FAPE is no longer "free"

I found this interesting. I am one who had to hire an attorney to get the right schooling for my boys.
EducationNews.Org published Wyner & Tiffany's commentary on the recent Supreme Court Decision in Arlington Central Sch'l Dist. v. Murphy (June 26, 2006), which held that parents cannot recover expert witness fees in special education cases even when the parents are the "prevailing party." Click on the following link http://www.educationnews.org/, and then click on the title of the commentary: FAPE IS NO LONGER "FREE."

Tuesday, June 27, 2006
Steven Wyner
Attorney at Law

The Supreme Court appears bound and determined to create an obstacle course for families pursuing the rights of their disabled children. Approximately 8-months ago, in Schaffer v. Weast, the Court held that families must prove that their disabled children have been denied a FAPE. Today the Court has held in Arlington Central Sch l Dist v. Murphy, that families cannot recover expert witness fees under the IDEA.

The Court reasoned that the term “costs” is a “term of art,” as used in the IDEA provision allowing for an award of “reasonable attorneys’ fees as part of the costs” that may be recovered by families as a “prevailing party.” As a matter of statutory analysis, the Court held that the term “costs” does not “include reasonable expenses and fees of expert witnesses,” even though legislative history, including the Conference Committee Report, expressly stated that Congress intended expert witness fees to be recoverable as part of reasonable attorneys’ fees.

The Supreme Court has again ignored the realities faced by parents seeking to enforce their children’s federal and state rights. With rare exception, parents must offer the testimony of expert witnesses in order to prevail in administrative due process proceedings. In the absence of an expert witness, how can parents sustain the burden of proof and prove that a school district has denied their children a FAPE? The school districts rely upon the testimony of their teachers, behavioral specialists and aides, speech and language specialists, occupational therapy specialists, etc. (all of whom are generally viewed by hearing officers as experts), to testify about a student’s progress and to vehemently defend challenges to the school’s educational program. Those school district experts are not likely to testify that a student has been denied a FAPE.

The Court’s current decision will have the greatest effect upon financially disadvantaged families, who may be unable to find experts who previously testified based upon the understanding that should the parent prevail, the expert would recover fees for participating in the proceedings. As keenly observed by Justice Breyer in a well-reasoned, socially conscious dissent:

“In a word, the Act's statutory right to a free an appropriate education may mean little to those who must pay hundreds of dollars to obtain it.”

These two most recent Supreme Court cases make it clear that the schools and families are no longer playing on a level field. All too soon, we may find that only families that can afford to hire experts to help their failing children will be able to enforce the rights and remedies secured by the IDEA. FAPE is no longer “free.”


Oh yea, anything to keep us from trying to get our kids' services.

Being that I'm on a very limited income and that my Pervasive Developmental Disorder (PDD) kid's class takes useless "field trips" every other Friday.... I just never have or want to spend the money. It's usually $5 to $10 every other week and it's usually for a walk in a park, time on playground and to a restaurant. I forced them last yr to teach my kid to order his own food if they insist on me paying for him to eat out every other Friday instead of the free school lunch which he likes. They say that this is social time "in the community"... yea... just like my kid playing by himself in a corner of the playground during recess is mainstream time!

So I stopped paying for it all the time. I pay maybe once a month now. Heck, if they want to say it's instructional time they can pay for it themselves! LOL They're supposed to be providing a free lunch anyway! LOL

And then the middle school.... field trips are $50 and up! My kid doesn't go! Oh yea, this is a free public education!


typical teen,

Thanks for the post.

With this Supreme Court, I am afraid that this are going to get a lot worse.

The only real hope is that Congress will amend the law again: When the Supreme court said attorney's fees were not coverable (in about 1986 or so), Congress allowed for them in the 1990 amended to IDEA. Since the law was just amended, allowing recovery for experts won't happen soon.



New Member
Even without Special Education issues, I do not know why it is called "FAPE" cuz well, our real estate taxes portion for school is extremely high, and then there are all our registration fees and curriculum extra fees and book fees.....
and then add in the fundraisers that are unofficially mandatory for .library, art, gym supplies, and the "educational field trips" and supplies etc, such as graphing calculators required etc.....WHEW

And yes, then add in Special Education difficulties, and experts and advocates and lawyers etc.and days off work to attend all kinds of meetings etc.....

nope, it is far from "free" <sigh>



For non-Special Education kids, not's not "free" AND they can charge Special Education kids for everything they charge other kids for except transportation (unless it's in the IEP but see below on "mandatory" volunatary).

On the topic of our confiscatory property taxes in IL (for us with no kids in public school since 2003), it used to cost me $1000 a kid just to get them going in September with all the fees and "mandatory" voluntary contributions. I wouldn't have been so annoyed except it was 1/6 increase in our property taxes in the form of fees.

It's a very difficult situation especially with the absurd notion the Supreme Court has that the right to "Due Process" somehow levels the playing field. Sheesh...I am definitely getting too old and burned out to keep doing this in the face of one adverse legal decision after another.



New Member
Oh yup, to be sure.I cannot believe our real estate tax rate and yup, last fall, me too, besides the taxes, yup, the "reg" fees were for 3 kids over $1500....
And yeah, then if you need an advocate...or a lawyer..WHEW! And you know at least here, without a lawyer, the laws are simply "suggestions"
Oh it all looks good on paper and to the ppl who do not have to go thru it....and yes the cost of "FAPE" for a Special Education kid is even worse, but even for non difficult child non Special Education kids, it is far from "free" :-( and not always what it "could" be for any of the kids.
My only positive thought is that my middle child DOES thrive and DOES do very well and IS getting educated.
And yuk, I am NOT looking forward to writing out the checks in the next few weeks for school for fall. YUK. Especially for my son.

Sure there are "waivers" for low income....IF you get approved......and punishment if you do not get approved...(they withold grades and then suspend the kid when the fees are not paid if you do not get approved for the low income waivers) And now the mandatory vaccinations, physicals and now dental, too.....
Oh yes, I DO take my kids yearly for physicals, just becuz, but.....now there is also the need to have a dental exam within a certain time frame for certain grades....again, yes, I do take my kids irregardless but.....I know for some families sometimes it can be very difficult...

It's all just ........hard. And nope..not "free"

When I was working in our county nursing home one day, one of our nurses who we "imported" from another country made some comment to us older nurses aides that she thought we were terribly stupid to have not have become RNs by our age.cuz gee gosh after all, USA paid HER advanced schooling before she came to this country.....so she assumed everyone here also got free advanced educations. Well, I WAS in nursing school, but contrary to what she believed, I had to pay for it out of my personal pocket, so it was taking me much longer to do so. After she found out .she decided to leave her kids back in her home country to get educated there before she had them also come here.