An Expert Prediction: Parents Face Long Odds in Supreme Court Case on Special Education

Susan Phillips
April 24, 2006

The most recent case concerning the rights of special education students and their families to reach the U.S. Supreme Court hasn't generated nearly the same amount of public and press attention as last year's decision in Schaffer v. Weast. (In that case, the justices ruled that the burden of proof in special education cases lies with whichever party is bringing the complaint, rather than automatically falling to the school district.)

Yet Murphy v. Arlington, in which the justices heard oral arguments on April 19, 2006, could have a far more pronounced impact on families that seek to challenge the educational placements and services their children receive.

The case came before the Supreme Court after a lower court found that the Arlington Central School District in New York State should indeed pay expert fees to the Murphy family, to cover the costs associated with assessing their child and making a case that the school district had failed to meet his needs with its proposed education plan. The Murphys had already been successful in their lawsuit to require the district to pay for a different placement. But the district had appealed the original court's decision to order the district to pay expert fees. A decision could be handed down sometimes within the next couple of months.

While the primary law governing special education, the Individuals with Disabilities Education Act, or IDEA, does specify that when parents prevail in court school districts should reimburse them for attorneys' fees, the law does not explicitly state that they should or should not be reimbursed for other costs, such as expert fees for assessments, and consultations with clinicians.

The Wrightslaw web site has links to all of the documents and briefs in this case and others, as well as a wide range of free resources on special education law.)

Pete Wright, a founder of Wrightslaw and a long-time special education attorney who knows what it's like to stand up before the highest court in the land (he successfully argued Florence County v. Carter before the Supreme Court in 1993) attended the oral arguments, and spoke with Connect for Kids the next day.

CFK: What was your overall impression of the oral arguments you heard in the Arlington case?

Pete Wright: My impressions are not good. The court seemed to be looking for reasons to find that the parents are not entitled to reimbursement for the cost of expert witnesses.

CFK: What kinds of questions were the Justices asking?

PW: A lot of the questions concerned whether the wording in the statute is ambiguous...If the statute is ambiguous, then you can look to the legislative history for direction. (Ed: Here's the wording in question: "In any action or proceeding brought under this section, the court, in its discretion, may award reasonable attorneys' fees as part of the costs to the parents of a child with a disability who is the prevailing party.")

...The problem from the parent's perspective is that the majority of the Justices, in their questions it was clear they were leaning in favor of the school district. I think it will be 5 to 4, or maybe even 6 to 3. It was a little unclear which way Justice (Ruth Bader) Ginsburg was leaning. But it was pretty clear that a majority of the justices are going to hold that costs' do not include reimbursement for expert fees.

CFK: In light of the recent Schaffer v. Weast decision, do you think that there is generally—on the court and in society—a willingness to raise the bar, procedurally and financially, for parents who challenge special education placements?

PW: Certainly with this court. The court has changed the dynamics on all of that now, and the bar has been raised for parents. Earlier we had Justice (Sandra Day) O'Connor as an advocate for parents, and even Rehnquist, who had a conservative reputation, but was very interested in children's rights.

...There has been a change, the mood has shifted, and my suspicion is that there's an economic analysis going on, a fear that special education litigation is costing school districts a lot of money. (But) I don't think people understand that the money that is being spent on counsel to school districts seems to exceed the costs of providing services to children. I'm not sure we're doing a good job of explaining how the balance is shifting.

CFK: What should parents and special education advocates be doing to try to improve the balance?

PW: Better PR by parents about the benefits of special education and how society benefits as a whole from good special education would help. We need a thrust with state legislatures and Congress about writing some of these things that have been taken away into the legislation.

But I don't think Congress is in the mood right now to change the language regarding burden of proof (the issue taken up in Shaffer v. Weast). Some states are taking that on.

With regard to reimbursement for attorneys' fees...that might require a more national thrust, calling for a change by Congress spelling out the issue of attorney fees and expert witness fees. And I'd like to see a sunshine law requiring school districts to disclose what they pay in attorney fees.

CFK: Have you started to sense that Schaffer v Weast is having an impact? If so, how would you characterize that?

PW: It may be too early to tell. In the 4th Circuit (Court of Appeals) where I've done most of my work, the burden of proof has always been on has not been a big shift for those of us in the area of the 4th circuit. In other areas, I'm sure it is having an effect on how cases are prepared and presented. Whether it's an actual adverse effect, or simply a change in procedure, I don't really know.

CFK: How important is access to expert opinion to parents in these situations?

PW: It is absolutely critical. It is the single most important variable from a factual perspective. As a general rule, I have all parents obtain a private psycho-educational assessment of their child... It gives them independent, baseline data on where their child is now. That's just good common sense. Then if the child starts to go have clear, objective evidence. That's a necessary thing you need in all litigation. This is not unique to special education law—take medical malpractice, for example. It's just a normal part of the litigation process.

CFK: Is there any way to quantify what kinds of expenses parents face in these cases?

PW: Not really. The expense will depend on a lot of things—the nature of a kids' disability. How much time the expert will need to expend. The nature of the expert's employment. For instance, does the expert have a private clinic...high overhead? Or are they part of a university or a clinic that provides this service for a low cost?

Many times I do like to get university types to come in and evaluate the child, and in some instances they will do it for very low costs. That's one of the resources that are going to have to be explored (if this decision goes in favor of the district). We'll have to look more to pulling in public sector and nonprofit entities. Yet for them, litigation is not a pleasant experience.

CFK: So how big an impact would an adverse decision have on this area of special education law?

PW: It's hard to say...The upper-income family is probably not going to be adversely impacted. And in many cases, with a lower-income family, if they do have a local child development clinic providing services and staff that's willing to get involved, they may be OK. The impact may be more for families in the middle.

At the same time, any litigation is a crap shoot, and parents need to go in knowing they may not get anything, no matter how good a case they have...Without regard to Shaffer or Murphy, the barriers have always been there. So the doors have been closed for many people already.

Susan Phillips is the former executive editor of Connect for Kids. Pete Wright is the founder of Wrightslaw and a long-time special education attorney.





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I&;m not sure I&;m in the right place to post, but here goes. I&;m the mother of a child with a learning disability in math and reading. He recently took the CRCT in Georgia and did not pass the math portion. It is already known that he is not on the 8th grade level in Math. I believe the test is a bit contradictory. He has to attend summer school for 4 weeks and then retest. I&;m highly upset because he will be taught the test in order for him to pass. The "No Children Left Behind" policy did not take into consideration Special Education Children. I would like to know what I can do to address this issue to someone. I have more, but I&;ll wait for a response.