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Published in Print: January 18, 2006, as Court to Weigh Expert Fees in IDEA Cases

Court to Weigh Expert Fees in IDEA Cases

Appeal has high stakes for districts, parents as consultants’ use grows.

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The U.S. Supreme Court will take up the question of whether parents can be reimbursed under the main federal special education law for the fees of experts they hire as part of challenges to their children’s individualized education programs.

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 in Schaeffer v. Weast that the burden of proof in IDEA legal disputes rests with the party seeking relief, which is usually the parents. ("High Court Boosts Districts in IDEA Cases," Nov. 30, 2005.)

The new case also has broad implications for school districts and parents of children in special education. A ruling for districts would further limit the costs of compliance with the IDEA, while a ruling upholding the payment of experts’ fees would be a big help to parents, who often lack the expertise and resources to do battle with districts in the special education arena.

The Bush administration recommended last month that the Supreme Court take up the Arlington Central appeal 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 prevail in a legal dispute with a school district.

The special education law expressly authorizes the recovery of lawyers’ fees. The question in this latest case is whether such fees can be defined to include the costs of employing experts, such as educational consultants who attend IEP meetings with parents, help place students, or serve as witnesses in legal proceedings.

Perry A. Zirkel, a professor of education law at Lehigh University in Bethlehem, Pa., said the question is important because of parents’ growing reliance on special education consultants who are not lawyers.

“It would seem to me over the past 10 years the most common category in special education litigation is attorneys’ fees,” rather than cases about core issues under the IDEA, such as what constitutes a free, appropriate public education or a least-restrictive environment, said Mr. Zirkel. He is also a state hearing officer in Pennsylvania for special education disputes.

“This statute is so complicated and expensive, we end up with cases like this, which is [over] who gets which slice of the transaction costs,” he added. “Here, it is the attendant [experts’] costs, which sometimes can be more than the attorneys’ costs.”

In the newly accepted 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., school district over reimbursement for the private school placement of their son, Joseph.

The parents hired an educational consultant, Marilyn Arons, to represent them in special education proceedings. They prevailed in U.S. District Court in New York City, and they submitted a bill to the court for $29,350 in expert fees for the consultant’s services. The district judge concluded that the parents were entitled to recover part of that sum, or $8,650.

Appeals Courts Differ

In a 2005 ruling, a three-judge panel of the U.S. Court of Appeals for the 2nd Circuit, in New York City, unanimously upheld the award of expert fees. The court cited a legislative report in Congress from a 1986 reauthorization of the IDEA’s predecessor statute suggesting that lawmakers intended for lawyers’ 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.”

The school district appealed to the Supreme Court, which last fall asked the Bush administration for its views on the case. The administration said the issue was ripe for review because various federal appeals courts have disagreed about how much deference to give the legislative report.

In contrast to the 2nd Circuit’s ruling, the U.S. Courts of Appeals for the 7th, 8th, and District of Columbia circuits, in Chicago, St. Louis, and Washington, respectively, have held that expert fees cannot be recovered under the IDEA.That was also the position taken by the Bush administration.

“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.”

Raymond G. Kuntz, a lawyer for the Arlington Central district, said last week that if the Supreme Court were to uphold the award of expert fees, that would have “the capacity to shift expenses in a way that we don’t think was contemplated by Congress.”

David C. Vladeck of the Institute for Public Representation at the Georgetown University Law Center, who is representing the Murphys before the high court, said the stakes of the case are high for parents. “The kinds of questions that arise in special education cases all depend on expert witnesses,” he said. “Schools, of course, have tons of experts on staff. For parents to make their case, they need their own experts.”

Delaware Ruling

Ms. Arons, the River Vale, N.J.-based educational consultant who aided the Murphys in their dispute, has been involved in other significant legal cases in special education proceedings over the rights of parents to use consultants and advocates who are not lawyers.

Delaware authorities initiated proceedings against Ms. Arons in 1996 for the alleged unauthorized practice of law for her special education advocacy. The Delaware Supreme Court ruled that the IDEA did not authorize those without lawyers’ credentials to represent parents at special education hearings.

After Ms. Arons appealed, the U.S. Supreme Court asked the Clinton administration for its views. In a 2000 brief, the solicitor general’s office said it was the Department of Education’s long-standing position that the IDEA required states to allow qualified nonlawyers to represent parents at special education hearings. But it recommended that the court not hear Ms. Arons’ appeal because, among other reasons, few federal or state courts had yet ruled on the issue. The justices accepted that advice and declined to hear Ms. Arons’ case.

The appeal from the Arlington Central district will involve only the question of whether parents can recover experts’ fees under the IDEA. The Supreme Court specified that it would not take up the separate question of whether an educational consultant who is not a lawyer can recover attorneys’ fees for representing parents.

Vol. 25, Issue 19, Pages 26,30

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