The U.S. Supreme Court recently made two important but frustrating rulings on key concerns for special education advocates. In Shaffer v. Weast, the Court held that parents who believe their child's Individualized Education Program (IEP) is inadequate have the burden of proving it at an impartial hearing. In Murphy v. Arlington, it found that parents are not allowed under the Individuals with Disabilities Education Act (IDEA) to recover special educational consultant fees incurred while challenging a district over an IEP. Previously, there had been a split among lower federal courts, some of which found expert costs recoverable under the law and some of which did not.
In Arlington, parents challenged the appropriateness and sufficiency of their LD son's IEP. Believing his placement to be inadequate, the parents removed their son from the public school, placed him in a private LD school and asked a hearing officer to designate the private school as the appropriate placement. The hearing officer ruled in their favor, and, on appeal, so did a state review officer and a federal judge. When the parents then sought recovery of their attorney and expert consultant costs, the district balked at the expert fees. The district court and the 2nd Circuit Court of Appeals ruled for the parents, saying that IDEA allows for recovery of fees for experts and "individuals with special knowledge" instrumental in allowing the parents to make their case. The Supreme Court reversed, finding that the IDEA does not explicitly allow for recovery of such costs.
Taken together, these decisions show a trend that special education advocates and parents need to understand, and about which there is reason for concern. Both read the IDEA in ways that place a significant burden on parents seeking to challenge district actions or inactions impacting their child with disabilities. Weast requires parents, many of whom lack a sophisticated understanding of the highly complex special education process, to show just what is wrong with a proposed district placement instead of calling on the district to justify its appropriateness.
Arlington makes challenging a placement more expensive — parents can no longer recover fees for expert assistance that goes beyond legal expenses. Lower courts will interpret and build on these decisions, so their impact has yet to be fully seen, but advocates should be aware of the precedents they set and the trend that seems to be building.
Decisions such as these highlight the importance of organizations, like NCLD, that continue to work hard to protect the rights of LD children and adults. The civil rights of your child are at the heart of NCLD's policy efforts, and they will continue to monitor legislation like the IDEA to strengthen these laws.
Paul T. O'Neill, who serves on NCLD's Professional Advisory Board, is an attorney who focuses his practice and scholarship on education law. Mr. O'Neill serves as Senior Counsel & Senior Vice President of Edison Schools, the national education services and management organization. He is the author of numerous scholarly publications on special education and testing issues, and teaches education law as an adjunct professor at Teachers College, Columbia University.