The U.S. Supreme Court has accepted the appeal of the case Arlington Central v. Murphy. This case has been pending appeal for several months. The issue in this case is whether parents who prevail in a due process case can recover their expert’s fees and costs from the school district. In the underlying case, from New York’s 2d Circuit Court of Appeals, the ruling went in favor of the parents and the school district appealed. (download Murphy_v. Arlington Central.pdf)
There is a division in the various Circuit Courts of Appeal around the
country on this issue. The 7th Circuit Court of Appeals which covers
my home state of Illinois, Wisconsin and Indiana, in the case T.D. v. LaGrange (Download T.D. v. LaGrange School District.pdf
)
has aligned itself with the 8th Circuit, and ruled that expert’s fees are not recoverable. Apparently to resolve this division in the Circuits,
the Supreme Court has decided to take the case to resolve this issue
and create uniformity in the law.
This case follows closely upon the November 2005 decision in Shaffer v. Weast where the Supreme Court ruled that the party bringing the due process bears the burden of proof. In Shaffer the Court also stated :
“IDEA thus ensures parents access to an expert who can evaluate all
the materials that the school must make available, and who can give an
independent opinion. They are not left to challenge the government
without a realistic opportunity to access the necessary evidence, or without an expert with the firepower to match the opposition.” [emphasis added].
As I see it, the real issue before the Court is it prepared to show
us the money ! That is, if parents are expected to have access to an
expert to match the “firepower” of the school, then the Court should
rule that schools should be expected to pay for that expert when the
parent prevails. Without the ability to recover expert’s costs and
expenses, this language from Shaffer does not mean very much in the
real world.
The Arlington case also presents Chief Justice Roberts, with an opportunity to demonstrate that he
was sincere when he testified in his confirmation hearing that he applies the
intent of Congress when interpreting statutes. The 7th Circuit, on
the other hand, in T.D. quoted the following language from the conference report on IDEA:
“The conferees intend that the term ‘attorney’s fees as part of the
costs’ include reasonable expenses and fees of expert witnesses and the
reasonable cost of any test or evaluation which is found to be
necessary for the preparation of the … case.”
The T.D.
court promptly ignored this language and ruled against this clear
statement of intent that parents should be able to recover reasonable
expert fees and costs when they prevail in a due process case.
This case will resolve a critical issue for parents. Here in Illinois, the Arlington
case can only be a winner, since we are already barred from recovering
expert’s fees in prevailing due process cases. Moreover, it will
show if the language in Shaffer has any real meaning, and if
Chief Justice Roberts is willing to apply the clear intent of
Congress. If the answer to both these question is affirmative then
parents can expect a winning decision in the Arlington case.