Just an update on the action in the latest ed. law case on
the Supreme Court
Docket, Arlington
v. Murphy. Several entities have filed amicus briefs at this point,
including NSBA and
the Department
of Justice.



This case concerns the awarding of expert witness fees as a subset of
attorney's fees* that are awarded under the IDEA, 20
U.S.C. 1415(i)(3)(B). The case generated nearly $30,000 for a single
consultant (Marilyn Arons, pictured), which the prevailing parents requested
the district to cover. The trial court, after some discussion of time keeping
requirements, awarded $8,650. This was affirmed by the Appellate Court.


            
             
                   
                   
                  
             



Just a short comment in preparation for the decision: This Edjurist, at least,
felt the case was rightly decided by the Appellate Court, but fears the Supreme
Court (with its infinite wisdom in special education) will again strike down a
fee shift between the school and the parents. The law is certainly unclear on
this issue and other civil rights laws do not allow for such an award. However,
as the 2nd Circuit indicated in its decision, IDEA is and should continue to
be, different from other civil rights statutes. IDEA itself indicates parents
have, "the right to be accompanied and advised by counsel and by
individuals with special knowledge or training with respect to the problems of
children with disabilities." Finally, policy demands this fee shift. Not
only has the Supreme Court managed to take away most of the decent lawyers in
special education (see Buckhannon below) now they have the chance to
take away most of the decent lay advocates. If they do rule against expert
fees, special education parents will be left even more in the dark when schools
trample on their rights and, ultimately, special education students will be
poorly served.



On a different note, to all you fans of statutory interpretation (myself
included) this will be an excellent case to watch. There is a huge reliance on
legislative history and an earlier case, Casey, found Justice
Scalia relying on legislative history in dicta saying Congress did intend for
IDEA to be different. Probably, the court will pull some "plain
language" malarkey to get rid of the legislative history, but if nothing
else, it will be especially interesting to see how the two new justices deal
with the issue.



*While this is the first case dealing with expert witness costs, it is not the
first case to deal with attorney's fees under the IDEA. See, Buckhannon (audio
here),
T.D. v.
LaGrange, Doe
v. Boston Pub. Sch., and others.