SCHAFFER, a minor, by his parents and next friends, SCHAFFER et vir, et al. v. WEAST, SUPERIN- TENDENT, MONTGOMERY COUNTY PUBLIC SCHOOLS, et al.

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49 OCTOBER TERM, 2005
Syllabus
SCHAFFER, a minor, by his parents and next friends,
SCHAFFER et vir, et al. v. WEAST, SUPERIN-
TENDENT, MONTGOMERY COUNTY
PUBLIC SCHOOLS, et al.
certiorari to the united states court of appeals for
the fourth circuit
No. 04–698. Argued October 5, 2005—Decided November 14, 2005
To ensure disabled children a “free appropriate public education,” 20
U. S. C. § 1400(d)(1)(A) (2000 ed., Supp. V), the Individuals with Disabili
ties Education Act (IDEA or Act) requires school districts to create an
“individualized education program” (IEP) for each disabled child,
§ 1414(d), and authorizes parents challenging their child’s IEP to request
an “impartial due process hearing,” § 1415(f), but does not specify which
party bears the burden of persuasion at that hearing. After an IDEA
hearing initiated by petitioners, the Administrative Law Judge held that
they bore the burden of persuasion and ruled in favor of respondents.
The District Court reversed, concluding that the burden of persuasion is
on the school district. The Fourth Circuit reversed the District Court,
concluding that petitioners had offered no persuasive reason to depart
from the normal rule of allocating the burden to the party seeking relief.
Held: The burden of persuasion in an administrative hearing challeng
ing an IEP is properly placed upon the party seeking relief, whether
that is the disabled child or the school district. Pp. 56–62.
(a) Because IDEA is silent on the allocation of the burden of persua
sion, this Court begins with the ordinary default rule that plaintiffs bear
the burden regarding the essential aspects of their claims. Although
the ordinary rule admits of exceptions, decisions that place the entire
burden of persuasion on the opposing party at the outset of a proceed
ing—as petitioners urge the Court to do here—are extremely rare.
Absent some reason to believe that Congress intended otherwise, the
Court will conclude that the burden of persuasion lies where it usually
falls, upon the party seeking relief. Pp. 56–58.
(b) Petitioners’ arguments for departing from the ordinary default
rule are rejected. Petitioners’ assertion that putting the burden of per
suasion on school districts will help ensure that children receive a free
appropriate public education is unavailing. Assigning the burden to
schools might encourage them to put more resources into preparing
IEPs and presenting their evidence, but IDEA is silent about whether

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50 SCHAFFER v. WEAST
Syllabus
marginal dollars should be allocated to litigation and administrative ex
penditures or to educational services. There is reason to believe that
a great deal is already spent on IDEA administration, and Congress has
repeatedly amended the Act to reduce its administrative and litigation
related costs. The Act also does not support petitioners’ conclusion, in
effect, that every IEP should be assumed to be invalid until the school
district demonstrates that it is not. Petitioners’ most plausible argu
ment—that ordinary fairness requires that a litigant not have the bur
den of establishing facts peculiarly within the knowledge of his adver
sary, United States v. New York, N. H. & H. R. Co., 355 U. S. 253, 256,
n. 5—fails because IDEA gives parents a number of procedural pro
tections that ensure that they are not left without a realistic chance
to access evidence or without an expert to match the government.
Pp. 58–61.
377 F. 3d 449, affirmed.
O’Connor, J., delivered the opinion of the Court, in which Stevens,
Scalia, Kennedy, Souter, and Thomas, JJ., joined. Stevens, J., filed
a concurring opinion, post, p. 62. Ginsburg, J., post, p. 63, and Breyer,
J., post, p. 67, filed dissenting opinions. Roberts, C. J., took no part in
the consideration or decision of the case.
William H. Hurd argued the cause for petitioners. With
him on the briefs were Siran S. Faulders, Michael J. Eig,
and Haylie M. Iseman.
Gregory G. Garre argued the cause for respondents. With
him on the brief were Maree F. Sneed, Jonathan S. Frank
lin, Zvi Greismann, Judith S. Bresler, Eric C. Brousaides,
and Jeffrey A. Krew.
David B. Salmons argued the cause for the United States
as amicus curiae urging affirmance. With him on the brief
were Solicitor General Clement, Assistant Attorney Gen
eral Keisler, Acting Assistant Attorney General Schlozman,
Marleigh D. Dover, Stephanie R. Marcus, and Kent D.
Talbert.*
*Briefs of amici curiae urging reversal were filed for the Common
wealth of Virginia et al. by Judith Williams Jagdmann, Attorney General
of Virginia, William E. Thro, State Solicitor General, Eric A. Gregory
and Joel C. Hoppe, Associate State Solicitors General, and Maureen Riley
Matsen, Deputy Attorney General, and by the Attorneys General for their

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51 Cite as: 546 U. S. 49 (2005)
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Justice O’Connor delivered the opinion of the Court.
The Individuals with Disabilities Education Act (IDEA or
Act), 84 Stat. 175, as amended, 20 U. S. C. § 1400 et seq. (2000
ed. and Supp. V), is a Spending Clause statute that seeks to
ensure that “all children with disabilities have available to
them a free appropriate public education,” § 1400(d)(1)(A)
(2000 ed., Supp. V). Under IDEA, school districts must cre
ate an “individualized education program” (IEP) for each dis
abled child. § 1414(d). If parents believe their child’s IEP
is inappropriate, they may request an “impartial due process
hearing.” § 1415(f). The Act is silent, however, as to which
party bears the burden of persuasion at such a hearing. We
hold that the burden lies, as it typically does, on the party
seeking relief.
I
A
Congress first passed IDEA as part of the Education of
the Handicapped Act in 1970, 84 Stat. 175, and amended it
respective States as follows: Richard Blumenthal of Connecticut, Lisa
Madigan of Illinois, Phill Kline of Kansas, Mike Hatch of Minnesota,
Brian Sandoval of Nevada, Patricia Lynch of Rhode Island, Rob Mc-
Kenna of Washington, and Peggy A. Lautenschlager of Wisconsin; for The
ARC of the United States et al. by Drew S. Days III, Seth M. Galanter,
and Linda A. Arnsbarger; for the Council of Parent Attorneys and Advo
cates et al. by Ankur J. Goel and M. Miller Baker; and for Various Autism
Organizations by Gregory A. Castanias, Thomas F. Urban II, and Beth
T. Sigall.
Briefs of amici curiae urging affirmance were filed for the State of
Hawaii et al. by Mark J. Bennett, Attorney General of Hawaii, and Girard
D. Lau, Deputy Attorney General, and by the Attorneys General for their
respective jurisdictions as follows: David W. Ma´ rquez of Alaska, Douglas
B. Moylan of Guam, and W. A. Drew Edmondson of Oklahoma; for the
Council of the Great City Schools et al. by Julie Wright Halbert and Pam
ela Harris; for the National School Boards Association by Leslie Robert
Stellman, Rochelle S. Eisenberg, Lisa Y. Settles, Julie Underwood, Naomi
Gittins, and Thomas Hutton; and for the Virginia School Boards Associa
tion et al. by Joseph Thomas Tokarz II and Kathleen Shepherd Mehfoud.

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52 SCHAFFER v. WEAST
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substantially in the Education for All Handicapped Children
Act of 1975, 89 Stat. 773. At the time the majority of dis
abled children in America were “either totally excluded from
schools or sitting idly in regular classrooms awaiting the
time when they were old enough to ‘drop out,’ ” H. R. Rep.
No. 94–332, p. 2 (1975). IDEA was intended to reverse this
history of neglect. As of 2003, the Act governed the pro
vision of special education services to nearly 7 million chil
dren across the country. See Dept. of Education, Office of
Special Education Programs, Data Analysis System, http://
www.ideadata.org/tables27th/ar_ aa9.htm (as visited Nov. 9,
2005, and available in Clerk of Court’s case file).
IDEA is “frequently described as a model of ‘cooperative
federalism.’ ” Little Rock School Dist. v. Mauney, 183 F. 3d
816, 830 (CA8 1999). It “leaves to the States the primary
responsibility for developing and executing educational pro
grams for handicapped children, [but] imposes significant re
quirements to be followed in the discharge of that responsi
bility.” Board of Ed. of Hendrick Hudson Central School
Dist., Westchester Cty. v. Rowley, 458 U. S. 176, 183 (1982).
For example, the Act mandates cooperation and reporting
between state and federal educational authorities. Partici
pating States must certify to the Secretary of Education that
they have “policies and procedures” that will effectively
meet the Act’s conditions. 20 U. S. C. § 1412(a). (Unless
otherwise noted, all citations to the Act are to the pre-2004
version of the statute because this is the version that was in
effect during the proceedings below. We note, however,
that nothing in the recent 2004 amendments, 118 Stat. 2674,
appears to materially affect the rule announced here.)
State educational agencies, in turn, must ensure that local
schools and teachers are meeting the State’s educational
standards. §§ 1412(a)(11), 1412(a)(15)(A). Local educa
tional agencies (school boards or other administrative bodies)
can receive IDEA funds only if they certify to a state educa

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tional agency that they are acting in accordance with the
State’s policies and procedures. § 1413(a)(1).
The core of the statute, however, is the cooperative proc
ess that it establishes between parents and schools. Row
ley, supra, at 205–206 (“Congress placed every bit as much
emphasis upon compliance with procedures giving parents
and guardians a large measure of participation at every stage
of the administrative process, . . . as it did upon the measure
ment of the resulting IEP against a substantive standard”).
The central vehicle for this collaboration is the IEP proc
ess. State educational authorities must identify and evalu
ate disabled children, §§ 1414(a)–(c), develop an IEP for each
one, § 1414(d)(2), and review every IEP at least once a
year, § 1414(d)(4). Each IEP must include an assessment
of the child’s current educational performance, must artic
ulate measurable educational goals, and must specify the na
ture of the special services that the school will provide.
§ 1414(d)(1)(A).
Parents and guardians play a significant role in the IEP
process. They must be informed about and consent to eval
uations of their child under the Act. § 1414(c)(3). Parents
are included as members of “IEP teams.” § 1414(d)(1)(B).
They have the right to examine any records relating to their
child, and to obtain an “independent educational evaluation
of the[ir] child.” § 1415(b)(1). They must be given written
prior notice of any changes in an IEP, § 1415(b)(3), and be
notified in writing of the procedural safeguards available to
them under the Act, § 1415(d)(1). If parents believe that an
IEP is not appropriate, they may seek an administrative “im
partial due process hearing.” § 1415(f). School districts
may also seek such hearings, as Congress clarified in the
2004 amendments. See S. Rep. No. 108–185, p. 37 (2003).
They may do so, for example, if they wish to change an exist
ing IEP but the parents do not consent, or if parents refuse
to allow their child to be evaluated. As a practical matter,

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54 SCHAFFER v. WEAST
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it appears that most hearing requests come from parents
rather than schools. Brief for Petitioners 7.
Although state authorities have limited discretion to de
termine who conducts the hearings, § 1415(f)(1), and respon
sibility generally for establishing fair hearing procedures,
§ 1415(a), Congress has chosen to legislate the central com
ponents of due process hearings. It has imposed minimal
pleading standards, requiring parties to file complaints set
ting forth “a description of the nature of the problem,”
§ 1415(b)(7)(B)(ii), and “a proposed resolution of the problem
to the extent known and available . . . at the time,”
§ 1415(b)(7)(B)(iii). At the hearing, all parties may be ac
companied by counsel, and may “present evidence and con
front, cross-examine, and compel the attendance of wit
nesses. ” §§ 1415(h)(1)–(2). Af ter the hearing, any
aggrieved party may bring a civil action in state or federal
court. § 1415(i)(2). Prevailing parents may also recover at
torney’s fees. § 1415(i)(3)(B). Congress has never explic
itly stated, however, which party should bear the burden of
proof at IDEA hearings.
B
This case concerns the educational services that were due,
under IDEA, to petitioner Brian Schaffer. Brian suffers
from learning disabilities and speech-language impairments.
From prekindergarten through seventh grade he attended a
private school and struggled academically. In 1997, school
officials informed Brian’s mother that he needed a school that
could better accommodate his needs. Brian’s parents con
tacted respondent Montgomery County Public Schools Sys
tem (MCPS) seeking a placement for him for the following
school year.
MCPS evaluated Brian and convened an IEP team. The
committee generated an initial IEP offering Brian a place in
either of two MCPS middle schools. Brian’s parents were
not satisfied with the arrangement, believing that Brian

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55 Cite as: 546 U. S. 49 (2005)
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needed smaller classes and more intensive services. The
Schaffers thus enrolled Brian in another private school, and
initiated a due process hearing challenging the IEP and
seeking compensation for the cost of Brian’s subsequent pri
vate education.
In Maryland, IEP hearings are conducted by administra
tive law judges (ALJs). See Md. Educ. Code Ann. § 8–413(c)
(Lexis 2004). After a 3-day hearing, the ALJ deemed the
evidence close, held that the parents bore the burden of per
suasion, and ruled in favor of the school district. The par
ents brought a civil action challenging the result. The
United States District Court for the District of Maryland
reversed and remanded, after concluding that the burden of
persuasion is on the school district. Brian S. v. Vance, 86
F. Supp. 2d 538 (2000). Around the same time, MCPS of
fered Brian a placement in a high school with a special learn
ing center. Brian’s parents accepted, and Brian was edu
cated in that program until he graduated from high school.
The suit remained alive, however, because the parents
sought compensation for the private school tuition and re
lated expenses.
Respondents appealed to the United States Court of Ap
peals for the Fourth Circuit. While the appeal was pending,
the ALJ reconsidered the case, deemed the evidence truly in
“equipoise,” and ruled in favor of the parents. The Fourth
Circuit vacated and remanded the appeal so that it could
consider the burden of proof issue along with the merits on
a later appeal. The District Court reaffirmed its ruling that
the school district has the burden of proof. 240 F. Supp. 2d
396 (Md. 2002). On appeal, a divided panel of the Fourth
Circuit reversed. Judge Michael, writing for the majority,
concluded that petitioners offered no persuasive reason to
“depart from the normal rule of allocating the burden to the
party seeking relief.” 377 F. 3d 449, 453 (2004). We
granted certiorari, 543 U. S. 1145 (2005), to resolve the fol

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56 SCHAFFER v. WEAST
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lowing question: At an administrative hearing assessing the
appropriateness of an IEP, which party bears the burden
of persuasion?
II
A
The term “burden of proof ” is one of the “slipperiest mem
ber[s] of the family of legal terms.” 2 J. Strong, McCormick
on Evidence § 342, p. 433 (5th ed. 1999) (hereinafter McCor
mick). Part of the confusion surrounding the term arises
from the fact that historically, the concept encompassed two
distinct burdens: the “burden of persuasion,” i. e., which
party loses if the evidence is closely balanced, and the “bur
den of production,” i. e., which party bears the obligation to
come forward with the evidence at different points in the
proceeding. Director, Office of Workers’ Compensation
Programs v. Greenwich Collieries, 512 U. S. 267, 272 (1994).
We note at the outset that this case concerns only the burden
of persuasion, as the parties agree, Brief for Respondents 14;
Reply Brief for Petitioners 15, and when we speak of burden
of proof in this opinion, it is this to which we refer.
When we are determining the burden of proof under a
statutory cause of action, the touchstone of our inquiry is, of
course, the statute. The plain text of IDEA is silent on the
allocation of the burden of persuasion. We therefore begin
with the ordinary default rule that plaintiffs bear the risk of
failing to prove their claims. McCormick § 337, at 412 (“The
burdens of pleading and proof with regard to most facts have
been and should be assigned to the plaintiff who generally
seeks to change the present state of affairs and who there
fore naturally should be expected to bear the risk of failure
of proof or persuasion”); C. Mueller & L. Kirkpatrick, Evi
dence § 3.1, p. 104 (3d ed. 2003) (“Perhaps the broadest and
most accepted idea is that the person who seeks court action
should justify the request, which means that the plaintiffs
bear the burdens on the elements in their claims”).

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Thus, we have usually assumed without comment that
plaintiffs bear the burden of persuasion regarding the essen
tial aspects of their claims. For example, Title VII of the
Civil Rights Act of 1964, 42 U. S. C. § 2000e et seq., does not
directly state that plaintiffs bear the “ultimate” burden of
persuasion, but we have so concluded. St. Mary’s Honor
Center v. Hicks, 509 U. S. 502, 511 (1993); id., at 531 (Souter,
J., dissenting). In numerous other areas, we have presumed
or held that the default rule applies. See, e. g., Lujan v. De
fenders of Wildlife, 504 U. S. 555, 561 (1992) (standing);
Cleveland v. Policy Management Systems Corp., 526 U. S.
795, 806 (1999) (Americans with Disabilities Act); Hunt v.
Cromartie, 526 U. S. 541, 553 (1999) (equal protection);
Wharf (Holdings) Ltd. v. United Int’l Holdings, Inc., 532
U. S. 588, 593 (2001) (securities fraud); Doran v. Salem Inn,
Inc., 422 U. S. 922, 931 (1975) (preliminary injunctions); Mt.
Healthy City Bd. of Ed. v. Doyle, 429 U. S. 274, 287 (1977)
(First Amendment). Congress also expressed its approval
of the general rule when it chose to apply it to administrative
proceedings under the Administrative Procedure Act, 5
U. S. C. § 556(d); see also Greenwich Collieries, supra, at 271.
The ordinary default rule, of course, admits of exceptions.
See McCormick § 337, at 412–415. For example, the burden
of persuasion as to certain elements of a plaintiff ’s claim may
be shifted to defendants, when such elements can fairly be
characterized as affirmative defenses or exemptions. See,
e. g., FTC v. Morton Salt Co., 334 U. S. 37, 44–45 (1948).
Under some circumstances this Court has even placed the
burden of persuasion over an entire claim on the defendant.
See Alaska Dept. of Environmental Conservation v. EPA,
540 U. S. 461, 494 (2004). But while the normal default rule
does not solve all cases, it certainly solves most of them.
Decisions that place the entire burden of persuasion on the
opposing party at the outset of a proceeding—as petitioners
urge us to do here—are extremely rare. Absent some rea
son to believe that Congress intended otherwise, therefore,

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58 SCHAFFER v. WEAST
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we will conclude that the burden of persuasion lies where it
usually falls, upon the party seeking relief.
B
Petitioners contend first that a close reading of IDEA’s
text compels a conclusion in their favor. They urge that we
should interpret the statutory words “due process” in light
of their constitutional meaning, and apply the balancing test
established by Mathews v. Eldridge, 424 U. S. 319 (1976).
Even assuming that the Act incorporates constitutional due
process doctrine, Eldridge is no help to petitioners because
“[o]utside the criminal law area, where special concerns at
tend, the locus of the burden of persuasion is normally
not an issue of federal constitutional moment.” Lavine v.
Milne, 424 U. S. 577, 585 (1976).
Petitioners next contend that we should take instruction
from the lower court opinions of Mills v. Board of Educa
tion, 348 F. Supp. 866 (DC 1972), and Pennsylvania Associa
tion for Retarded Children v. Pennsylvania, 334 F. Supp.
1257 (ED Pa. 1971) (hereinafter PARC). IDEA’s drafters
were admittedly guided “to a significant extent” by these
two landmark cases. Rowley, 458 U. S., at 194. As the
court below noted, however, the fact that Congress “took a
number of the procedural safeguards from PARC and Mills
and wrote them directly into the Act” does not allow us to
“conclude . . . that Congress intended to adopt the ideas that
it failed to write into the text of the statute.” 377 F. 3d,
at 455.
Petitioners also urge that putting the burden of persuasion
on school districts will further IDEA’s purposes because it
will help ensure that children receive a free appropriate pub
lic education. In truth, however, very few cases will be in
evidentiary equipoise. Assigning the burden of persuasion
to school districts might encourage schools to put more re
sources into preparing IEPs and presenting their evidence.
But IDEA is silent about whether marginal dollars should

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be allocated to litigation and administrative expenditures or
to educational services. Moreover, there is reason to be
lieve that a great deal is already spent on the administration
of the Act. Litigating a due process complaint is an expen
sive affair, costing schools approximately $8,000 to $12,000
per hearing. See Department of Education, J. Chambers,
J. Harr, & A. Dhanani, What Are We Spending on Procedural
Safeguards in Special Education 1999–2000, p. 8 (May 2003)
(prepared under contract by American Institutes for Re
search, Special Education Expenditure Project). Congress
has also repeatedly amended the Act in order to reduce its
administrative and litigation-related costs. For example, in
1997 Congress mandated that States offer mediation for
IDEA disputes. § 615(e) of IDEA, as added by § 101 of the
Individuals with Disabilities Education Act Amendments of
1997, Pub. L. 105–17, 111 Stat. 90, 20 U. S. C. § 1415(e). In
2004, Congress added a mandatory “resolution session”
prior to any due process hearing. § 615(f)(1)(B) of IDEA, as
added by § 101 of the Individuals with Disabilities Education
Improvement Act of 2004, Pub. L. 108–446, 118 Stat. 2720,
20 U. S. C. A. § 1415(f)(1)(B) (Supp. 2005). It also made new
findings that “[p]arents and schools should be given ex
panded opportunities to resolve their disagreements in posi
tive and constructive ways,” and that “[t]eachers, schools,
local educational agencies, and States should be relieved of
irrelevant and unnecessary paperwork burdens that do not
lead to improved educational outcomes.” §§ 1400(c)(8)–(9).
Petitioners in effect ask this Court to assume that every
IEP is invalid until the school district demonstrates that it
is not. The Act does not support this conclusion. IDEA
relies heavily upon the expertise of school districts to meet
its goals. It also includes a so-called “stay-put” provision,
which requires a child to remain in his or her “then-current
educational placement” during the pendency of an IDEA
hearing. § 1415( j). Congress could have required that a

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60 SCHAFFER v. WEAST
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child be given the educational placement that a parent re
quested during a dispute, but it did no such thing. Congress
appears to have presumed instead that, if the Act’s proce
dural requirements are respected, parents will prevail when
they have legitimate grievances. See Rowley, supra, at 206
(noting the “legislative conviction that adequate compliance
with the procedures prescribed would in most cases assure
much if not all of what Congress wished in the way of sub
stantive content in an IEP”).
Petitioners’ most plausible argument is that “[t]he ordi
nary rule, based on considerations of fairness, does not place
the burden upon a litigant of establishing facts peculiarly
within the knowledge of his adversary.” United States v.
New York, N. H. & H. R. Co., 355 U. S. 253, 256, n. 5 (1957);
see also Concrete Pipe & Products of Cal., Inc. v. Construc
tion Laborers Pension Trust for Southern Cal., 508 U. S.
602, 626 (1993). But this “rule is far from being universal,
and has many qualifications upon its application.” Green
leaf ’s Lessee v. Birth, 6 Pet. 302, 312 (1832); see also McCor
mick § 337, at 413 (“Very often one must plead and prove
matters as to which his adversary has superior access to the
proof ”). School districts have a “natural advantage” in in
formation and expertise, but Congress addressed this when
it obliged schools to safeguard the procedural rights of
parents and to share information with them. See School
Comm. of Burlington v. Department of Ed. of Mass., 471
U. S. 359, 368 (1985). As noted above, parents have the
right to review all records that the school possesses in rela
tion to their child. § 1415(b)(1). They also have the right
to an “independent educational evaluation of the[ir] child.”
Ibid. The regulations clarify this entitlement by providing
that a “parent has the right to an independent educational
evaluation at public expense if the parent disagrees with
an evaluation obtained by the public agency.” 34 CFR
§ 300.502(b)(1) (2005). IDEA thus ensures parents access to
an expert who can evaluate all the materials that the school

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must make available, and who can give an independent opin
ion. They are not left to challenge the government without
a realistic opportunity to access the necessary evidence,
or without an expert with the firepower to match the
opposition.
Additionally, in 2004, Congress added provisions requiring
school districts to answer the subject matter of a complaint
in writing, and to provide parents with the reasoning behind
the disputed action, details about the other options consid
ered and rejected by the IEP team, and a description of all
evaluations, reports, and other factors that the school used
in coming to its decision. § 615(c)(2)(B)(i)(I) of IDEA, as
added by § 101 of Pub. L. 108–446, 118 Stat. 2718, 20 U. S. C.
§ 1415(c)(2)(B)(i)(I) (2000 ed., Supp. V). Prior to a hearing,
the parties must disclose evaluations and recommendations
that they intend to rely upon. 20 U. S. C. § 1415(f)(2).
IDEA hearings are deliberately informal and intended to
give ALJs the flexibility that they need to ensure that each
side can fairly present its evidence. IDEA, in fact, requires
state authorities to organize hearings in a way that guaran
tees parents and children the procedural protections of
the Act. See § 1415(a). Finally, and perhaps most impor
tantly, parents may recover attorney’s fees if they prevail.
§ 1415(i)(3)(B). These protections ensure that the school
bears no unique informational advantage.
III
Finally, respondents and several States urge us to decide
that States may, if they wish, override the default rule and
put the burden always on the school district. Several States
have laws or regulations purporting to do so, at least under
some circumstances. See, e. g., Minn. Stat. § 125A.091, subd.
16 (2004); Ala. Admin. Code Rule 290–8–9–.08(8)(c)(6) (Supp.
2004); Alaska Admin. Code, tit. 4, § 52.550(e)(9) (2003); Del.
Code Ann., Tit. 14, § 3140 (1999). Because no such law or
regulation exists in Maryland, we need not decide this issue

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62 SCHAFFER v. WEAST
Stevens, J., concurring
today. Justice Breyer contends that the allocation of the
burden ought to be left entirely up to the States. But nei
ther party made this argument before this Court or the
courts below. We therefore decline to address it.
We hold no more than we must to resolve the case at hand:
The burden of proof in an administrative hearing challenging
an IEP is properly placed upon the party seeking relief. In
this case, that party is Brian, as represented by his parents.
But the rule applies with equal effect to school districts: If
they seek to challenge an IEP, they will in turn bear the
burden of persuasion before an ALJ. The judgment of the
United States Court of Appeals for the Fourth Circuit is,
therefore, affirmed.
It is so ordered.
The Chief Justice took no part in the consideration or
decision of this case.
Justice Stevens, concurring.
It is common ground that no single principle or rule solves
all cases by setting forth a general test for ascertaining the
incidence of proof burdens when both a statute and its legis
lative history are silent on the question. See Alaska Dept.
of Environmental Conservation v. EPA, 540 U. S. 461, 494,
n. 17 (2004); see also ante, at 57; post, at 63 (Ginsburg, J.,
dissenting). Accordingly, I do not understand the majority
to disagree with the proposition that a court, taking into ac
count “ ‘policy considerations, convenience, and fairness,’ ”
post, at 63 (Ginsburg, J., dissenting), could conclude that the
purpose of a statute is best effectuated by placing the burden
of persuasion on the defendant. Moreover, I agree with
much of what Justice Ginsburg has written about the spe
cial aspects of this statute. I have, however, decided to join
the Court’s disposition of this case, not only for the reasons
set forth in Justice O’Connor’s opinion, but also because I
believe that we should presume that public school officials

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63 Cite as: 546 U. S. 49 (2005)
Ginsburg, J., dissenting
are properly performing their difficult responsibilities under
this important statute.
Justice Ginsburg, dissenting.
When the legislature is silent on the burden of proof,
courts ordinarily allocate the burden to the party initiating
the proceeding and seeking relief. As the Fourth Circuit
recognized, however, “other factors,” prime among them
“policy considerations, convenience, and fairness,” may war
rant a different allocation. 377 F. 3d 449, 452 (2004) (citing
2 J. Strong, McCormick on Evidence § 337, p. 415 (5th ed.
1999) (allocation of proof burden “will depend upon the
weight . . . given to any one or more of several factors,
including: . . . special policy considerations[,] convenience,
[and] fairness”)); see also 9 J. Wigmore, Evidence § 2486,
p. 291 (J. Chadbourn rev. ed. 1981) (assigning proof burden
presents “a question of policy and fairness based on experi
ence in the different situations”). The Court has followed
the same counsel. See Alaska Dept. of Environmental
Conservation v. EPA, 540 U. S. 461, 494, n. 17 (2004) (“No
‘single principle or rule . . . solve[s] all cases and afford[s] a
general test for ascertaining the incidence’ of proof burdens.”
(quoting Wigmore, supra, § 2486, p. 288; emphasis deleted)).
For reasons well stated by Circuit Judge Luttig, dissenting
in the Court of Appeals, 377 F. 3d, at 456–459, I am per
suaded that “policy considerations, convenience, and fair
ness” call for assigning the burden of proof to the school
district in this case.
The Individuals with Disabilities Education Act (IDEA),
20 U. S. C. § 1400 et seq., was designed to overcome the pat
tern of disregard and neglect disabled children historically
encountered in seeking access to public education. See
§ 1400(c)(2) (congressional findings); S. Rep. No. 94–168, pp. 6,
8–9 (1975); Mills v. Board of Ed. of District of Columbia, 348
F. Supp. 866 (DC 1972); Pennsylvania Assn. for Retarded
Children v. Pennsylvania, 334 F. Supp. 1257 (ED Pa. 1971),

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64 SCHAFFER v. WEAST
Ginsburg, J., dissenting
and 343 F. Supp. 279 (ED Pa. 1972). Under typical civil
rights and social welfare legislation, the complaining party
must allege and prove discrimination or qualification for
statutory benefits. See, e. g., St. Mary’s Honor Center v.
Hicks, 509 U. S. 502, 511 (1993) (Title VII of the Civil Rights
Act of 1964, 42 U. S. C. § 2000e et seq.); Director, Office of
Workers’ Compensation Programs v. Greenwich Collieries,
512 U. S. 267, 270 (1994) (Black Lung Benefits Act, 30 U. S. C.
§ 901 et seq.). The IDEA is atypical in this respect: It casts
an affirmative, beneficiary-specific obligation on providers of
public education. School districts are charged with respon
sibility to offer to each disabled child an individualized edu
cation program (IEP) suitable to the child’s special needs.
20 U. S. C. §§ 1400(d)(1), 1412(a)(4), 1414(d). The proponent
of the IEP, it seems to me, is properly called upon to demon
strate its adequacy.
Familiar with the full range of education facilities in the
area, and informed by “ their experiences with other,
similarly-disabled children,” 377 F. 3d, at 458 (Luttig, J., dis
senting), “the school district is . . . in a far better position to
demonstrate that it has fulfilled [its statutory] obligation
than the disabled student’s parents are in to show that the
school district has failed to do so,” id., at 457. Accord Oberti
v. Board of Ed. of Borough of Clementon School Dist., 995
F. 2d 1204, 1219 (CA3 1993) (“In practical terms, the school
has an advantage when a dispute arises under the Act: the
school has better access to relevant information, greater con
trol over the potentially more persuasive witnesses (those
who have been directly involved with the child’s education),
and greater overall educational expertise than the par
ents.”); Lascari v. Board of Ed. of Ramapo Indian Hills
Regional High School Dist., 116 N. J. 30, 45–46, 560 A. 2d
1180, 1188–1189 (1989) (in view of the school district’s “better
access to relevant information,” parent’s obligation “should
be merely to place in issue the appropriateness of the IEP.
The school board should then bear the burden of proving that

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65 Cite as: 546 U. S. 49 (2005)
Ginsburg, J., dissenting
the IEP was appropriate. In reaching that result, we have
sought to implement the intent of the statutory and regula
tory schemes.”).1
Understandably, school districts striving to balance their
budgets, if “[l]eft to [their] own devices,” will favor educa
tional options that enable them to conserve resources. Deal
v. Hamilton County Bd. of Ed., 392 F. 3d 840, 864–865 (CA6
2004). Saddled with a proof burden in administrative “due
process” hearings, parents are likely to find a district
proposed IEP “resistant to challenge.” 377 F. 3d, at 459
(Luttig, J., dissenting). Placing the burden on the district
to show that its plan measures up to the statutorily man
dated “free appropriate public education, ” 20 U. S. C.
§ 1400(d)(1)(A), will strengthen school officials’ resolve to
choose a course genuinely tailored to the child’s individual
needs.2
The Court acknowledges that “[a]ssigning the burden of
persuasion to school districts might encourage schools to put
more resources into preparing IEPs.” Ante, at 58. Curi
ously, the Court next suggests that resources spent on devel
oping IEPs rank as “administrative expenditures” not as ex
penditures for “educational services.” Ante, at 59. Costs
entailed in the preparation of suitable IEPs, however, are
1 The Court suggests that the IDEA’s stay-put provision, 20 U. S. C.
§ 1415( j), supports placement of the burden of persuasion on the parents.
Ante, at 59–60. The stay-put provision, however, merely preserves the
status quo. It would work to the advantage of the child and the parents
when the school seeks to cut services offered under a previously estab
lished IEP. True, Congress did not require that “a child be given the
educational placement that a parent requested during a dispute.” Ibid.
But neither did Congress require that the IEP advanced by the school
district go into effect during the pendency of a dispute.
2 The Court observes that decisions placing “the entire burden of per
suasion on the opposing party at the outset of a proceeding . . . are ex
tremely rare.” Ante, at 57. In cases of this order, however, the persua
sion burden is indivisible. It must be borne entirely by one side or the
other: Either the school district must establish the adequacy of the IEP it
has proposed or the parents must demonstrate the plan’s inadequacy.

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66 SCHAFFER v. WEAST
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the very expenditures necessary to ensure each child cov
ered by the IDEA access to a free appropriate education.
These outlays surely relate to “educational services.” In
deed, a carefully designed IEP may ward off disputes pro
ductive of large administrative or litigation expenses.
This case is illustrative. Not until the District Court
ruled that the school district had the burden of persuasion
did the school design an IEP that met Brian Schaffer’s spe
cial educational needs. See ante, at 55; Tr. of Oral Arg.
21–22 (Counsel for the Schaffers observed that “Montgomery
County . . . gave [Brian] the kind of services he had sought
from the beginning . . . once [the school district was] given
the burden of proof.”). Had the school district, in the first
instance, offered Brian a public or private school placement
equivalent to the one the district ultimately provided, this
entire litigation and its attendant costs could have been
avoided.
Notably, nine States, as friends of the Court, have urged
that placement of the burden of persuasion on the school dis
trict best comports with the IDEA’s aim. See Brief for Com
monwealth of Virginia et al. as Amici Curiae. If allocating
the burden to school districts would saddle school systems
with inordinate costs, it is doubtful that these States would
have filed in favor of petitioners. Cf. Brief for United States
as Amicus Curiae Supporting Appellees Urging Affirmance
in No. 00–1471 (CA4), p. 12 (“Having to carry the burden of
proof regarding the adequacy of its proposed IEP . . . should
not substantially increase the workload for the school.”).3
One can demur to the Fourth Circuit’s observation that
courts “do not automatically assign the burden of proof to
the side with the bigger guns,” 377 F. 3d, at 453, for no such
reflexive action is at issue here. It bears emphasis that “the
vast majority of parents whose children require the benefits
and protections provided in the IDEA” lack “knowledg[e]
3 Before the Fourth Circuit, the United States filed in favor of the Schaf
fers; in this Court, the United States supported Montgomery County.

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Breyer, J., dissenting
about the educational resources available to their [child]” and
the “sophisticat[ion]” to mount an effective case against a
district-proposed IEP. Id., at 458 (Luttig, J., dissenting);
cf. 20 U. S. C. § 1400(c)(7)–(10). See generally Department of
Education, M. Wagner, C. Marder, J. Blackorby, & D. Car
doso, The Children We Serve: The Demographic Characteris
tics of Elementary and Middle School Students with Disabil
ities and their Households (Sept. 2002) (prepared under
contract by SRI International, Special Education Elemen
tary Longitudinal Study), http://www.seels.net/designdocs/
SEELS_Children_We_Serve_ Report.pdf (as visited Nov. 8,
2005, and available in Clerk of Court’s case file). In this
setting, “the party with the ‘bigger guns’ also has better
access to information, greater expertise, and an affirmative
obligation to provide the contested services.” 377 F. 3d, at
458 (Luttig, J., dissenting). Policy considerations, conven
ience, and fairness, I think it plain, point in the same direc
tion. Their collective weight warrants a rule requiring a
school district, in “due process” hearings, to explain per
suasively why its proposed IEP satisfies the IDEA’s stand
ards. Ibid. I would therefore reverse the judgment of
the Fourth Circuit.
Justice Breyer, dissenting.
As the majority points out, the Individuals with Disabili
ties Education Act (Act), 20 U. S. C. § 1400 et seq., requires
school districts to “identify and evaluate disabled chil
dren, . . . develop an [Individualized Education Program]
for each one . . . , and review every IEP at least once a year.”
Ante, at 53. A parent dissatisfied with “any matter relating
[1] to the identification, evaluation, or educational placement
of the child,” or [2] to the “provision of a free appropriate
public education” of the child, has the opportunity “to re
solve such disputes through a mediation process.” 20
U. S. C. §§ 1415(a), (b)(6)(A), (k) (2000 ed., Supp. V). The Act
further provides the parent with “an opportunity for an im

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68 SCHAFFER v. WEAST
Breyer, J., dissenting
partial due process hearing” provided by the state or local
education agency. § 1415(f )(1)(A). If provided locally,
either party can appeal the hearing officer’s decision to the
state educational agency. § 1415(g). Finally, the Act allows
any “party aggrieved” by the results of the state hear
ing(s) “to bring a civil action” in a federal district court.
§ 1415(i)(2)(A). In sum, the Act provides for school board
action, followed by (1) mediation, (2) an impartial state due
process hearing with the possibility of state appellate review,
and (3) federal district court review.
The Act also sets forth minimum procedures that the par
ties, the hearing officer, and the federal court must follow.
See, e. g., § 1415(f )(1) (notice); § 1415(f )(2) (disclosures);
§ 1415(f)(3) (limitations on who may conduct the hearing);
§ 1415(g) (right to appeal); § 1415(h)(1) (“the right to be ac
companied and advised by counsel”); § 1415(h)(2) (“the right
to present evidence and confront, cross-examine, and compel
the attendance of witnesses”); § 1415(h)(3) (the right to a
transcript of the proceeding); § 1415(h)(4) (“the right to
written . . . findings of fact and decisions”). Despite this
detailed procedural scheme, the Act is silent on the question
of who bears the burden of persuasion at the state “due proc
ess” hearing.
The statute’s silence suggests that Congress did not think
about the matter of the burden of persuasion. It is, after all,
a relatively minor issue that should not often arise. That
is because the parties will ordinarily introduce considerable
evidence (as in this case where the initial 3-day hearing in
cluded testimony from 10 witnesses, 6 qualified as experts,
and more than 50 exhibits). And judges rarely hesitate to
weigh evidence, even highly technical evidence, and to decide
a matter on the merits, even when the case is a close one.
Thus, cases in which an administrative law judge (ALJ) finds
the evidence in precise equipoise should be few and far be
tween. Cf. O’Neal v. McAninch, 513 U. S. 432, 436–437
(1995). See also Individuals with Disabilities Education Im

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69 Cite as: 546 U. S. 49 (2005)
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provement Act of 2004, Pub. L. 108–446, §§ 615(f)(3)(A)(ii)–
(iv), 118 Stat. 2721, 20 U. S. C. §§ 1415(f)(3)(A)(ii)–(iv) (2000
ed., Supp. V) (requiring appointment of ALJ with technical
capacity to understand Act).
Nonetheless, the hearing officer held that before him was
that rara avis—a case of perfect evidentiary equipoise.
Hence we must infer from Congress’ silence (and from the
rest of the statutory scheme) which party—the parents or
the school district—bears the burden of persuasion.
One can reasonably argue, as the Court holds, that the risk
of nonpersuasion should fall upon the “individual desiring
change.” That, after all, is the rule courts ordinarily apply
when an individual complains about the lawfulness of a gov
ernment action. E. g., ante, at 56–61 (opinion of the Court);
377 F. 3d 449 (CA4 2004) (case below); Devine v. Indian
River County School Bd., 249 F. 3d 1289 (CA11 2001). On
the other hand, one can reasonably argue to the contrary,
that, given the technical nature of the subject matter, its
human importance, the school district’s superior resources,
and the district’s superior access to relevant information, the
risk of nonpersuasion ought to fall upon the district. E. g.,
ante, p. 63 (Ginsburg, J., dissenting); 377 F. 3d, at 456–459
(Luttig, J., dissenting); Oberti v. Board of Ed. of Borough of
Clementon School Dist., 995 F. 2d 1204 (CA3 1993); Lascari
v. Board of Ed. of Ramapo Indian Hills High School Dist.,
116 N. J. 30, 560 A. 2d 1180 (1989). My own view is that
Congress took neither approach. It did not decide the “bur
den of persuasion” question; instead it left the matter to the
States for decision.
The Act says that the “establish[ment]” of “procedures” is
a matter for the “State” and its agencies. § 1415(a). It adds
that the hearing in question, an administrative hearing, is to
be conducted by the “State” or “local educational agency.”
20 U. S. C. § 1415(f)(1)(A) (2000 ed., Supp. V). And the stat
ute as a whole foresees state implementation of federal stand
ards. § 1412(a); Cedar Rapids Community School Dist. v.

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70 SCHAFFER v. WEAST
Breyer, J., dissenting
Garret F., 526 U. S. 66, 68 (1999); Board of Ed. of Hendrick
Hudson Central School Dist., Westchester Cty. v. Rowley,
458 U. S. 176, 208 (1982). The minimum federal procedural
standards that the Act specifies are unrelated to the “burden
of persuasion” question. And different States, consequently
and not surprisingly, have resolved it in different ways.
See, e. g., Alaska Admin. Code, tit. 4, § 52.550(e)(9) (2003)
(school district bears burden); Ala. Admin. Code Rule 290–8–
9–.08(8)(c)(6)(ii)(I) (Supp. 2004) (same); Conn. Agencies Regs.
§ 10–76h–14 (2005) (same); Del. Code Ann., Tit. 14, § 3140
(1999) (same); 1 D. C. Mun. Regs., tit. 5, § 3030.3 (2003)
(same); W. Va. Code Rules § 126–16–8.1.11(c) (2005) (same);
Ind. Admin. Code, tit. 511, Rule 7–30–3 (2003) (incorporating
by reference Ind. Code § 4–21.5–3–14 (West 2002)) (moving
party bears burden); 7 Ky. Admin. Regs., tit. 707, ch. 1:340,
§ 7(4) (2004) (incorporating by reference Ky. Rev. Stat. Ann.
§ 13B.090(7) (Lexis 2003)) (same); Ga. Comp. Rules & Regs.,
Rule 160–4–7–.18(1)(g)(8) (2002) (burden varies depending
upon remedy sought); Minn. Stat. Ann. § 125A.091, subd. 16
(West Supp. 2005) (same). There is no indication that this
lack of uniformity has proved harmful.
Nothing in the Act suggests a need to fill every interstice
of the Act’s remedial scheme with a uniform federal rule.
See Kamen v. Kemper Financial Services, Inc., 500 U. S. 90,
98 (1991) (citations omitted). And should some such need
arise—i. e., if nonuniformity or a particular state approach
were to prove problematic—the Federal Department of Edu
cation, expert in the area, might promulgate a uniform fed
eral standard, thereby limiting state choice. 20 U. S. C.
§ 1406(a) (2000 ed., Supp. V); Irving Independent School
Dist. v. Tatro, 468 U. S. 883, 891–893 (1984); see also Barn
hart v. Walton, 535 U. S. 212, 217–218 (2002); NationsBank
of N. C., N. A. v. Variable Annuity Life Ins. Co., 513 U. S.
251, 256–257 (1995); Chevron U. S. A. Inc. v. Natural Re
sources Defense Council, Inc., 467 U. S. 837, 842–845 (1984).

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Most importantly, Congress has made clear that the Act
itself represents an exercise in “cooperative federalism.”
See ante, at 52–53 (opinion of the Court). Respecting the
States’ right to decide this procedural matter here, where
education is at issue, where expertise matters, and where
costs are shared, is consistent with that cooperative ap
proach. See Wisconsin Dept. of Health and Family Servs.
v. Blumer, 534 U. S. 473, 495 (2002) (when interpreting stat
utes “designed to advance cooperative federalism[,] . . . we
have not been reluctant to leave a range of permissible
choices to the States”). Cf. Smith v. Robbins, 528 U. S. 259,
275 (2000); New State Ice Co. v. Liebmann, 285 U. S. 262, 311
(1932) (Brandeis, J., dissenting). And judicial respect for
such congressional determinations is important. Indeed, in
today’s technologically and legally complex world, whether
court decisions embody that kind of judicial respect may rep
resent the true test of federalist principle. See AT&T Corp.
v. Iowa Utilities Bd., 525 U. S. 366, 420 (1999) (Breyer, J.,
concurring in part and dissenting in part).
Maryland has no special state law or regulation setting
forth a special IEP-related burden of persuasion standard.
But it does have rules of state administrative procedure and
a body of state administrative law. The state ALJ should
determine how those rules, or other state law, applies to this
case. Cf., e. g., Ind. Admin. Code, tit. 511, Rule 7–30–3
(2003) (hearings under the Act conducted in accord with gen
eral state administrative law); 7 Ky. Admin. Regs., tit. 707,
ch. 1:340, Section 7(4) (same). Because the state ALJ did
not do this (i. e., he looked for a federal, not a state, burden
of persuasion rule), I would remand this case.