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SCHAFFER v. WEAST Opinion of the Court

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”).