546US1
Unit: $$U7
[09-04-08 12:12:39] PAGES PGT: OPIN
Cite as: 546 U. S. 49 (2005)
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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),
