Well, no surprise, the Supreme Court has decided
against allowing consultant fees to be recoverable under the attorney's
fees provisions (Sec.
1415(i)(3)) of IDEA. Really, this case was not even that close. Even the
typically liberal Justice Ginsburg had to conclude that the provisions allowing
attorney's fees were not meant to include consultant fees, for a 6-3 decision.

Justice Alito wrote the majority, and, to be frank, the decision was pretty
well written. I do have some issue, as Justice Ginsburg did, with the statement
that the court must view the statutory provision from the point of view of a
state official wanting to know their liability (a Spending Power remnant). Such
a state official must be on "clear notice" of the potential
liability. First, shouldn't the Court be viewing the issue from the perspective
of the Supreme Court? How would they know what a state official was thinking in
1974-5? Justice Scalia, who joined the opinion, is fond of saying that we
cannot know what a legislator was thinking from legislative history, but at
least in that instance there is some evidence. Here, the Justices are simply
guessing at the interpretation of a hypothetical state official. Second,
although it is no secret I am a big fan of state's rights in education (see NCLB issue), the
IDEA was not intended to benefit states. It was intended to benefit disabled
students, who, until 1974-75, were severely discriminated against on a regular
basis. Why are we considering the state's perspective when they were clearly
the problem back then (and now - remember that schools are instruments of the
state)? Shouldn't we be erring on the side of the student - as represented by
the parent? If the plain meaning of the statutory language falls on the side of
the state, fine. But let's not give the state the benefit of the doubt when
they were/are clearly the problem and the instrument of discrimination.

I am not really going to argue, though, with the outcome. I think it was the
proper decision from a legal perspective, and frankly, I was surprised originally
by the Second Circuit opinion. If Congress meant something more than attorney’s
fees, they should have said so. You can’t fault the Supreme Court for making
the proper decision from a legal perspective, but, if you want, you can fault
Congress all you want to for not taking initiative and including the additional
language. From a policy perspective, however, we are taking about quite a
different matter.

Here is the issue that is increasingly becoming a problem in special education.
The IDEA procedural safeguards cost quite a bit (see the Special Education
Expenditure Project report
on the costs of IDEA procedural safeguards) for both parents and districts.
Increasingly, of course, school budgets are squeezed. Administrators attempt to
cut from their special education services. Sometimes they cut too much. In
these cases, parents need the capability to initiate the due process
procedures. However, increasingly, parents are being discouraged from using
this option by the government. This decision is just the most recent in a line
of case and legislative decisions that limit the financial ability of the
parent to recover costs from the school in instances when they cross the line.
From working in this field and speaking with these folks regularly, these
decisions have clearly limited the parent's ability to protect their children
from the budget cutting school districts. Specifically, this decision, in
conjunction with the Buckhannon decision, is going to severely limit
parental outlets for both legal and professional help as both lawyers and now
consultants will discontinue serving the special education community because of
the uncertainty of funding from typically poor parents. Of course, some will
remain, but it is likely that only financially sound parents will be capable of
affording their services, and thus protecting only financially well off students.
Thus, it is the disabled children from poor families who will be most affected.
Talk about a double dose of discrimination.

Granted, we are living in a different era than we did when this law was
initially passed in the 1970's. Now, more and more dollars are going to issues
like school safety, teacher healthcare, etc., and generally, we put less stock
in civil rights and anti-discrimination, and perhaps even equality. However, I
feel we are slipping on the original promises of EAHCA and IDEA. We are not
trying as hard for disabled students as we once did, and that starts at the top
with the White House, Congress, and the Supreme Court. How do we expect our
local administrators to continue to live up to the promise of IDEA when their
governmental superiors are eroding its central provisions? Again, I ask us to
err on the side of the students. Remember what IDEA has accomplished in its
short 30 years. Persons who would have been cast aside by society are now
valuable members. That is something to be proud of, to cherish, and to protect.

See Charles Fox's response (parent advocate) at the Special
Education Law Blog as he copes with the recent decisions. Also see NSBA's Board Buzz for the
other side of the argument.