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Supreme Court to Hear Case on Reimbursement for Special Education Experts

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The U.S. Supreme Court has granted review of an appeal that will determine whether parents can be reimbursed under the main federal special education law for the fees of experts they hire as part of a challenge to a student’s individualized education program.

The justices agreed on Jan. 6 to add Arlington Central School District v. Murphy (Case No. 05-18) to the docket for their current term. The case will be argued in April, with a decision likely by late June.

It will be the second case interpreting the Individuals with Disabilities Education Act to be heard by the court this term. On Nov. 14, the court ruled 6-2 that the burden of proof in IDEA legal disputes rests with the party seeking relief, which is usually the parents.

The new case also has broad implications for school districts and parents of children in special education.

The Bush administration had recommended last month that the court take up the case to resolve a split among the federal appeals courts over whether the IDEA authorizes a court to award fees for experts employed by the parents of a child with a disability who are the victors in a dispute with a school district.

The special education law expressly authorizes the recovery of attorneys’ fees, and the question in the case is whether such fees can be defined to include experts’ fees. A legislative report in Congress in a 1986 reauthorization of the IDEA’s predecessor statute suggested that lawmakers intended for attorneys’ fees to include "reasonable expenses and fees of expert witnesses and the reasonable costs of any test or evaluation which is found to be necessary for the preparation of the case."

Various federal appeals courts have disagreed about how much deference to give the legislative report.

In the current case, Pearl and Theodore Murphy, the parents of a child with unspecified disabilities, had a long-running dispute with the 10,000-student Arlington, N.Y., district over the placement of their son, Joseph. The parents employed an educational consultant to represent them in special education proceedings. They eventually prevailed in a federal district court and in a March 2005 ruling by a unanimous three-judge panel of the U.S. Court of Appeals for the 2nd Circuit, in New York City.

Although the school district resisted when the Murphys submitted a bill to the court for $29,350 in expert fees for the consultant’s services, the district court concluded that the parents were entitled to recover part of that sum, or $8,650.

The 2nd Circuit held that Congress had sufficiently indicated in the legislative report that prevailing parties could recover expert fees under the IDEA. The court also found that awarding expert fees was consistent with the law’s purpose of ensuring that all children with disabilities get a free, appropriate public education.

The Bush Administration’s Position

The U.S. Courts of Appeals for the 7th, 8th, and District of Columbia Circuits, in Chicago, St. Louis, and Washington, respectively, have ruled the opposite way: that expert fees cannot be recovered under the IDEA.

That was the position taken by the Bush administration in its brief last month urging the Supreme Court to take up the case.

"The text of IDEA unambiguously authorizes only the award of attorneys' fees—and not expert fees—to parents who prevail in IDEA litigation," said the brief filed by U.S. Solicitor General Paul D. Clement.

The statute "nowhere mentions 'expert fees,' " the brief goes on. "That omission is particularly telling because Congress knows how to expressly authorize the award of both 'attorneys' fees' and 'expert fees,' and has done so in numerous other statutes."

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