The U.S. Supreme Court asked the Bush administration last week for its views on whether parents can be reimbursed under the main federal special education law for the fees of experts who take part in a challenge to a student鈥檚 individualized education program.
The request comes amid a relative flurry of activity at the high court involving cases under the Individuals with Disabilities Education Act. The justices declined last week to review two other cases involving the statute, and earlier this month they heard arguments in a case that will determine whether parents or school districts bear the burden of proof in legal challenges under the IDEA.(鈥淐ourt Weighs Burden of Proof in IDEA Cases,鈥� Oct. 12, 2005.)
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In the case about fees under the IDEA, the court on Oct. 11 asked the U.S. solicitor general for guidance on whether the law 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.
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 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鈥檚 services, the district court concluded that the parents were entitled to recover part of that sum, or $8,650.
The district鈥檚 petition to hear Arlington Central School District Board of Education v. Murphy (No. 05-18) argues that while the IDEA authorizes parents who prevail in legal proceedings to recover lawyers鈥� fees, it does not permit the recovery of fees for experts, whether they are witnesses or, as in this case, consultants to the parents.
The Supreme Court鈥檚 request for the solicitor general鈥檚 views on the issue strengthens the odds that the court will grant a full review of the case. The solicitor general鈥檚 office typically takes several months to file a brief in response to such a request.
Federalism Case
Meanwhile, the justices on Oct. 11 declined to hear an appeal by the state of Louisiana from a decision that allowed the state to be sued over alleged violations of federal laws protecting students with disabilities, including the IDEA and Section 504 of the Rehabilitation Act of 1973.
The case had raised an important federalism question by examining whether the state had given up its 11th Amendment immunity from lawsuits when it agreed to accept federal money under the disability laws. The case began as a fairly routine special education dispute involving Travis Pace, a high school student with multiple mental and physical disabilities, who sued the 3,000-student Bogalusa, La., school district and the state in 1999.
In March, the full U.S. Court of Appeals for the 5th Circuit, in New Orleans, ruled 8-6 that Mr. Pace鈥檚 specific claims were invalid, but it upheld his right to sue the state under the laws. The 5th Circuit court, which had raised the 11th Amendment immunity issue on its own, ruled that Louisiana had knowingly waived its right to immunity from private lawsuits when it accepted federal funds under the IDEA and Section 504 of the Rehabilitation Act.
The U.S. Department of Justice had backed the Pace family鈥檚 contention, both in the appeals court and in a Supreme Court brief, that the state had in fact given up its immunity.
The high court declined without comment to hear the state鈥檚 appeal in Louisiana State Board of Elementary and Secondary Education v. Pace (No. 04-1655).
Also last week, the justices turned away the Hamilton County, Tenn., school district鈥檚 appeal of a lower-court ruling in favor of the parents of Zachary Deal, an elementary school student with autism.
The Deals believed that an intensive teaching approach called applied behavioral analysis was essential to their son鈥檚 education. In 1998, they presented the district an IEP that emphasized that method. The 38,000-student Hamilton County district, however, developed an IEP involving other methods, including physical and speech therapy. School officials regarded the Deals鈥� program as unnecessarily expensive.
An administrative-law judge sided with the Deals, but a federal district court ruled in favor of the school district. On appeal, the U.S. Court of Appeals for the 6th Circuit, in Cincinnati, rejected the school district鈥檚 premise that an IEP is sufficient if it confers something more than a minimal educational benefit. The appeals court held that 鈥渁n IEP [must] confer a meaningful educational benefit,鈥� while leaving the district court to figure out what such a program should be.
The Supreme Court declined without comment to hear the school district鈥檚 appeal in Hamilton County Department of Education v. Deal (Case No. 05-55).
