in the due process hearings." Post at 14. As
we have already pointed out, however, the general rule is quite the
opposite: a party who initiates a proceeding to obtain relief based on
a statutory obligation bears the burden of proof. McCormick on Evi-
dence § 337. The general rule is sometimes stated in a slightly differ-
ent way that is instructive here: the burden of proof is on the party
who should lose if no evidence is offered by either side. 9 J. Wig-
more, Wigmore on Evidence § 2485 (1981). We believe that when
parents challenge the adequacy of an IEP, they should lose if no evi-
dence is presented. To say that the school system should lose is to say
that every challenged IEP is presumptively inadequate. See id. A pre-
sumption of inadequacy would go against a basic policy of the IDEA,
which is to rely upon the professional expertise of local educators.
Congress enacted the IDEA with the clear intention of deferring to
local school authorities for the development of educational plans for
disabled children. See Rowley, 458 U.S. at 207-08; Hartman v. Lou-
doun County Bd. of Educ., 118 F.3d 996, 1000-01 (4th Cir. 1997).
And while Congress "[e]ntrust[s] a [disabled] child’s education to
state and local agencies" under the IDEA, it "protect[s] individual
children by providing for parental involvement [and for certain assis-
tance to parents] . . . in the formulation of [a] child’s [IEP]." Rowley,
458 U.S. at 208. Under this statutory arrangement, it is reasonable to
require parents attacking the terms of an IEP to bear the burden of
showing why it is deficient.

   The dissent would assign the burden of proof to the school system
because of its "distinct, inherent advantage" over parents when it
comes to proposing and evaluating educational plans for disabled
children. Post at 14. Parents, the dissent says, "lack the comprehen-
sive understanding . . . [and] means to assess the likely benefit of
available alternatives." Id. Again, when Congress designed and
passed the IDEA, it was keenly aware that school systems have pro-
fessional expertise and that parents do not. It was for this very reason
that Congress imposed statutory safeguards to assist parents in
becoming substantively informed. If Congress considered burden of
proof at all, it no doubt recognized that allocating the burden to
school systems is not the kind of help parents really need in challeng-
ing IEPs. For regardless of which side has the burden of proof in an
administrative hearing, parents will have to offer expert testimony to
show that the proposed IEP is inadequate. Shifting the burden of
12                        WEAST v. SCHAFFER
proof, in other words, will not enable parents by themselves to mount
a serious, substantive challenge to an IEP. Congress recognized that
parents need professional assistance, and the IDEA therefore allows
parents who prevail in due process hearings to recover their fees for
hiring lawyers. 20 U.S.C. § 1415(i)(3). If experience shows that par-
ents do not have sufficient access to substantive expertise under the
current statutory scheme, Congress should be called upon to take fur-
ther remedial steps. As far as procedure is concerned, however, we
have no convincing reason to depart from the traditional burden of
proof in IDEA due process hearings.

                                  III.

   In sum, the IDEA does not allocate the burden of proof, and we see
no reason to depart from the general rule that a party initiating a pro-
ceeding bears that burden. Congress was aware that school systems
might have an advantage in administrative proceedings brought by
parents to challenge IEPs. To avoid this problem, Congress provided
a number of procedural safeguards for parents, but assignment of the
burden of proof to school systems was not one of them. Because Con-
gress took care in specifying specific procedural protections necessary
to implement the policy goals of the Act, we decline to go further, at
least insofar as the burden of proof is concerned. Accordingly, we
hold that parents who challenge an IEP have the burden of proof in
the administrative hearing. We reverse the judgment of the district
court and remand for further proceedings consistent with this opinion.

                                         REVERSED AND REMANDED

LUTTIG, Circuit Judge, dissenting:

   I do not agree with the majority’s holding that the burden of proof
in due process hearings conducted pursuant to the Individuals with
Disabilities Education Act (IDEA), 20 U.S.C. § 1415(f)-(g), should be
borne by a disabled child’s parents, rather than by the school district
that is charged with providing that child a "free appropriate public
education," 20 U.S.C. § 1412(a)(1)(A). Not only does the school dis-
trict have the affirmative, statutory obligation under the IDEA to
develop a suitable education program (IEP) for every disabled child,
the school district is also in a far better position to demonstrate that
                          WEAST v. SCHAFFER                           13
it has fulfilled this obligation than the disabled student’s parents are
in to show that the school district has failed to do so. Accordingly, I
would hold that the school district — and not the comparatively unin-
formed parents of the disabled child — must bear the burden of prov-
ing that the disabled child has been provided with the statutorily-
required appropriate educational resources.

   The majority concludes otherwise based on the "normal rule of
allocating the burden to the party seeking relief." Ante at 6-7. As even
it admits, however, this so-called "rule" is, in actuality, merely a pre-
sumption and not a very strong one at that. Relying on McCormick
on Evidence, the majority explains that, "[a]lthough ‘the natural ten-
dency is to place the burden[ ] on the party desiring change’ or seek-
ing relief, other factors such as policy considerations, convenience,
and fairness may allow for different allocation of the burden of
proof." Ante at 5 (quoting McCormick on Evidence § 337).

   Each of these "other factors" — policy, convenience and fairness
— weigh against the assignment of the burden of proof to the parents
in this case. To begin with, the policies behind the IDEA indisputably
argue in favor of placing the burden of proof with the school district.
As the Supreme Court has explained,

    [t]he Act represents an ambitious federal effort to promote
    the education of handicapped children, and was passed in
    response to Congress’ perception that a majority of handi-
    capped children in the United States "were either totally
    excluded from schools or [were] sitting idly in regular class-
    rooms awaiting the time when they were old enough to
    ‘drop out.’"

Bd. of Educ. of Hendrick Hudson Central Sch. Dist. v. Rowley, 458
U.S. 176, 179 (1983) (brackets in original). In the service of this
effort, the IDEA obligates school districts to provide every disabled
child with an educational program that is reasonably responsive to
that child’s disability. Id. at 188-89. The IDEA also requires school
districts to involve the parents of the disabled child in the formulation
of educational plans made in response to the child’s particular disabil-
ity and to receive and consider the suggestions of parents in the devel-
opment of those plans. In light of these affirmative obligations, the
14                         WEAST v. SCHAFFER
most reasonable, though by no means irrebuttable, presumption is that
the school district should bear the burden of proof in the due process
hearings required by the Act as well.

   The majority suggests otherwise by comparing the obligation of
school districts under the IDEA to that of defendants in civil rights
claims under Title VII of the Civil Rights Act of 1964, the Americans
with Disabilities Act, and the Age Discrimination Act. See ante at 7.
Because defendants in civil rights claims have a statutory obligation
to refrain from discrimination but do not bear the burden of proof in
claims against them, the majority reasons that the school districts’
obligation under IDEA should not compel it to bear the burden of
proof either. Ante at 7. The analogy is not apt. Unlike the civil rights
statutes referenced by the majority, the IDEA does not merely seek
to remedy discrimination against disabled students, it imposes an
affirmative obligation on the nation’s school systems to provide dis-
abled students with an enhanced level of attention and services. See
Rowley, 458 U.S. at 189 (explaining that "the face of the statute
evinces a congressional intent . . . to require the States to adopt proce-
dures which would result in individualized consideration of and
instruction for each [disabled] child") (emphasis in original). And it
is this affirmative obligation (rather than the Act’s purpose of reme-
dying discrimination) that weighs most heavily in favor of placing the
burden of proof in due process hearings on the school district.

   Turning next to the interests of convenience and fairness, it is
apparent that the school district possesses a distinct, inherent advan-
tage over the parents of disabled children in assessing the feasibility
and the likely benefit of alternative educational arrangements. While
individual parents may have insight into the educational development
of their own children, they lack the comprehensive understanding of
the educational alternatives available to disabled children in the
school district that officials of the school system possess. And, even
more importantly, the parents lack the means to assess the likely ben-
efit of available alternatives. Parents simply do not have, and cannot
easily acquire, the cumulative, institutional knowledge gained by rep-
resentatives of the school district from their experiences with other,
similarly-disabled children.

   The majority recites, at length, the services and protections pro-
vided to parents under the IDEA, but the mere recitation of these pro-
                           WEAST v. SCHAFFER                             15
visions does nothing more than highlight Congress’ awareness that
parents of disabled children operate at a disadvantage when they seek
to contest the individualized educational placement developed by
their school district. It certainly does not show that Congress has "lev-
eled the playing field" between the school district and the parents.
These procedural protections may invest parents with a basis to
understand the characteristics of their child’s disability and may even
provide some understanding of the relative benefits and drawbacks of
the educational plan proposed by the school district. But, even in the
rosiest of scenarios, the provision of such remedial protections and
services would not begin to impart to the average parent the level of
expertise or knowledge that the school district possesses as a matter
of course.

   The majority may well be correct that the assignment of the burden
of proof to the party with the "bigger guns" is not "automatic." How-
ever, with only a faint, general presumption in favor of placing the
burden of proof on the complainant on the other side of the equation,
the fact that the party with the "bigger guns" also has better access to
information, greater expertise, and an affirmative obligation to pro-
vide the contested services can hardly be ignored. Indeed, in my judg-
ment, the collective weight of each of these considerations is
dispositive.

   I fear that, in reaching the contrary conclusion, the majority has
been unduly influenced by the fact that the parents of the disabled stu-
dent in this case have proven to be knowledgeable about the educa-
tional resources available to their son and sophisticated (if yet
unsuccessful) in their pursuit of these resources. If so, it is regrettable.
These parents are not typical, and any choice regarding the burden of
proof should not be made in the belief that they are. For the vast
majority of parents whose children require the benefits and protec-
tions provided in the IDEA, the specialized language and technical
educational analysis with which they must familiarize themselves as
a consequence of their child’s disability will likely be obscure, if not
bewildering. By the same token, most of these parents will find the
educational program proposed by the school district resistant to chal-
lenge: the school district will have better information about the
resources available to it, as well as the benefit of its experience with
other disabled children. With the full mix of parents in mind, I believe
16                             WEAST v. SCHAFFER
that the proper course is to assign the burden of proof in due process
hearings to the school district.

     I respectfully dissent.
