546US1
Unit: $$U7
[09-04-08 12:12:39] PAGES PGT: OPIN
Cite as: 546 U. S. 49 (2005)
69
Breyer, J., dissenting
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.
