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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."
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 childrens 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 students progress and to vehemently defend challenges to the schools educational program. Those school district experts are not likely to testify that a student has been denied a FAPE.
The Courts 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.
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."
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 childrens 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 students progress and to vehemently defend challenges to the schools educational program. Those school district experts are not likely to testify that a student has been denied a FAPE.
The Courts 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.
