Amicus Curiae Brief — Arlington Central School Dist. Bd. of Ed. v. Murphy

4

3n The

Supreme Court of the Anited States

e

ARLINGTON CENTRAL SCHOOL DISTRICT

BOARD OF EDUCATION,

Petitioner

Vv,

PEARL MURPHY AND THEODORE MURPHY

e

On Writ Of Certiorari

To The United States Court Of Appeals

For The Second Circuit

®

BRIEF FOR THE NATIONAL DISABILITY

RIGHTS NETWORK AND THE CENTER FOR

LAW AND EDUCATION AS AMICI CURIAE

IN SUPPORT OF RESPONDENTS

®

Drew S. Days, Ill

SETH M. GALANTER

Counsel of Record

LINDA A. ARNSBARCER

BRIAN R. MATSUI

MORRISON & FOERSTER LLP

2000 Pennsylvania Ave., NW

Washington, DC 20006

(202) 887-1500

Counsel for Amici Curiae

March 28, 2006

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OR CALL COLLECT (402) 4? 2831

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TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .................cccceesssssceecererereoes iil

INTEREST OF AMICI CURIAE....................cc0cc0cseeeeees

SUMMARY OF ARGUMENT ........0.............0.:ccccceceeeeeees

TUTE jéitiiidsdieniisnciacnitdinsih eabbciiidbiniiahicicibbebnatniphiapieiaaiin 5

IDEA AUTHORIZES COURTS TO AWARD PARENTS

OF CHILDREN WITH DISABILITIES EXPERT

FEES AS PART OF COSTS WHEN THEY ARE

PREVAILING PARTIES IN IDEA ADMINISTRATIVE

OR JUDICIAL PROCEEDINGS ..........cecececccessseeeseeseeeeeees

A. Experts Are Critical To Parents’ Ability To

Ensure That Their Children Receive A Free

Appropriate Public Education. ..........................

1. Due process hearings are structured to

make it necessary for parents to retain

EE OE I aiccicctrssemeiniietntvinintiectetnints

2. Experience shows that experts are critical to

parents’ chances of demonstrating in a due

process hearing that the school district

RTE aE ROI a SENECA END Ro

IDEA’s Structure And Text Convey Broad

Authority To District Courts To Provide Any

Appropriate Relief To A Prevailing Party,

Including Awarding Parents The Costs Of

SOI FE FIR vcccercenpeenvetnvocinisnmntinens

1. Casey does not control the proper

interpretation of the term “costs” in IDEA...

”

2. Excluding expert fees from the term “costs

in IDEA would be contrary to IDEA’s

structure and purpose..................c..ccceeeeeeeee

15

il

TABLE OF CONTENTS - Continued

Page

IDEA’s other remedial provisions, including

Congress’s mandate that courts “grant

such relief as the court determines is

appropriate,” confirm the authorization to

award expert fees .............cccccccccececeeeeeeeeeeeees

The “independent educational evaluation

of the child” authorized by IDEA does not

obviate the need for parents to obtain

reimbursement for expert fees ...................

C. Petitioner’s Limiting Construction Of The

Statute Based On The Spending Clause Is

IIE dccdunsibduicucribdtnintciasietidaiadpeiiiicnnindiinns

CRORE to cicroninrrnnneitsncincsiiiateinnbeinntisdeinniiniieistesnonmetin

20

23

ill

TABLE OF AUTHORITIES

Page

CASES

Alexander v. Sandoval, 532 U.S. 275 (2001).................00.. 29

Bell v. New Jersey, 461 U.S. 773 (1983).............cccceeeeeeeeees 29

Bennett v. Kentucky Dep't of Educ., 470 U.S. 656

ERRUUNID hndsleiiekeiilicedbceniscecnditassdidbicihee ulead vduakep ovnlclpteeshiceiss Siodiladipltn.s 28

Board of Educ. of Murphysboro v. Illinois State Bd.

of Educ., 41 F.3d 1162 (7th Cir. 1994)... 24

Board of Educ. of Westside Cmty. Sch. v. Mergens,

SS SEs Se NE ce tisisceticinitedbcnindncetncceentbdihimiinbeisiontion 29

Board of Educ. v. Michael M., 95 F. Supp. 2d 600

ERIS Fas WEN MUI ceniniciieiccchiocincnstidlanticsndiplipselitisueinadapeees 10, 11, 13

Board of Educ. v. Rowley, 458 U.S. 176 (1982)................... 6

Cannon v. University of Chicago, 441 U.S. 677

1 SERGE ISSO EGS par NE DRC ea eo ae See Ae OR NOOR 29

Cedar Rapids Community School District v. Garrett

i ID sesind sdideiaicctiviiindntniipsinsctpaneiieatinnsanionene 27

Clay T: v. Walton County Sch. Dist., 952 F. Supp.

ae A as We Pacdicstninnibaciiscbanctencsisinionndicimnshaghianccision 13

Crawford Fitting Co. v. J.T: Gibbons, Inc., 482 U.S.

Gy SG eictncccshilsinansiacstcnsmbindins iclassinslbideincibisambiddininin 15, 17

Das v. McHenry Sch. Dist. #15, 1994 U.S. Dist.

LEXIS 315 (N.D. Ill. Jan. 13, 1994)... eee 25

Davis v. Monroe County Bd. of Educ., 526 U.S. 629

Cs cisccnclecihih cath seleiisaiasiad haan aidinlacibaids deidiipig chap hellanndibbaptbiind 28, 29

Evans v. Board of Educ., 930 F. Supp. 83 (S.D.N_Y.

RE IIS SE AES HM ORE eI aN OAM! SOOT 10

Florence County Sch. Dist. v. Carter, 510 U.S. 7

SIs tichucisias iecduckesnncinsalindciihdnshleniciadindechicnaiaibigiahaplinde’ 5, 21, 22, 29

iv

TABLE OF AUTHORITIES — Continued

Page

Ford v. Long Beach Unified Sch. Dist., 291 F.3d

Se ae Se ceepsninnncittpantninaanseniiennpindiiermlandtciins 24

Franklin v. Gwinett County Pub. Schs., 503 U.S. 60

PII windccisicenssrcthuibelbiviacane piclainuiidanedes-vttakegh dpiitbntakiaialedaaunacitiniin 29

Hibbs v. Winn, 542 U.S. 88 (2004) ...... 0... ceeeeeeeees 17, 22

Holmes v. Mill Creek Twp. Sch. Dist., 205 F.3d 583

CREE Ge Be iiksssctniivicndctetnichipninntctinnodpsciianiniticcdidiaddbdiouinted 24

Honig v. Doe, 484 U.S. 305 (1988)... ceeeeseeeeeeerees 28

Hudson v. Wilson, 828 F.2d 1059 (4th Cir. 1987).............. 24

Hutto v. Finney, 437 U.S. 678 (1978) ..........ccccccceceeeeeeeeeeees 30

Irving Indep. Sch. Dist. v. Tatro, 468 U.S. 883

GRU isctiesicisisses tohiideys:dotaceasebbepandelinheteapiktongsasiinciasakimanied 5, 28

Jackson v. Birmingham Bd. of Educ., 125 S. Ct.

SE Ce iitidocihsechenisidphatacesiepbnininuiticaiiialibialiinimaas 28, 29

John M. v. Board of Educ., 2002 U.S. Dist. LEXIS

BOR EOL Ae Fiks MD tintcicanininctakceptbiptsanenaaathaiinailadiambiiies 24

Johnson v. Metro Davidson County Sch. Sys., 108

F. Supp. 2d 906 (M.D. Tenn. 2000).............ccc cee eeeeeeeeeeees 25

Judith S. v. Board of Educ., 1998 U.S. Dist. LEXIS

11072 (N.D. Ill. July 14, 1998) oes 24, 25

Nein v. Greater Clark County Sch. Corp., 95

F. Supp. 2d 961 (S.D. Ind. 2000) ............ cee 10

Neosho R-V Sch. Dist. v. Clark, 315 F.3d 1022 (8th

RE BI hiciccicpcineiciiinincnslatticenbipittesiasibhiciinacamiaieiaal 20

Oberti v. Board of Educ., 995 F.2d 1204 (3d Cir.

OP ccikacncclncapnkiteliniisemnisiminieieleaiide tds iaahistiabctaeiiasdl 13, 14

Pazik v. Gateway Regi Sch. Dist., 130 F. Supp 2d

REE GER, BOE, Be erntinccabetasessnivinimiihidscdithiepiadiasiiditnaisaal 14

TABLE OF AUTHORITIES — Continued

Page

Pennhurst State Sch. & Hosp. v. Halderman, 451

|S REESE Se SER en oer eee Seen 27, 28

Rumsfeld v. Forum for Academic & Institutional

Rights, Inc., 126 S. Ct. 1297 (2006)................ cee 28

Sacramento City Unified Sch. Dist. v. Holland, 786

F.Supp. 874 (E.D. Cal. 1992), aff’d, 14 F.3d

1398 (9th Cir. 1994), cert. denied, 512 U.S. 1207

RR AEP RS SE ROE lite PE Se 14

Schaffer v. Weast, 126 S. Ct. 528 (2008)............. 8, 11, 13, 26

Schaffer v. Weast, 377 F.3d 449 (4th Cir. 2004),

EC OD a incre ctesisnntennnsntbcaebtenemenneninesia 14

School Bd. of Nassau County v. Arline, 480 U.S.

al lepidbbiponbnesbeanias 28

S.H. v. State-Operated Sch. Dist., 336 F.3d 260 (3d -

OSIRIS SE ANA Sk SE ere a 11

Shore Reg'l High Sch. Bd. of Educ. v. P.S., 381 F.3d

194 (3d Cir. 2004)... ERE Re Se OO 10

Smith v. Robinson, 468 U.S. 992 (1984) ................. 5, 16, 27

Town of Buriington v. Department of Educ., 471

a enc emensi 5, 18, 21, 22, 29

Warren G. v. Cumberland County Sch. Dist., 190

Te eno 24

West Virginia Univ. Hosps., Inc. v. Casey, 499 U.S.

STE aictindidanthguaiiinkadaansnuidenintustimanigtenss 4, 15, 16, 17, 18

TABLE OF AUTHORITIES — Continued

Page

CONSTITUTION, STATUTES, AND REGULATIONS

ee I INS TAU U SEE, Bit ditisicenteientienictntcbiainsnanaminines 5, 27

Individuals with Disabilities Education Act (IDEA),

20 U.S.C. § 1400 et seq.:

Oe I titi niaeilsiaiatecticedenedihasinihindaliiaeiaiadiceeniia aii iia 7

PE stetcctartatescnttareniaitinninnietccrinnnsitnianiciniiteapelpasininate 18

ETO Titi siipiesijnteinaibinigndildelateenihchermgniiiiandipeiacaadis 11

Sate htieucsiilitesuctenedicnnianidinancisdicncibuihddeiasiibbaiaiaiiledntantnniilatabs 7, 23

Sh SE ETE ssaterssentithcninentapnianasineidteeiidadiaseiaidentibenmiieeiel 23

EERE ee ICES We Ae 8,9

SE a SRR on seen mabe nt 8

Se iticicensuntheniicnispniitiniaiciinticatetiseddteinumaeladadcastiad 9, 26

Se TT ilsinniarinaintepinshdeedatyitiatinabaaaabiieuniitdenasumaiail 20, 22

fe SR ENE E ae SUI Pe passim

eels Oe RD iccncetieshcteibecneitesilesioninstsiniidupiilcsdhiendinealiniiibei 17

RG Oe SINE ichncintinntehicenesinsiintenitblanapiinibinlnatiaiacniaatebiiens 15, 17

34 C.FR.::

See ithiaieitciracipeedicctiansheniscestiieenleinisiniaiunsdiiinsiutipaiediuniniaiaiipania 23

SITET ihiidecisaiiesnibutehinladanccgisidtiieninionies sietitnimiuesiaiadssiananibiainia 23

Sos» cesihsiebincssiiphineiseiniischlaiieciniaistheaesiaiiigumapaindliatsablaite 24

Ses Dcictinttesdetrtediceititcrihtieaisighbasitesliaendpnieiiedbabiotaitontalieiianss 23

SSI aidiieahiniehitinhicinictsieiegsancienininipinniadacinltesiabiianhiiiininininhtliiandiis 23

SpA eeeiinistsiiebinsceclcipisienliamneiencesinnaitiiansipuibistiincciaiteibiduditiniecislitiaat 23

ee ee 25

Education for All Handicapped Children Act of

1975, Pub. L. No. 94-142, 89 Stat. 773 (1975) .............. 18

Handicapped Children’s Protection Act of 1986,

Pub. L. No. 99-372, 100 Stat. 796 (1986):

vii

TABLE OF AUTHORITIES — Continued

MISCELLANEOUS

150 Cong. Rec. S5351 (daily ed. May 12, 2004).................. 9

Brief for United States as Amicus Curiae, Cedar

Rapids Cmty Sch. Dist. v. Garret F., No. 96-1793

I a eee 28

Brief for the United States as Intervenor, M.A. v.

New Jersey Dep't of Educ., No. 02-1799 (3d Cir.

ERENCE ES Sw ee AOR 28

J. Chambers, J. Harr & A. Dhanani, Special

Education Expenditure Project, What Are We

Spending on Procedural Safeguards in Special

Education, 1999-2000? (May 2003)....................c000000++ 7,8

S. Etscheidt, Ascertaining the Adequacy, Scope, and

Utility of District Evaluations, 69 Exceptional

I ID GI ik ci cschtcntndncnaknininasimeiidintioenntedmdanestenin 25

General Accounting Office, Special Education: The

Attorney Fees Provision of Public Law 99-372

IND Scthciratnnntrinactatitvensncneastndaminticbbeeindnhiiicannies 8

Handicapped Children’s Protection Act of 1985:

Hearings on S. 415 Before the Subcomm. on the

Handicapped of the Senate Comm. on Labor and _

Human Resources, 99th Cong. (1985) ..................ccceeeeeeee 8

In ihe Matter of Student v. Poudre School District

R-1, Due Process Hearing L2003:120 (Colo. Feb.

SRR SS 0 RE a ee 11, 12, 13

P. Kuriloff, Js Justice Served by Due Process?:

Affecting the Outcome of Special Education

Hearings in Pennsylvania, 48 Law & Contemp.

Probs. 89 (Winter 1985 No. 1) ...............cceccceeeeeeteeees 12, 13

vill

TABLE OF AUTHORITIES -— Continued

Page

P. Kuriloff & S. Goldberg, Js Mediation a Fair Way

to Resolve Special Education Disputes? First

Empirical Findings, 2 Harv. Negotiation L. Rev.

Se cetciereitciinncbitinsetinitauliviiinainadeniatinsbicaaitn 12,13

Letter to Katzerman, 28 IDELR 310 (OSEP Sept. 9,

TT vccccudnitancedabicsinnpectieadbnininageniminititaanitamietedadesenveienieien 25

Letter to Parker, 41 IDELR 155 (OSEP February

Bes Ic cdlihsesetisdesieniecliininpsitenteheg aiatlarih biatch iia 25

Letter to Young, 39 IDELR 98 (OSEP March 20,

Sai scihasceheniuitest nichatandiadeiansncntinntiiiihiiiahnicdidatiapininnasiuiitiehtiides 25

Maine School Adminstrative District #17, 39

IDELR 281 (Me. Aug. 15, 2003) ...............eccccseeeeeeeeeeeeees 24

National Council on Disabilities, Back to School on

Civil Rights - Advancing the Federal Commitment

to Leave No Child Behind (2000) .............ccccscceeseeeeeeeesees 7

Parents of [Redacted] v. Montgomery County Pub.

Sch., OAH No. MSDE-MONT-OT-04-50271 (Md.

ee Ce le See ercndinseniintetonnnndeteniiatonntsbtagintenencenes 12

E. Schiller, K. Burnaska, G. Cohen, Z. Douglas, C.

Joseph, P. Johnston, A. Parsad & C. Price, Study

of State and Local Implementation and Impact of

the Individuals with Disabilities in Education

Act: Final Report on Selected Findings (2003)................ 7

G. Schultz & J. McKinney, Special Education Due

Process: Hearing Officer Background and Case

Variable Effects on Decisions Outcomes, 2000

ele ee GR Gas Ge EO CI ctcicecnreninitnicctintntinncneinieiimedes 9

Cherie N. Simpson, Parent Perceptions of the

Special Education Due Process Hearings in

SR, TI cccccscsctmasinerpsininsianpinctstnicseensiasarinens 13

ix

TABLE OF AUTHORITIES — Continued

Page

M. Wagner et al., Special Education Elementary

Longitudinal Study (SEELS): The Children We

Serve: The Demographic Characteristics of

Elementary and Middle School Students with

Disabilities and Their Households (2002)..................... 19

M. Wagner et al., The Individual and Household

Characteristics of Youth With Disabilities: A

Report from the National Longitudinal Transition

ENE ERAS a 19

1

INTEREST OF AMICI CURIAE'’

This case is of particular interest to amici, who

advocate on behalf of children with disabilities to ensure

that they receive the free appropriate public education

they are guaranteed under the Individuals with

Disabilities Education Act (IDEA), 20 U.S.C. § 1400 et seq.

Amicus National Disability Rights Network (NDRN),

formerly the National Association of Protection and

Advocacy Systems, is the membership association of

protection and advocacy (P&A) agencies that are located in

all 50 states, the District of Columbia, Puerto Rico, and

the territories. P&As are authorized under various federal

statutes to provide legal representation and related

advocacy services on behalf of persons with all types of

disabilities in a variety of settings. In fiscal year 2004,

P&As served over 76,000 persons with disabilities through

individual case representation and systemic advocacy.

The P&A system comprises the nation’s largest

provider of legally based advocacy services for persons

with disabilities. P&A lawyers often represent or assist

parents of children with disabilities in the impartial due

process hearings authorized under the IDEA and know

first-hand of the need for parents to retain experts if they

are to have a chance of prevailing.

Amicus The Center for Law and Education (CLE) is a

national advocacy organization that works with parents,

advocates, and educators to improve the quality of

education for all students, and in particular, students from

' Letters from the parties consenting to the filing of amicus briefs

have been filed with the Clerk of this Court pursuant to Supreme Court

Rule 37.3(a). No counsel for a party authored this brief in whole or in

part, and no person or entity, other than the amici curiae, their

members, or their counsel, made a monetary contribution to the

preparation or submission of this brief.

2

low-income families and communities. Throughout its

history, CLE has been a recognized leader in advancing

the rights of students with disabilities - from federal

policy through state and local implementation. As one of

the few national organizations that is firmly rooted in both

disability rights and school reform, CLE has focused

increasingly on bringing the two together - in order to

help ensure, for example, that specialized instruction and

support services provided through individualized

education programs, assessment practices, placement

decisions, etc., are aimed at overcoming the barriers for

students with disabilities to meeting high standards,

rather than being vehicles for lower expectations.

CLE has participated in other important cases

involving the recovery by prevailing parents of costs and

fees under IDEA. In 1990, CLE represented members of

the United States Senate and House of Representatives as

amicus in Moore v. District of Columbia, 907 F.2d 165

(D.C. Cir. 1990), in which the U.S. Court of Appeals for the

District of Columbia Circuit en banc recognized a cause of

action under IDEA on behalf of prevailing parents to

attorneys fees incurred in administrative due process

hearings.

SUMMARY OF ARGUMENT

The Individuals with Disabilities Education Act

(IDEA), 20 U.S.C. § 1400 et seg., was enacted to guarantee

children with disabilities the right to a “free appropriate

public education.” 20 U.S.C. § 1400(d)(1A). At issue in

the instant dispute is whether parents of children with

disabilities must effectively waive the right to a “free”

public education when the school district refuses to

provide an “appropriate” one, thereby forcing the parents

to invoke their statutory right to an impartial due process

3

hearing to remedy the deficiency. Because effective

parental participation as contemplated by IDEA should

not come at a cost, Congress in IDEA’s text and structure

has authorized parents who prevail in vindicating their

children’s IDEA rights to be reimbursed for their costs of

obtaining an expert to resist and remedy the school

district’s violation of the law.

A. IDEA accomplishes its substantive statutory

mandate of providing to each child with a disability a free

special education that offers educational benefit through

extensive procedural protections, which ensure constant

parental involvement. Although parents and_ school

districts reach agreement in the overwhelming majority of

IDEA cases through collaborative efforts, genuine

disagreements as to what constitutes an “appropriate”

public education do arise. Congress granted parents in

such circumstances a statutory right to have these

disputes resolved in a due process hearing before an

impartial hearing officer. The ability of parents to retain

experts is critical to these hearings fulfilling their

assigned function of determining the appropriate

education for the child, and reimbursement of prevailing

parents for the costs of experts is necessary to enable

parents to retain them.

Notwithstanding the parent-school district

cooperative goals of IDEA, due process hearings are

unquestionably adversarial. The school district and

parents each have their own perspective as to what

constitutes the appropriate education of the child. As this

Court has recognized, when IDEA cases turn adversarial,

the school district is armed with greater resources, more

information, and employees that it can rely on to testify as

experts. Yet the parents generally bear the burden of

showing that the school district’s proposal is

inappropriate.

4

Empirical evidence and case law, as well as amici’s

experiences working with thousands of parents of children

with disabilities, demonstrate that the most important

resource for parents in ensuring that their children receive

a free appropriate public education is access to experts

with whom parents can consult. Expert testimony and

consultation are effectively required to sustain the

parents’ burden on many critical issues in due process

hearings. Without the benefit of expert resources to

present factual evidence and context and to assist the

parents in challenging the school district’s experts,

parents of children with disabilities simply have little

chance of prevailing in a due process hearing even if they

are correct.

B. Congress has addressed this issve by authorizing

parents of children with disabilities who prevail in a due

process proceeding to recover the expert fees expended in

securing a free appropriate public education for their

children. See 20 U.S.C. § 1415(i)(3)(B). In enacting that

provision in the Handicapped Children’s Protection Act of

1986, Congress explicitly contemplated that IDEA’s cost-

shifting provision would award prevailing party parents

costs incurred “by personnel, including attorneys and

consultants, involved in the action or proceeding.” Pub. L.

No. 99-371 § 4(b\(3), 100 Stat. 796, 797-798 (emphasis

supplied). Because of this congressional action, costs

awarded under IDEA thus are not limited to those deemed

permissible in West Virginia University Hospitals, Inc. v.

Casey, 499 U.S. 83 (1991).

This result is further reinforced by IDEA’s broad grant

of remedial authority to district courts and the structure of

the statute. IDEA guarantees a “free” education for

children with disabilities, and expects parental

involvement to ensure that this education is “appropriate.”

5

Parents are afforded the right to participate at every stage

of the IDEA process, and to be accompanied by their own

expert at a due process hearing. This opportunity to

participate would be meaningless, however, if the parents

were required to pay thousands of dollars from their own

pockets in order for their child to receive the “free” public

education guaranteed by the statute. As this Court has

recognized, IDEA’s mandate of providing “free appropriate

public education” would be eviscerated if parents were

required to choose between a “free” education and an

“appropriate” one. Town of Burlington v. Department of

Educ., 471 U.S. 359, 371 (1985).

C. Finally, there is no reason for this Court to depart

from its well-established Spending Clause jurisprudence

and construe IDEA narrowly. As this Court has held in the

context of IDEA, all that the Spending Clause requires is

that entities receiving federal funds have notice that

conditions are attached to the acceptance of such funds.

See Irving Independent Sch. Dist. v. Tatro, 468 U.S. 883,

890 n.6, 891 & n.8 (1984); Smith v. Robinson, 468 U.S.

992, 1002 n.6 (1984). IDEA has unquestionably satisfied

that requirement, and this Court’s decisions in Town of

Burlington and Florence County School District v. Carter,

510 U.S. 7 (1993), confirm that a narrow construction of

IDEA’s remedies is unwarranted.

ARGUMENT

IDEA AUTHORIZES COURTS TO AWARD PARENTS

OF CHILDREN WITH DISABILITIES EXPERT FEES

AS PART OF COSTS WHEN THEY ARE PREVAILING

PARTIES IN IDEA ADMINISTRATIVE OR JUDICIAL

PROCEEDINGS

The core of the Individuals with Disabilities

Education Act (IDEA), 20 U.S.C. § 1400 et seq., is the

6

substantive requirement that every State that accepts

federal IDEA funds must provide each child with a

disability a free appropriate public education tailored to

accommodate their disabilities and to achieve educational

benefit. See Board of Educ. v. Rowley, 458 U.S. 176, 209

(1982). This substantive standard necessarily requires

reliance on a wide range of experts to take into account the

diverse array of disabilities and the almost unique

circumstances of each child.’

If parents disagree with the school district; are able to

afford to retain their own experts in order to contest what

they perceive as the school district’s proposal for an

inadequate and inappropriate educational program; and

prevail in convincing an impartial hearing officer (or

court) that the school district’s proposal does not comply

with the requirements of the statute, the parents should

be able to recover the reasonable costs expended on such

experts from the school district.

A. Experts Are Critical To Parents’ Ability To

Ensure That Their Children Receive A

Free Appropriate Public Education

Parents know their children in different and more

profound ways than anybody else. Parents have had years

living with, observing, understanding, and responding to

their children. In view of this reality, Congress thus

guaranteed parents of a child with a disability a formal

role in the development of the child’s individual education

program. The efficacy of IDEA relies on parents to

advocate on behalf of their children and to demand

compliance with the law. See Rowley, 458 U.S. at 205-206;

* Experts in due process hearings can include special education

administrators, researchers, psychologists, doctors, nurses, audiologists

or speech language pathologists, occupational or physical therapists,

behavioral experts, and other specialists with particular knowledge of

_ disabilities and educational practices.

7

National Council on Disabilities, Back to School on Civil

Rights - Advancing the Federal Commitment to Leave No

Child Behind, at 6-7, 50, 70 (2000).

If the parents and the school district cannot reach a

consensus, Congress gave the parents a right to demand a

due process hearing before an impartial hearing officer

and, if still aggrieved, review by federal or state courts.

See 20 U.S.C. § 1415. These due process safeguards are

intended to give parents the “necessary tools to improve

educational results for children with disabilities.” Jd.

§ 1400(d)(3). Congress also enacted provisions to deter and

sanction frivolous claims and to encourage reasonable

settlements. See id. §§ 1415(i)(3)(D) & (F), 14154)(3)(BXDUD

& (III).

These procedures are rarely invoked by parents.

Rather, most disputes under IDEA are resolved through

collaborations between parents and school officials. In

any given year, the overwhelming majority of school

districts (94%) do not hold any due process hearings.’ Of

the more than 6 million children with disabilities entitled

to IDEA’s protection, approximately 3000 due process

hearings are held each year. Parents prevail in

approximately 43% of such hearings.’ Less than 10% of

* E. Schiller, K. Burnaska, G. Cohen, Z. Douglas, C. Joseph, P.

Johnston, A. Parsad & C. Price, Study of State and Local Implementa-

tion and Impact of the Individuals with Disabilities in Education Act:

Final Report on Selected Findings 45 (2003).

* In 2000, although there were 11,068 requests for hearings, only

3,020 hearings were actually held nationwide, a 15% decline over the

previous five years. General Accounting Office, Special Education:

Numbers of Formal Disputes Are Generally Low and States Are Using

Mediation and Other Strategies to Resolve Conflicts (GAO-03-897), at

12-13 (2003).

* J. Chambers, J. Harr & A. Dhanani, Special Education

Expenditure Project, What Are We Spending on Procedural Safeguards

(Continued on following page)

8

due process hearing results are appealed to court (by

either parents or school districts) — about 300 cases

annually.°

1. Due process hearings are structured

to make it necessary for parents to

retain their own experts

Due process hearings are, by design, adversarial.

Hearings are to be conducted according to “appropriate,

standard legal practice.” 20 U.S.C. §1415(f)(3)(A)iii); see

also Handicapped Children’s Protection Act of 1985:

Hearings on S. 415 Before the Subcomm. on tie

Handicapped of the Senate Comm. on Labor and Human

Resources, 99th Cong. (1985) (Statement of Sen. Simon)

(“[Due process] hearings — where witnesses are called and

sometimes technical and medical evidence is offered — are

quasi-judicial.”). The object of these quasi-judicial due

process procedures is to develop a complete and accurate

factual record and to obtain a prompt decision by an

impartial expert decisionmaker.

When a due process hearing is held at the request of

the parent, the parent will (absent state law to the

contrary) normally bear the burden of proof of showing

that the school district’s proposal does not comply with

IDEA. See Schaffer v. Weast, 126 S. Ct. 528, 536 (2005).

Parents have the right (indeed, the obligation if they wish

to meet their burden of proof) to present evidence and to

examine and cross-examine witnesses. 20 U.S.C.

in Special Education, 1999-2000?, at 20 (May 2003); General

Accounting Office, Special Education: The Attorney Fees Provision of

Public Law 99-372 (HRD-90-22BR), at 3 (1989).

* Only 301 court cases under IDEA were filed nationwide in the

1998-99 school year, while 3,315 and 3,126 due process hearings were

held in 1998 and 1999, respectively. Chambers, Harr & Dhanani, supra,

at 7-8.

9

§ 1415(h). Parents are afforded a right to be represented

by counsel, if they can locate and afford one. 7d.

§ 1415(h)(1).’ Additionally, parents have a right “to be

accompanied and advised * * * by individuals with special

knowledge or training with respect to the problems of

children with disabilities.” bid.

The law requires an impartial hearing examiner with

appropriate qualifications and expertise in the law. 20

U.S.C. § 1415(f(3)(A)ii)-(iv). Hearing officers may be

expert in administrative law and educational law, but are

not required to possess expertise in the unique disability

issues involved in any particular case. Jbid.; G. Schultz &

J. McKinney, Special Education Due Process: Hearing

Officer Background and Case Variable Effects on Decisions

Outcomes, 2000 B.Y.U. Ed. & L. J. 17, 21-22 (2000) (most

hearing officers have no background on disability issues).

2. Experience shows that experts are critical

to parents’ chances of demonstrating in

a due process hearing that the school

district erred

IDEA’s extensive procedural protections for parents to

ensure their involvement in the development of an

individualized education program (IEP) are driven by the

proposition that these processes will provide a crucible

* Even with the addition of a statutory provision in 1986

permitting a court to award attorney’s fees to a prevailing parents,

parents still are disproportionately unrepresented in due process

proceedings compared to school districts. For example, in New York

parents are represented by lawyers in 31% of proceedings while school

districts are so represented in 100% of proceedings; in Illinois, parents

have lawyers in 35% of proceedings and school districts have lawyers in

91% of proceedings. 150 Cong. Rec. S5351 (daily ed. May 12, 2004)

(Statement of Sen. Kennedy).

10

from which a child’s appropriate education will emerge.

Yet parents’ assertion of their child’s procedural rights is

not sufficient to assure an appropriate education. The

consensus of the empirical studies and the case law, which

amici can confirm based on their own experience working

with thousands of parents, is that those procedural

protections are virtually meaningless if parents do not

introduce expert evidence or do not have experts assisting

them in presenting their case.

When the question at issue in a hearing is the

“appropriate” education for a particular child, the burden

on parents includes presenting knowledge about the

child’s disability;* the child’s present level of achievement,

including his abilities and assessments, evaluations, and

function in school settings;’ the child’s specific educational

needs (e.g., placement and services); and the capacity of

the proposed educational program to address the child’s

disability, enable the child to achieve the proposed

educational goals, and provide educational benefit.” In

this type of inquiry, parents who do not have access to

experts cannot effectively present facts in support of their

* Shore Reg'l High Sch. Bd. of Educ. v. P.S., 381 F.3d 194 (3d Cir.

2004) (expert testimony as to needs of emotionally disturbed child and

appropriate placement).

* Nein v. Greater Clark County Sch. Corp., 95 F. Supp. 2d 961 (S.D.

Ind. 2000) (parent’s expert testified as to student’s progress and

requisite expertise for teachers of dyslexic students).

” Evans v. Board of Educ., 930 F.Supp. 83 (S.D.N.Y. 1996)

(parent's experts on dyslexia presented uncontroverted evidence that

recommended method of instruction was necessary, not merely

optional).

" Board of Educ. v. Michael M., 95 F. Supp. 2d 600, 610 (S.D. W.

Va. 2000) (experts needed on issue of reasonable goals).

11

position, thus defeating the very purpose of the hearing.

Such parents are, indeed, left “without an expert with the

firepower to match the opposition,” Schaffer, 126 S. Ct. at

536, and have little hope of carrying the burden required

to prevail, no matter how meritorious their position.” The

need for experts was heightened by a 2004 amendment to

IDEA, which imposed a new requirement that special

education must be “based on peer-reviewed research to the

extent practicable.” 20 U.S.C. § 1414(d)(1)(A\(iX TV). Under

this criterion, parents also must present evidence

regarding the educational options available that are

appropriate for that child, the research regarding the

generally acceptable methodologies being used to educate

similar students, and whether the proposed program is

generally accepted by the educational! community or

recognized by educational experts as reasonable.”

By contrast, a parent’s special knowledge about his or

her child is rarely credited in such proceedings, no matter

how relevant. Parents may have well-informed knowledge

and beliefs as to their child’s needs, not to mention a

* In the Matter of Student v. Poudre Sch. Dist. R-1, Due Process

Hearing L2003:120 (Colo. Feb. 11, 2004), http://www.cde.state.co.us/

spedlaw/download/DP2003-120.pdf (when a parent “produced no

testimony other than her own” regarding child’s emotional distress due

to placement, and need for classroom aide the parent “did not sustain a

defense to the onslaught of educational and psychological experts from

the district”).

” Michael M, 95 F.Supp. at 610 (experts should opine whether

methodology is recognized by educational experts and generally

accepted in the educational community for similar children); S.H. v.

State-Operated Sch. Dist., 336 F.3d 260, 267 (3d Cir. 2003) (“In this

particular matter [appropriate placement], the credibility and

persuasiveness of the testimony is of paramount concern” and parent's

expert was persuasive because she was “impeccably credentialed” in

deaf education — “no one connected with the hearing knew more about

deaf education than she”).

12

wealth of personal experience with their own child, but

parental testimony is all too often discredited as merely

“anecdotal” or not objective evidence. Hearing officers

and courts may comment on the knowledge of parents

about their children, but they do not treat them as

qualified experts, even when their knowledge of their

child’s disability plainly exceeds that of the school

personnel. Indeed, in many cases, parents’ testimony is not

even treated as evidence.”

A study of due process hearing outcomes found that

the single best predictor of whether a parent will prevail

in a due process hearing is the number of witnesses the

parents call. See P. Kuriloff, Js Justice Served by Due

Process?: Affecting the Outcome of Special Education

Hearings in Pennsylvania, 48 Law & Contemp. Probs. 89,

100-101, 109 (Winter 1985 No. 1). Such parents “won more

often” because they could use their witnesses to “present| |

their cases more effectively, and cross-examine[] the

school’s witnesses more thoroughly.” P. Kuriloff & S.

Goldberg, Js Mediation a Fair Way to Resolve Special

* See, e.g., Parents of [Redacted] v. Montgomery County Pub. Sch.,

OAH No. MSDE-MONT-OT-04-50271 at 25-26, (Md. OAH Dec. 21,

2004), http://www.msde.md.gov/NR/rdonlyres/AE1F478C-AB7F-407F-

85C8-CEC950B8C836/4993/04HMONT50271 pdf (granting school

district’s motion to dismiss before putting on school evidence: “Parents’

evidence of the Child’s development and progress * * * during that

period was primarily anecdotal and was supplied largely by the mother.

* * * There was evidence * * * that she has some background as an

educator, although she was not qualified as an expert in special

education or other fields germane to the Child's learning disabilities.”).

* See, e.g., Poudre, supra (parent testimony as to emotional

response of child to placement discredited because it “lacks the support

of an expert”); [Redacted] v. Baltimore City Pub. Sch., OAH NO: MSDE-

CITY-OT-200200192 (June 26, 2002), http/Awww.msde.md_us/SpecialEducation/

hearing_decisions2002/02-H-CITY-192.pdf (testimony of guardian and

student characterized as “not factual] evidence;” school district granted

summary judgment without presenting evidence).

13

Education Disputes? First Empirical Findings, 2 Harv.

Negotiation L. Rev. 35, 40 (Spring, 1997). Indeed, the

number of witnesses called by the parents correlated with

successful outcomes even more than whether the parents

were represented by counsel. See Kuriloff, supra, at 100.

Normally, however, school districts can, and do, “call

on many more experts in developing their arguments than

can the average parent.” Kuriloff & Goldberg, supra, at 62.

Twice as many witnesses in due process hearings testify

for the school district, on average 4.5 witnesses for the

school, and only 2 for the child. Furthermore, in one

study, the parents’ witnesses typically consist of the child’s

mother and one other witness.” The cause for this

disparity is due to the fact that school districts largely

employ the Jexperts throughout the special education

procedural process. “School districts have a ‘natural

advantage’ in information and expertise * * * .” Schaffer,

126 S. Ct. at 536; Oberti v. Board of Educ., 995 F.2d 1204,

1219 (3d Cir. 1993). School experts are already on staff -

teachers, psychologist, the special education director,

speech language pathologists, physical therapists, etc. —

and available to testify at the due process hearings. In

most cases, virtually all school system witnesses are

treated as experts by hearing officers.”

* Cherie N. Simpson, Parent Perceptions of the Special Education

Due Process Hearings in Michigan, 1980-1981, pp. 127-130, 212 (1984)

(Ph.D. dissertation, Michigan State University) (on file with Michigan

State University Microfilms).

" Ibid.

* Michael M., 95 F. Supp. 2d, at 611 (S.D. W. Va. 2000) (classroom

teachers described as experts); Clay T. v. Walton County Sch. Dist., 952

F.Supp. 817, 823 (M.D. Ga. 1997) (same); Poudre, supra, at 16

(teachers are educational experts).

14

Reflecting this reality, courts have consistently

acknowledged that expert testimony is necessary in order

for a parent to have a chance of showing that the school

district is not complying with the law. Thus, the Fourth

Circuit held in the Schaffer case, that “parents will have to

offer expert testimony” in order to “mount a serious,

substantive challenge to an IEP.” Schaffer v. Weast, 377

F.3d 449, 456 (4th Cir. 2004); see also Oberti, 995 F.2d at

1216 (3d Cir. 1993) (“The court will have to rely heavily

***on the testimony of educational experts.”); Pazik v.

Gateway Reg’l Sch. Dist., 130 F. Supp 2d 217, 22 (D. Mass.

2001) (“(E)xpert testimony is often critical to a case.”).

An illustrative case involved 9-year old Rachel

Holland, who was classified as moderately retarded.” The

school proposed that she spend most of her day in a

segregated special education classroom. Her parents

requested a full-time placement in a regular classroom,

based on success she had shown over several years in a

private school classroom while the due process case was

pending. In weighing the testimony of the expert

witnesses for both sides, the court found the parents’

witnesses to be more credible because they had more

background in evaluating similar children in regular

classrooms, and they had a greater opportunity to observe

Rachel in a normal academic setting. The court concluded

that Rachel would experience significant academic and

nonacademic benefits from the mainstream placement.

The hearing officer, federal district judge, and federal

circuit court all ruled for the parents over the course of the

five-year legal ordeal. Without expert assistance, the

parents undoubtedly would not have been able to obtain

* Sacramento City Unified Sch. Dist. v. Holland, 786 F. Supp. 874

(E.D. Cal. 1992), aff’d, 14 F.3d 1398 (9th Cir.), cert. denied, 512 U.S.

1207 (1994).

15

what all the impartial decisionmakers agreed was the

appropriate placement for their child.

B. IDEA’s Structure And Text Convey Broad

Authority To District Courts To Provide

Any Appropriate Relief To A Prevailing

Party, Including Awarding Parents The

Costs Of Obtaining An Expert

The empirical evidence and case law demonstrate a

clear need by parents to retain their own experts. But the

structure and purpose of IDEA evince as well a clear

mandate on the part of Congress to permit district courts

to award litigation expenses, including expert and

consultant fees, to prevailing party parents. 20 U.S.C.

§ 1415(i)(3)(B). IDEA thus ensures that a lack of parental

resources will not prevent the vigorous enforcement of the

law against an errant school district.

1. Casey does not control the proper

interpretation of the term “costs” in

IDEA

Absent congressional action, the range of costs

ordinarily recoverable to a party prevailing in federal

court are limited to those enumerated at 28 U.S.C. §§ 1920

and 1821(b). See West Virginia Univ. Hosps., Inc. v. Casey,

499 U.S. 83, 86 (1991); Crawford Fitting Co. v. J.T.

Gibbons, Inc., 482 U.S. 437, 439 (1987). But this Court has

also recognized that the use of the term “costs” is not

inflexible across all public laws, and that Congress can

authorize, and in fact has on numerous occasions, the

award of expert fees to the prevailing party in a federal

action. See Casey, 499 U.S. at 89. The language allowing

for the recovery of such fees can take a variety of forms, so

16

that there are no “magic words” that Congress must

universally employ. See id. at 88-92 (noting that expert

fees can be authorized by provisions that define, provide

context, or separately authorize the expert fees).

As respondents demonstrate more fully, both the text

and structure of IDEA reflect Congress’s intent that the

specific litigation expenses that can be recovered by

prevailing party parents include expert fees. Congress

enacted the Handicapped Children’s Protection Act of

1986, Pub. L. No. 99-372, 100 Stat. 796 (1986), which

initially added what is now Section 1415(i)(3)(B) to IDEA,

in response to this Court’s decision in Smith v. Robinson,

468 U.S. 992 (1984), which held that prevailing party

parents could not recover attorney's fees in special

education cases.

In so doing, Congress was cognizant of the financial

responsibilities IDEA already imposed upon state and

local governments. Accordingly, in expanding the remedies

available to prevailing parents by authorizing awards of

costs incurred during the due process and judicial

proceedings, Congress mandated in Section 4 of the

Handicapped Children Protection Act that the then-

General Accounting Office (GAO) study the “impact” of

Section 1415(i)(3)(B) over a three-and-a-half-year period

following the Act’s effective date. Pub. L. No. 99-372 § 4,

100 Stat. at 797. In this report, the GAO was required to

examine “the specific amount of attorney’s fees, costs, and

expenses awarded to the prevailing party” under Section

1415(i3)(B) and “the number of hours spent by personnel,

including attorneys and consultants, involved in the action

or proceeding” where such fees were awarded. Jd. § 4(b)(3)

(emphases supplied). This statutory language demonstrates

that, in enacting Section 1415(i)(3B), Congress understood

that expert (i.e., consultant) fees would be paid by school

districts to prevailing party parents and thus required

17

examination. Had Congress intended to award to

prevailing party parents only attorney's fees and those

costs set forth in 28 U.S.C. §§ 1920 and 1821(b), there

simply would have been no need for Congress to order, by

statute, the GAO to study “expenses” and “the number of

hours spent by * * * consultants” in cases where such costs

were awarded to parents under Section 1415(i)(3)(B) in

addition to “attorney’s fees [and] costs.” Pub. L. No. 99-

372, § 4(b)(3), 100 Stat. at 797-798.

In arguing for a more narrow interpretation of IDEA,

petitioner and its amici would have the Court disregard

that language of Section 4 of the Handicapped Children’s

Protection Act and, in turn, the very canon of statutory

construction that caused the Court to reach the result it

did in Casey: that no term in a statute can be found to

“add nothing.” 499 U.S. at 91. Accordingly, the narrow

construction of recoverable “costs” set forth in Casey and

Crawford plainly cannot apply to IDEA.”

2. Excluding expert fees from the term

“costs” in IDEA would be contrary to

IDEA’s structure and purpose

Moreover, Section 1415(i)3)(B) “must be read in

context” of the rest of the Act. Hibbs v. Winn, 542 U.S. 88,

101 (2004) (“[Wle follow ‘the cardinal rule that statutory

language must be read in context [since] a phrase gathers

* In any event, to the extent the statutory language is only

ambiguous rather than dispositive for respondents (which, at

minimum, it must be if the language in Section 4 of the Handicapped

Children’s Protection Act is to have any meaning), this Court should

look to the legislative history of the Act to discern congressional intent.

As respondents demonstrate, this legislative history unquestionably

confirms the common-sense understanding - that Congress intended

expert fees to be recoverable as a part of costs. Indeed, this Court

acknowledged in Casey that Congress intended an expansive reading of

“costs” to apply to IDEA actions. See 499 U.S. at 91 n.5.

18

meaning from the words around it.’”) (quoting General

Dynamics Land Sys., Inc. v. Cline, 540 U.S. 581, 596

(2004)). Any interpretation of Section 1415(i)(3)(B) as not

including an award of expert fees would create significant

inconsistencies within IDEA’s structure and purpose.

Unlike the provision in Casey, Section 1415(i)(3)(B) is

not a stand-alone fee-shifting provision addressing a

number of different statutes. Thus, it must be construed in

accordance with IDEA’s overall mission of ensuring a “free

appropriate public education” to children with disabilities.

20 U.S.C. § 1400(d)(1)(A). Indeed, IDEA and its predecessor

statute (the Education for All Handicapped Children Act of

1975, Pub. L. No. 94-142, 89 Stat. 773 (1975)) were enacted

to remedy a specific public problem — that “the educational

needs of millions of children with disabilities were not

being fully met” in public schools, either because they were

“([being] excluded entirely from the public school system”

or “not receiv[ing] appropriate educational services.” 20

U.S.C. § 1400(c)(2)(A), (B), (C).

IDEA was enacted to provide these children with a

remedy from their previous exclusion and mistreatment.

The statute defines the “special education” the school

district is required to provide as a “specially designed

instruction, at no cost to parents, to meet the unique needs

of a child with a disability” 20 US.C. § 1401(29)

(emphasis supplied). To ensure that an education is

appropriate for that child’s unique needs, parents are

expected to participate at every stage of the procedures

required to design the child’s special education. See Town

of Burlington v. Department of Educ., 471 U.S. 359, 368-

369 (1985). IDEA thus expands “the role * * * of parents

and ensurles] that families of such children have

meaningful opportunities to participate in the education of

their children at school.” 20 U.S.C. § 1400(c)\5\B)

19

(emphasis supplied). This opportunity to participate would

be meaningless, however, if the parents were required to

pay thousands of dollars from their own pockets in order

for their child to receive the “free” public education

guaranteed by the statute.

This is a cost parents of children with disabilities are

least able to bear, yet unable to forego. Parents of children

with disabilities are often the least equipped to address

independently the needs of their children. These parents

are 50 percent more likely to have only a high school

education or less when compared to the parents of

students in the general population, and their college

graduation rate is two-thirds that of other parents. See M.

Wagner et al., Special Education Elementary Longitudinal

Study (SEELS): The Children We Serve: The Demographic

Characteristics of Elementary and Middle School Students

with Disabilities and Their Households 23-24 (2002).

Parents of children with disabilities also come from

economic circumstances which would likely limit their

ability to pay for experts in the absence of the opportunity

of recovering costs if they are successful. Almost one

quarter of children with disabilities are living in poverty,

compared with 16 percent in the general population. See

Wagner, supra, at 28. And parents of children with

disabilities are a staggering 67 percent more likely to be

unemployed. See M. Wagner et al., The Individual and

Household Characteristics of Youth With Disabilities: A

Report from the National Longitudinal Transition Study-2 -

(NLTS-2) at 3-4 (2003). Overall, 65 percent of children

with disabilities live in households with incomes less thr a

$50,000, compared to only 45 percent of nondisa’ ed

children. Jd. at 3-5. It is simply unrealistic to expect chat

these parents could afford the “appropriate” education for

their children with disabilities on their own.

20

Parents with adequate financial resources may be

able to hire the necessary experts to help develop and, if

necessary, to present their factual case in a due process or

judicial proceeding. But if families do not have the

resources to retain such experts, a school district could, in

light of the burden of proof, rest its case without

presenting any evidence or witnesses in support of the

IEP, and prevail. To deny such families effective access to

expert witnesses diminishes the rights of those children,

rather than protecting them.

The need for expert advocacy to protect the

rights of the child is undeniable and undisputed.

The fundamental purposes of the IDEA are

attainable only when disabled children can rely

on the support of expert witness testimony in due

process proceedings. *** The IDEA does not

limit its benefits to only those who can afford to

recoup them. Quite the contrary, the IDEA seeks

to ensure that all disabled children, whether rich

or poor, receive a free appropriate public

education designed to meet their unique needs.

Neosho R-V Sch. Dist. v. Clark, 315 F.3d 1022, 1039 (8th

Cir. 2003) (Pratt, J., dissenting).

3. IDEA’s other remedial provisions,

including Congress’s mandate that

courts “grant such relief as the court

determines is appropriate,” confirm

the authorization to award expert fees

Parents ultimately can enforce their entitlement to a

free appropriate public education in a civil action, and,

along with costs that can be awarded pursuant to Section

1415(i(3)(B), a court of competent jurisdiction also “shall

grant such relief as the court determines is appropriate.”

20 U.S.C. § 1415(i)(2)(C)(iii). When construing IDEA, this

21

Court consistently has interpreted the broad remedial

language of the statute in favor of parents whose children

wrongfully have been denied a free appropriate public

education. Courts must ensure that the education is both

“free” and “appropriate.” “The Act was intended to give

handicapped children both an appropriate education and a

free one; it should not be interpreted to defeat one or the

other of those objectives.” School Comm. of the Town of

Burlington v. Department of Educ. of Mass., 471 U.S. 359,

371 (1985). ;

IDEA’s purpose would be defeated if prevailing party

parents could not recover the cost of expert fees expended

for due process and judicial hearings. IDEA’s objective that

parents of children with disabilities participate in

designing their child’s free appropriate public education,

and seek redress if the school district will not provide it,

weuld be significantly impaired if they were required to

pay when the school district failed to meet its obligation.

This Court has rejected interpreting IDEA’s remedial

provisions in a manner that “would defeat this statutory

purpose.” Florence County Sch. Dist. v. Carter, 510 U.S. 7,

14 (1993). In Town of Burlington, this Court took note of

the fact that the administrative and judicial process

regarding the placement of a child can take years, during

which time, under the school district’s view, parents were

faced with the Hobson choice of leaving their child in a

school district’s proposed placement “to the detriment of

their child if it turns out to be inappropriate or pay for

what they consider to be the appropriate placement.” 471

U.S. at 370. The Court concluded that “[iJf that were the

case, the child’s right to a free appropriate public

education, the parents’ right to participate fully in

developing a proper IEP, and all of the procedural

safeguards would be less than complete.” /bid. Thus,

Congress “undoubtedly” could not have intended that

22

result. Ibid. The “appropriate” relief under Section

1415(i2)(B) must include “retroactive reimbursement to

parents” whose children were inappropriately placed. Jbid.

Likewise, in Carter, parents of a child with a disability

challenged a school district’s IEP and placed their child in

a private school. The school district’s IEP ultimately

proved inappropriate under IDEA, but the school district

still refused to reimburse the parents on the grounds that

the private school did not meet some of IDEA’s technical

requirements, such as employing only certified teachers,

even though the private school unquestionably “provided

an education otherwise proper under IDEA.” Carter, 510

U.S. at 12-13. The Court rejected the school district’s

argument because those technical requirements “do not

make sense in the context of a parental placement.” Jd. at

13. The Court held: “IDEA was intended to ensure that

children with disabilities receive an education that is both

appropriate and free. To read the provisions of [IDEA] to

bar reimbursement in the circumstances of this case would

defeat this statutory purpose.” Jd. at 13-14 (internal

citation omitted).

Respondents here ask for no more or no less of this

Court. An interpretation of IDEA which required parents

to bear these costs in helping (or, as is sometimes the case,

in compelling) the school district craft an appropriate

education for their children would defeat the mandate that

such an education be free as well. See id. at 14; Town of

Burlington, 471 U.S. at 371. IDEA, when viewed as a

whole, must be interpreted to permit prevailing party

parents, who were wronged by the inappropriate

placement of their children, to recover fees that were

expended in securing the appropriate education IDEA

guarantees. See Hibbs, 542 U.S. at 101.

23

4. The “independent educational evaluation

of the child” authorized by IDEA does not

obviate the need for parents to obtain

reimbursement for expert fees

Petitioner suggests that prevailing parents do not need

reimbursement for their own experts because IDEA

effectively provides a free one to the parents in the form of

an “independent educational evaluation.” See Pet. Br. 6, 31-

32. This argument rests upon a flawed understanding of the

independent educational evaluation, which as a practical

matter is extremely difficult for parents to obtain, and this

Court’s dictum in Schaffer. The so-called “right” to an

independent educational evaluation is, at best, extremely

limited, and was not intended to meet parents’ needs for

expert assistance in a due process hearing.

a. Section 1415 of IDEA grants parents of children

with disabilities the “opportunity *** to obtain an

independent educational evaluation.” 20 U.S.C. § 1415(b)(1).

The term “educational evaluation” is a term of limitation

under IDEA. The scope of an evaluation under IDEA

generally is limited to gathering information and testing

data regarding whether a child is or continues to be

disabled and their educational needs. 34 C.F.R. § 300.532.

An evaluation may not determine matters such as

eligibility, educational goals, placement or services, since

those decisions are the province of an eligibility committee

or the IEP team. See id. §§ 300.343-344, 300.533-534. For

the same reason, an educational evaluation does not

review the school district’s proposed IEP, placement, or

services, since those matters are to be determined by

others after the evaluation. Most courts have also limited

parents to a single evaluation, regardless of the nature of

the dispute between the parents and the school district.

24

See Warren G. v. Cumberland County Sch. Dist., 190 F.3d

80, 87 n.4 (3d Cir. 1999); Hudson v. Wilson, 828 F.2d 1059,

1065-1066 (4th Cir. 1987).”

b. The Department of Education’s implementing

regulations place further limits on the independent

educational evaluation. The regulations provide that such

an evaluation shall be “at public expense” only “if the

parent disagrees with an evaluation obtained by [the

school].” 34 C.F.R. § 300.502(b)(1). If parents agree with

the evaluation, but disagree with the subsequent proposed

IEP or the proposed placement or services, they may not

obtain an independent educational evaluation at public

expense.

Furthermore, a school district need not reimburse

parents for an independent educational evaluation if the

earlier evaluation conducted by the district was

“appropriate.” 34 C.F.R. § 300.502(b)(2\i). Many courts

have placed the burden on the parents to show at a due

process hearing that the school district’s evaluation is

inappropriate. See Ford v. Long Beach Unified Sch. Dist.,

291 F.3d 1086, 1089-1090 (9th Cir. 2002); Holmes v. Mill

Creek Twp. Sch. Dist., 205 F.3d 583, 590-592 (3d Cir.

2000); John M. v. Board of Educ., 2002 U.S. Dist. LEXIS

10931, at *29-31 (N.D. Ill. 2002); Judith S. v. Board of

Educ., 1998 U.S. Dist. LEXIS 11072, at *17 (N.D. Ill. July

14, 1998); Maine Sch. Admin. Dist. #17, 39 IDELR 281

(Me. Aug. 15, 2003).” Of course, without paying for a

* One court has held that parents are entitled to obtain only one

evaluation for each evaluation conducted by the public agency. See

Board of Educ. of Murphysboro v. Illinois State Bd. of Educ., 41 F.3d

1162, 1169 (7th Cir. 1994).

* At least one court has suggested that the parents must “identify

particular omissions in the sciool district’s case study evaluation and

then show how these omissions prevented the district from developing

an adequate program of specialized instruction” for the child in order to

obtain reimbursement. Judith S., 1998 U.S. Dist. LEXIS 11072, at *17.

(Continued on following page)

25

private evaluation and an expert of their own, parents are

unlikely to be able to meet this burden.

Courts have also denied reimbursement if the location

of the evaluation and the qualifications of the examiner do

not meet the criteria set by the public agency for their own

evaluations.”

c. Neither the statute nor the regulations require

that the evaluator consult with the parents, or provide the

results directly to the parents. To the contrary, a common

practice is for the expert used in an independent

educational evaluation to provide the results of his

evaluation first to the school district, even without the

parents’ consent, see Letter to Katzerman, 28 IDELR 310

(OSEP Sept. 9, 1997), which in turn provides the

evaluation to the parents.

Some hearing officers have held parents to an even tougher standard,

denying reimbursement for an evaluation when the school district’s

evaluation has met certain procedural requirements (use of unbiased

test by trained examiner under proper test procedures), regardless of

whether the result is “correct.” See S. Etscheidt, Ascertaining the

Adequacy, Scope, and Utility of District Evaluations, 69 Exceptional

Children 227, 240 (2003).

® See Johnson v. Metro Davidson County Sch. Sys., 108 F. Supp. 2d

906, 920 (M.D. Tenn. 2000); Judith S., 1998 U.S. Dist. LEXIS, at *17-

18; Das v. McHenry Sch. Dist. #15, 1994 U.S. Dist. LEXIS 315, at *10-

11 (N.D. Ill. Jan. 13, 1994). The Department of Education’s Office of

Special Education Programs has interpreted IDEA to allow a public

agency to require parents seeking an independent educational evalua-

tion to use evaluators on an agency-provided list unless the parents can

show that an alternative evaluator meets agency criteria or can

“demonstrate that unique circumstances justify the selection of an

evaluator that does not meet agency criteria.” Letter to Parker, 41

IDELR 155 (OSEP February 20, 2004); see also Letter to Young, 39

IDELR 98 (OSEP March 20, 2003); 64 Fed. Reg. 12,406, 12,607 (1999)

(to be codified at 34 C.F.R. 300.502) (“Since public agencies must

provide parents with information about where IEEs may be obtained,

provided the options are consistent with §§ 300.530-536, public agencies

have some discretion in the cost if it is at public expense.”).

26

d. Petitioner reads Schaffer as prescribing a broader

role for an independent educational evaluation. But it

ignores that in Schaffer, the issue before this Court was

whether the parents or the school district had the burden

of proof in a due process hearing challenging an IEP. The

Court noted that the parents’ “most plausible argument”

was that, because the school district possessed all the

information, the school district, rather than the parents,

should be required to affirmatively prove its case. 126

S. Ct. at 536. The Court rejected this argument because

Congress has required school districts “to share

information with” parents. Jbid. The independent

educational evaluation thus was understood as one

mechanism that provided parents with sufficient

information so as to not alter the ordinary default rule

regarding the burden of proof.

But, as discussed above, the independent educational

evaluation does not provide parents an expert opinion in a

due process proceeding. Instead, it merely guarantees an

“independent” evaluation prior to the IEP. If parents wish

to use an expert for anything beyond the initial

evaluation, they must pay for it out of pocket without

reimbursement. The independent educational evaluation

provision has not been interpreted to require school

districts to reimburse experts that provide services to

parents such as consultation on goals, placement, or

services; assistance with preparation for a due process

proceeding; or testimony.

Thus, an independent educational evaluation does

not, and cannot, come close to leveling the playing field.

Indeed, as the empirical evidence demonstrates, that

occurs only through the use of experts who are authorized

by the statute to accompany and advise parents in due

process hearings. 20 U.S.C. § 1415(h)(1).

27

C. Petitioner’s Limiting Construction Of The

Statute Based On The Spending Clause Is

Unwarranted

In support of its miserly reading of IDEA, petitioner

attempts to find (Pet. Br. 13-14, 19-20) in this Court’s

precedents a general principle that statutes enacted

pursuant to Congress’s power under the Spending Clause,

U.S. Const., Art. I, §8, Cl. 1, should be read narrowly,

citing primarily Pennhurst State School & Hospital v.

Halderman, 451 U.S. 1 (1981), and the dissenting opinion

in Cedar Rapids Community School District v. Garrett F.,,

526 U.S. 66 (1999). That proposition finds no support in

this Court’s cases in general, and particularly not when

addressing a federal court’s authority to provide remedies

for proven violations.

There is no sound basis for subjecting Spending

Clause legislation to different interpretive rules than

legislation enacted under other sources of congressional

power. It is commonplace for a federal law not to govern

the conduct of a party unless and until that party

voluntarily undertakes the particular activity that is

subject to the law, whether that be choosing to run a

business large enough to be subject to the Fair Labor

Standards Act, Title VII, etc.; choosing to discharge

pollution into waters protected by the Clean Water Act; or

choosing to market driver’s license information subject to

the Driver’s Privacy Protection Act of 1994; or, as in this

case, accepting federal funds under a federal program.”

* Moreover, IDEA is not just Spending Clause legislation. As this

Court explained, IDEA was “set up by Congress to aid the States in

complying with their constitutional obligations to provide public

education for handicapped children.” Smith, 468 U.S. at 1009 (emphasis

supplied). The United States has consistently urged that “IDEA was

enacted not only pursuant to Congress’s authority under the Spending

Clause, but also pursuant to Section 5 of the Fourteenth Amendment.”

(Continued on following page)

28

All Pennhurst requires is that entities that receive

federal funds have notice that Congress or a federal

agency has attached conditions to the acceptance of the

funds. The Court held that that requirement was not met

——_——-in Pennhurst because the relevant statutory language was

merely “precatory.” 451 U.S. at 18. It is undisputed that

IDEA meets that requirement because the statute is clear

that recipients of federal IDEA funds will be obliged to

undertake significant obligations. See Irving Indep. Sch.

Dist. v. Tatro, 468 U.S. 883, 890 n.6, 891 & n.8 (1984);

Smith, 468 U.S. at 1002 n.6.

Once that requirement of notice has been satisfied,

the exact scope of the statute’s obligations presents a

straightforward matter of statutory interpretation, relying

on all the normal tools of construction including text,

structure, and legislative history. See Honig v. Doe, 484

US. 305, 324-325 & n.8 (1988); Tatro, 468 U.S. at 891-893;

see also Jackson v. Birmingham Bd. of Educ., 125 S. Ct.

1497, 1509-1510 (2005); Davis v. Monroe County Bd. of

Educ., 526 U.S. 629, 642-643, 650 (1999); School Bd. of

Nassau County v. Arline, 480 U.S. 273, 286 n.15 (1987);

Bennett v. Kentucky Dep't of Educ., 470 U.S. 656, 665-666

(1985).

Nor do this Court’s decisions establish a requirement

that recipients of federal funds be given unambiguous

notice in the statute as to remedies available for

Brief for United States as Amicus Curiae at 15, Cedar Rapids Cmty

Sch. Dist. v. Garret F., No. 96-1793 (S. Ct. Aug. 1998); see also Brief for

the United States as Intervenor at 21 n.10, M.A. v. New Jersey Dep't of

Educ., No. 02-1799 (3d Cir. July 3, 2002) (IDEA “can be sustained as a

valid exercise of Congress’s power under Section 5 of the Fourteenth

Amendment”). Like the statute at issue in Rumsfeld v. Forum for

Academic and Institutional Rights Inc., 126 S. Ct. 1297 (2006), IDEA

uses the Spending Clause to encourage school districts to do that which

Congress could compel them to do pursuant to its authority under

Section 5 of the Fourteenth Amendment.

29

noncompliance. To the contrary, this Court rejected that

argument more than twenty years ago, holding that once

Congress makes clear its intention to impose conditions on

the receipt of federal funds, Congress need not go further

and warn in advance of “the remedies available against a

noncomplying State.” Bell v. New Jersey, 461 U.S. 773, 790

n.17 (1983).” This holding is consistent with the approach

adopted by this Court in both Carter and Town of Burlington,

in which IDEA’s remedial provision was read to provide

district courts broad authority to provide any appropriate

relief that furthers the purposes of the statute.

Certainly these holdings apply with greater force to

the question of what constitutes “costs” under IDEA. As

this Court has explained, awarding costs incurred during

litigation to a prevailing party is unlikely to impose any

* Indeed, such a requirement could not be reconciled with the very

nature of an implied right of action, which by definition is not made

express in the text of a statute. Yet the Court has long accepted that a

private right of action may be implied against a public recipient of

federal funds. See, e.g., Jackson, 125 S. Ct. at 1504; Franklin v. Gwinett

County Pub. Schs., 503 U.S. 60, 65-66 (1992); Cannon v. University of

Chicago, 441 U.S. 677, 704-706 (1979); cf. Board of Educ. of Westside

Cmty. Sch. v. Mergens, 496 U.S. 226 (1990) (adjudicating claim under

Equal Access Act, which imposes obligations on school districts that

receive federal funds, that has no express cause of action). Congress has

ratified this Court’s decisions implying such rights of action from

Spending Clause statutes. See Alexander v. Sandoval, 532 U.S. 275, 280

(2001); Franklin, 503 U.S. at 72; id. at 78 (Scalia, J., concurring in

judgment).

It is true that this Court has sometimes tailored the circumstances

under which damages are available in an implied private right of action

to preclude such an award when the recipient of federal funds had no

actual knowledge that discriminatory conduct was occurring in its

programs. See Davis, 526 U.S. at 639-640. But it has not required the

recipient to have actual knowledge of the remedies available to a

prevailing plaintiff. For example, when the Court in Franklin held that

damages were available for violations of Title [X (contrary to the law of

the circuit in which the defendant resided, see 503 U.S. at 64), it

applied that holding to the case before it.

30

“hardship for a [defendant)” because they are “limited” to

“partially compensating a successful litigant for the

expense of his suit.” Hutto v. Finney, 437 U.S. 678, 697

n.27 (1978). The award in this case, less than $9,000,

confirms that permitting prevailing party parents to

recover the costs of experts used at the due process and

judicial hearings will impose no unexpected burden on

school districts.

CONCLUSION

For the reasons set forth above and in respondents’

brief, the judgment of the Second Circuit should be

affirmed.

Respectfully submitted,

Drew S. Days, III

SETH M. GALANTER

Counsel of Record

LINDA A. ARNSBARGER

BRIAN R. MATSUI

MORRISON & FOERSTER LLP

2000 Pennsylvania Ave., NW

Washington, DC 20006

(202) 887-1500

Counsel for Amici Curiae

March 28, 2006