A middle school student with an emotional disability had been removed from the education setting on numerous occasions for two school years. The parent requested a due process hearing on the grounds of denial of a free appropriate public education (FAPE). The independent hearing officer (IHO) determined the school had the burden of persuasion to show it had complied with the law and offered a FAPE to the student. The IHO found that student had be denied a FAPE and awarded the student 188 hours of compensatory educational services. The parent then filed an action in district court seeking an award of attorney’s fees. The district court reduced the compensatory services award by eight hours and awarded the parent substantial costs and attorney’s fees. The school appealed.

The record shows that while the student had been removed from the educational setting on numerous occasions, the parent had refused placement in a more restrictive setting and homebound services.

1. Was the IHO correct in asserting the school has the “burden of persuasion” in a due process hearing? Explain.

2. Did the U. S. Court of Appeals, Eighth Circuit uphold the IHO and district finding with regard to the provision of FAPE?