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February 27, 2006
On to the Supremes: Should districts reimburse parents for special ed experts?Last week NSBA filed its brief in an upcoming U.S. Supreme Court case on special ed costs: Arlington Central School District v. Murphy. Press statement here.
The issue is whether a school district has to reimburse parents who win their special ed dispute with the district for the costs of expert witnesses, consultants, lay advocates, etc. IDEA requires the district to pay for the parent's attorneys fees, but the statute is silent, and the lower courts split, on the others. The case arose in this district in New York. The Second Circuit court of appeals decided that courts should read into IDEA that Congress intended to cover such fees. Summary here.
NSBA and its fellow amici argued that this ruling is contrary to IDEA's focus on collaboration. In the words of NSBA General Counsel Francisco Negrón, upholding the Second Circuit "will simply perpetuate a cycle of costly litigation by encouraging parents to hire experts. Public schools in turn will have little choice but to hire their own experts to rebut experts hired by parents." In fact, Congress has leveled the playing field on this question by requiring school districts to pay for a parent who disagrees with the district to obtain a timely evaluation from an independent expert.
Joining NSBA on the brief were American Association of School Administrators, the New York State School Boards Association, and the New York State Council of School Superintendents. NSBA Council of School Attorneys members Darcy Kriha, Julie Heuberger Yura, and Patricia Whitten of Franczek Sullivan in Chicago were lead authors. Also noteworthy: The Bush administration is siding with the school district.
This blog by Chicago special ed parent lawyer Charles Fox highlights some of the arguments on the other side. "Time For The Court To Show Us the Money!" it says, arguing that parents need their own experts to match the "firepower" of the schools. In this case, firepower refers to special education professionals whom, NSBA's brief notes, the district employs "not to have an unfair advantage at due process hearings" but to serve children appropriately.
As BoardBuzz observed when the Supremes handed down their sensible ruling a few months ago in Schaffer v. Weast, it'll be worth watching how the news media report this one. As we said then, the press often succumb to the tired temptation to portray these disputes as us-vs.-them, parents-vs.-bureaucrats battles; this tendency is the whole issue in this case. On another point educators and parent advocates can agree: No story is complete if it omits the chronic under-funding of special education that underlies so many of these disputes.
Posted February 27, 2006 11:57 AM | Special Education
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