The Individuals with Disabilities Education Act (IDEA): Supreme Court Decisions

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The Individuals with Disabilities Education

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The Individuals with Disabilities Education Act (IDEA): Supreme Court Decisions

Summary

The Individuals with Disabilities Education Act (IDEA) is both a grants statute and a civil rights

statute. It provides federal funding for the education of children with disabilities and requires, as a

condition for the receipt of such funds, the provision of a free appropriate public education

(FAPE). The statute also contains detailed due process provisions to ensure the provision of

FAPE. Originally enacted in 1975, the act responded to increased awareness of the need to

educate children with disabilities, and to judicial decisions requiring that states provide an

education for children with disabilities if they provided an education for children without

disabilities. Since its enactment, the Supreme Court has addressed several issues arising under the

act, including the interpretation of FAPE, the interpretation of the “stay-put” provision in the due

process requirements, and interpretations of related services. This report discusses the Supreme

Court’s decisions under IDEA.

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The Individuals with Disabilities Education Act (IDEA): Supreme Court Decisions

Contents

Introduction ................................................................................................................................1

Free Appropriate Public Education ..............................................................................................1

Statutory Provision................................................................................................................1

Hendrick Hudson Central School District v. Rowley ..............................................................1

Private School Placement ............................................................................................................5

Background ..........................................................................................................................5

Supreme Court Decisions ......................................................................................................5

Related Services..........................................................................................................................7

Statutory Provisions ..............................................................................................................7

Supreme Court Decisions ......................................................................................................7

Procedural Safeguards.................................................................................................................8

Background and Statutory Provisions ....................................................................................8

Honig v. Doe.........................................................................................................................9

Attorneys’ Fees ...........................................................................................................................9

Expert Witness Fees .................................................................................................................. 10

Burden of Proof ........................................................................................................................ 11

Statutory Provisions ............................................................................................................ 11

Schaffer v. Weast ................................................................................................................. 11

Parental Rights to Bring Suit Pro Se.......................................................................................... 12

Contacts

Author Contact Information ...................................................................................................... 13

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The Individuals with Disabilities Education Act (IDEA): Supreme Court Decisions

Introduction

The Individuals with Disabilities Education Act (IDEA)1 is both a grants statute and a civil rights

statute. It provides federal funding for the education of children with disabilities and requires, as a

condition for the receipt of such funds, the provision of a free appropriate public education

(FAPE). The statute also contains detailed due process provisions to ensure the provision of

FAPE. Originally enacted in 1975, the act responded to increased awareness of the need to

educate children with disabilities, and to judicial decisions requiring that states provide an

education for children with disabilities if they provided an education for children without

disabilities.2 Since its enactment, the Supreme Court has addressed several issues arising under

the act, including the interpretation of FAPE, the interpretation of the “stay-put” provision in the

due process requirements, and interpretations of related services. The Supreme Court’s most

recent IDEA decision is Forest Grove School District v. T.A.3 where the Court held that IDEA

authorized reimbursement for private special education services when a public school fails to

provide FAPE and the private school placement is appropriate, regardless of whether the child

previously received special education services through the public school. This report discusses

the Supreme Court’s decisions under IDEA.

Free Appropriate Public Education

Statutory Provision

The core requirement of IDEA is that a state must provide children with disabilities a free

appropriate public education in order to receive federal funding under the act.4 FAPE is defined in

the statute as meaning “special education and related services that—(A) have been provided at

public expense, under public supervision and direction, and without charge; (B) meet the

standards of the State educational agency; (C) include an appropriate preschool, elementary

school, or secondary school education in the State involved; and (D) are provided in conformity

with the individualized education program required under section 614(d).”5

Hendrick Hudson Central School District v. Rowley

Board of Education of the Hendrick Hudson Central School District v. Rowley, 6 decided in 1982,

was the first IDEA case to reach the Supreme Court.7 When the IDEA complaint was first filed,

20 U.S.C. §1400 et seq.

For a more detailed discussion of the congressional intent behind the enactment of P.L. 94-142, see CRS Report 95669, The Individuals with Disabilities Education Act: Congressional Intent, by (name redacted). IDEA has undergone

several reauthorizations, including the most recent one, which resulted in P.L. 108-446. For a discussion of this

reauthorization, see CRS Report RL32716, Individuals with Disabilities Education Act (IDEA): Analysis of Changes

Made by P.L. 108-446, by (name redacted) and (name redacted).

557 U.S. __ (2009), aff’d 523 F.3d 1078 (9th Cir. 2008).

20 U.S.C. §1412(a)(1).

20 U.S.C. §1401(9).

458 U.S. 176 (1982).

For the purposes of this report, the law will generally be referred to as IDEA, the Individuals with Disabilities

(continued...)

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The Individuals with Disabilities Education Act (IDEA): Supreme Court Decisions

Amy Rowley was a deaf first grader whose parents were also deaf. Her individualized education

program (IEP) provided that she should be educated in a regular classroom, use an FM hearing

aid, and receive instruction from a tutor for the deaf for one hour each day and from a speech

therapist for three hours each week. Amy’s parents agreed with parts of the IEP but insisted that

she be provided a sign-language interpreter in all her academic classes. The request for an

interpreter was denied, and the Rowleys pursued their due process remedies. The district court

found that Amy was a remarkably well-adjusted child who had an extraordinary rapport with her

teachers. The court also found that Amy was performing better than the average child in her class

and was advancing easily from grade to grade but was understanding considerably less of what

goes on in class than she could if she were not deaf. This disparity between Amy’s achievement

and her potential led the district court to conclude that she was not receiving a free appropriate

public education. This decision was affirmed by the court of appeals, but the U.S. Supreme Court

reversed.

The Supreme Court noted that there was no substantive language in IDEA regarding the level of

education to be accorded to children with disabilities and observed that “(i)mplicit in the

congressional purpose of providing access to a ‘free appropriate public education’ is the

requirement that the education to which access is provided be sufficient to confer some

educational benefit upon the handicapped child.”8 The Court concluded that “the ‘basic floor of

opportunity’ provided by the Act consists of access to specialized instruction and related services

which are individually designed to provide educational benefit to the handicapped child.”9 The

Court held that the requirement of FAPE is met when a child is provided with personalized

instruction with sufficient support services to benefit educationally from that instruction. This

instruction must be provided at public expense, meet the state’s educational standards, must

approximate the grade levels used in the state’s regular education, and must comport with the

child’s IEP. The Court found that when a child with a disability is mainstreamed, “the system

itself monitors the educational progress of the child.... The grading and advancement system thus

constitutes an important factor in determining educational benefit.”10 Therefore, the IEP “should

be formulated in accordance with the requirements of the Act and, if the child is being educated in

the regular classrooms of the public education system, should be reasonably calculated to enable

the child to achieve passing marks and advance from grade to grade.”11

However, the states are not required to “maximize” each child’s potential. 12 If the child is

progressing from grade to grade and making measurable and adequate gains, the FAPE

requirement is met.

The Supreme Court also stated that in ensuring that the requirements of the act have been met,

courts must be careful to avoid imposing their view of preferable educational methods upon the

states. The primary responsibility for formulating the education provided was left by IDEA to

state and local educational agencies. As the Court noted, determining when children with

(...continued)

Education Act, although it was originally known as the Education for All Handicapped Children Act, EAHCA. The

name was changed by P.L. 101-476.

458 U.S. 178 at 200.

Id. at 201.

Id at 203.

Id. at 203-204.

Id. at 198.

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disabilities are “receiving sufficient educational benefits to satisfy the requirements of the Act

presents a more difficult problem”13 than complying with requirements for access to education.

Due to the wide spectrum of disabilities, the Court did not attempt to establish any one test for

determining the adequacy of educational benefits and confined its analysis to the facts of the case.

Rowley remains a seminal decision under IDEA and is often cited by courts attempting to

determine the parameters of a free appropriate public education. However, the lower courts have

varied in how expansively they have interpreted Rowley, with some courts interpreting Rowley to

support schools’ IEPs if the procedural requirements have been met, even if the educational

progress is minimal. For example, in Fort Zumwalt School District v. Clynes,14 the eighth circuit

emphasized Rowley’s “access to education” requirement and held that the IEP was adequate. The

court noted that the child was making progress, earning passing marks and advancing to the next

grade, despite reading proficiency scores in the second to ninth percentile. However, the

dissenting opinion described the child’s achievement as “trivial” and argued that “(t)his cannot be

the sort of education Congress had in mind when it enacted IDEA.”15 Other courts have read

Rowley more expansively. For example, in Polk v. Cent. Susquehanna Intermediate Unit 16,16 the

third circuit examined the “some educational benefit” language in Rowley and held that it

required an IEP to provide more than de minimis educational benefit. 17 Similarly, the fifth circuit,

in Cypress-Fairbanks Indep. School District v. Michael F.,18 quoted from Rowley and concluded

that “the educational benefit that an IEP is designed to achieve must be ‘meaningful.’”19 In order

to determine whether an IEP meets this standard, the Cypress-Fairbanks court identified four

factors: (1) the program is individualized, (2) the program is administered in the least restrictive

environment, (3) the services are provided in a coordinated and collaborative manner, and (4)

positive academic and nonacademic benefits are demonstrated. 20 Other courts have looked at

academic achievement testing, as well as grades, to measure educational benefit. For example, in

Houston Independent School Dist. v. Bobby R.,21 the court looked at the child’s scores on the

Woodcock Johnson intelligence and achievement test to determine the child’s educational

progress.22

The application of the Supreme Court’s analysis in Rowley to current controversies is somewhat

confused by the change in the usage of the term “educational standards.” Although the Supreme

Court in Rowley required that the instruction given to a child with a disability meet the state’s

educational standards, the term “educational standards” has taken on a different meaning in recent

years. Currently, the term “educational standards” is likely to refer to specific content-based

standards that delineate what a child should know and be able to perform at various points in his

or her educational career.

Id. at 202.

119 F.3d. 607 (8th Cir. 1997), cert. denied, 523 U.S. 1137 (1998).

Id. at 617 (dissenting opinion by Judge Gibson). For a more detailed discussion of Fort Zumwalt see Charlene K.

Quade, “A Crystal Clear Idea: The Court Confounds the Clarity of Rowley and Contorts Congressional Intent,” 23

Hamline J. Pub. L. and Policy 37 (2001).

853 F.2d 171 (3d Cir. 1988), cert. denied, 488 U.S. 1030 (1989).

Id. at 180-185.

118 F.3d 245 (5th Cir. 1997), cert. denied, 522 U.S. 1047 (1998).

Id. at 248.

Id. at 253.

200 F.3d 341 (5th Cir. 2000), cert. denied, 531 U.S. 817 (2000).

Id. at 349.

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The Individuals with Disabilities Education Act (IDEA): Supreme Court Decisions

The 1997 Amendments to IDEA23 reflected the standards-based education movement. P.L. 105-17

significantly changed the IEP requirements and required that the IEP include, among others, a

statement of the child’s present levels of educational performance, including the effect of the

child’s disability on the child’s involvement and progress in the general curriculum, and a

statement of measurable annual goals designed to enable the child to progress in the general

curriculum. 24 In addition, in the statement of findings for the 2004 reauthorization, P.L. 108-446

states that “[a]lmost 30 years of research and experience has demonstrated that the education of

children with disabilities can be made more effective by—(A) having high expectations for such

children and ensuring their access to the general curriculum in the regular classroom to the

maximum extent possible.... ”25

The Supreme Court in Rowley held that FAPE requires that “the ‘basic floor of opportunity’

provided by the Act consists of access to specialized instruction and related services which are

individually designed to provide educational benefit to the handicapped child” and that the

instruction must meet the state’s educational standards.26 Given the fact that the standards-based

education movement, as reflected in IDEA and the No Child Left Behind Act (NCLBA),27 has

raised the standards from what was required in the version of the law the Supreme Court

interpreted, questions could be raised concerning the current application of Rowley. It could be

argued that because the Supreme Court emphasized that courts must not impose their view of

preferable educational methods on the states, the change in the standards does not affect the core

of the Court’s Rowley holding. However, the Court also stated that the child’s access to education

must be sufficient to confer “some educational benefit” and that states are not required to

“maximize” each child’s potential. The Supreme Court has not overruled Rowley, and it could be

argued that the Rowley standard is flexible enough not to present a conflict with subsequent

changes in educational law relating to standards-based instruction. On the other hand, one

commentator has argued that the Supreme Court would not reach the same decision today as it

did in Rowley. “The cryptic and intangible Rowley standard of benefit is rightfully dying, if not

already dead. By focusing on standards for all students, and participation and progress in the

general curriculum, IDEA ‘97 illuminates a more objective and quantifiable approach to the

subjective Rowley benefit analysis developed through subsequent case law.”28

Given the fact that the standards-based education movement, as reflected in IDEA and NCLBA,

has raised the standards from what was required in the version of the law the Supreme Court

interpreted in Rowley, questions have been raised concerning the current application of Rowley.

P.L. 105-17.

P.L. 105-17 §614(d)(1)(A), 20 U.S.C. §1414(d)(1)(A). IDEA was most recently reauthorized by P.L. 108-446 in

2004. This revision continued the standards based requirements of P.L. 105-17.

20 U.S.C. §1400(c)(5)(A).

Board of Education of the Hendrick Hudson Central School District v. Rowley, 458 U.S. 176, 201, 203 (1982).

20 U.S.C. §§6301-6777. For a discussion of the requirements of the NCLBA, see CRS Report RL31284, K-12

Education: Highlights of the No Child Left Behind Act of 2001 (P.L. 107-110), coordinated by (name redacted). For a

discussion of the relationship between the NCLBA and the IDEA, see CRS Report RL32913, The Individuals with

Disabilities Education Act (IDEA): Interactions with Selected Provisions of the No Child Left Behind Act (NCLB), by

(name redacted) and (name redacted).

Joyce O. Eckrem and Eliza J. McArthur, “Is the Rowley Standard Dead? From Access to Results,” 5 UC Davis J.

Juv. L. & Policy 199 (Summer 2001). See also Tara L. Eyer, “Greater Expectations: How the 1997 IDEA Amendments

Raise the Basic Floor of Opportunity for Children with Disabilities,” 103 Dick. L. Rev. 613 (1999).

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The Individuals with Disabilities Education Act (IDEA): Supreme Court Decisions

Parents of students with disabilities have argued that FAPE requirements have been changed by

NCLBA in several cases but have not yet been successful.29

Private School Placement

Background

Issues concerning what services are required for children with disabilities placed in private

schools, and who is to pay for these services, have been a continuing source of controversy under

IDEA. 30 Under current law, a child with a disability may be placed in a private school by the local

educational agency (LEA) or state educational agency (SEA) as a means of fulfilling the FAPE

requirement for the child. In this situation, the full cost is paid for by the LEA or the SEA. A child

with a disability may also be unilaterally placed in a private school by his or her parents. In this

situation, the cost of the private school placement is not paid by the LEA unless a hearing officer

or a court makes certain findings. However, IDEA does require some services for children in

private schools, even if they are unilaterally placed there by their parents.31 IDEA, as amended,

states in part:

(ii) REIMBURSEMENT FOR PRIVATE SCHOOL PLACEMENT.—If the parents of a child with a

disability, who previously received special education and related services under the authority

of a public agency, enroll the child in a private elementary school or secondary school

without the consent of or referral by the public agency, a court or a hearing officer may

require the agency to reimburse the parents for the cost of the enrollment if the court or

hearing officer finds that the agency had not made a free appropriate public education

available to the child in a timely manner prior to that enrollment.32

Supreme Court Decisions

The current statutory provisions regarding private schools are the result of several major

amendments, and the majority of the Supreme Court decisions on private schools were decided

prior to the statutory changes. However, two recent Supreme Court cases, Board of Education of

the City School District of the City of New York v. Tom F. 33 and Forest Grove School District v.

T.A.,34 have addressed the question of whether IDEA allows for tuition reimbursement for parents

See e.g., Leighty v. Laurel School District, 457 F.Supp.2d 546 (W.D. Pa. 2006). Fisher v. Stafford County Township

Board of Education, 2007 U.S. Dist. LEXIS 14003 (February 27, 2007), aff’d 289 Fed. Appx. 520 (3d Cir. 2008).

Kirby v. Cabell County Board of Education, 2006 U.S. Dist LEXIS 67254 (S.D. W.Va. September 19, 2006). For a

discussion of this issue see Robin Bucaria, “Expanding the Definition of FAPE under NCLB: Why Courts Give FAPE

the Slip and Leave it Swimming in a Sea of Alphabet Soup,” 10 J. L. Fam. Studies 237 (2007).

For a discussion of these issues under current law, see CRS Report RS22044, Individuals with Disabilities Education

Act (IDEA): Services in Private Schools under P.L. 108-446, by (name redacted), and CRS Report RL33368, The

Individuals with Disabilities Education Act (IDEA): Parentally Placed Children in Private Schools, by (name redac

ted) and (name redacted).

20 U.S.C. §1412(a)(10).

20 U.S.C. § 1412(a)(10)(C)(ii).

552 U.S. 1 (2007).

557 U.S. __ (2009), aff’d 523 F.3d 1078 (9th Cir. 2008).

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who placed their child in a private school without ever having received special education from the

public school under the current statutory provisions.

In School Committee of the Town of Burlington v. Department of Education of Massachusetts,35

the father of a child with specific learning disabilities rejected a proposed IEP and placed the

child, at his own expense, in a state-approved private school for special education. In an

unanimous decision written by Justice Rehnquist, the Supreme Court held that the statutory

provision granting courts the right to grant such relief as the court deems appropriate includes the

power to order school authorities to reimburse parents for private school expenditures. However,

this reimbursement is permitted only if a court ultimately determines that the private school

placement, rather than a proposed IEP, is proper under the act.

In the subsequent unanimous decision of Florence County School District Four v. Carter,36 the

Supreme Court was again presented with a situation in which parents had unilaterally placed a

child with a disability in a private school, alleging that the public school’s proposed IEP did not

meet IDEA requirements. The district court and the fourth circuit court of appeals found that the

proposed IEP violated IDEA. On appeal to the Supreme Court, the issue was whether the parents

were barred from reimbursement because the private school did not meet the IDEA requirements

for a free appropriate public education. The Court held that reimbursement cannot be barred

because of noncompliance with the requirements because these requirements in part require that

the education be provided at public expense and under public supervision and direction37 and that

“these requirements do not make sense in the context of a parental placement.”38 Similarly, the

failure of the private school to meet state education standards did not bar reimbursement.

“Parents’ failure to select a program known to be approved by the State in favor of an unapproved

option is not itself a bar to reimbursement.”39

In the 2007 decision Board of Education of the City School District of the City of New York v. Tom

F., 40 the Court, dividing 4-4, allowed an appeals court ruling on private school reimbursement to

stand. The court of appeals had held that parents of a child with a disability are entitled to private

school reimbursement even though the student had never received special education services from

the school district. The Court’s per curiam decision did not set a precedent for lower courts, and

therefore the issue about whether reimbursement for private school tuition may be made when the

child has not received public special education services remained unsettled. On October 15, 2007,

the Supreme Court denied certiorari in another case presenting the same issue.41

In the Supreme Court’s most recent IDEA decision, Forest Grove School District v. T.A.,42 the

Supreme Court ruled definitively on the private school reimbursement issue. In this case, T.A.

originally attended a public high school where he had been evaluated for a disability, but not been

diagnosed with one, in an evaluation that a hearing officer later concluded was “legally

471 U.S. 359 (1985).

510 U.S. 7 (1993).

This requirement is still in current law. 20 U.S.C. §1401(9).

510 U.S. 7, 13 (1993).

Id. at 14.

552 U.S. 1 (2007), 128 S.Ct. 1, 199 L.Ed.2d 1 (2007).

Board of Education of the Hyde Park Central School District v. Frank G., 459 F.3d 356 (2d Cir. 2006), cert. denied,

522 U.S. 985 (2007).

557 U.S. __ (2009), aff’d 523 F.3d 1078 (9th Cir. 2008).

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inadequate.” As a result, T.A. did not qualify for special education services and did not receive an

IEP. Eventually T.A.’s parents placed him in a private academy following a diagnosis of ADHD

by a private specialist, and the parents subsequently requested a due process hearing about the

school district’s evaluation of T.A. Because the school district did not offer T.A. FAPE and the

private school placement was appropriate, the hearing officer ultimately ordered the district to

reimburse T.A.’s parents for the cost of tuition. Upon judicial review, the district court found that

the 1997 Amendments to IDEA barred reimbursement of private school tuition for students who

have not yet received special education services through the public schools, but the court of

appeals reversed the decision. Noting a circuit split on this issue, the Supreme Court granted

certiorari and affirmed the appellate court’s decision. Analyzing the statutory language and

Congress’s intent in passing the 1997 Amendments to IDEA, the Court held that IDEA authorized

reimbursement for private special education services when a public school fails to provide FAPE

and the private school placement is appropriate, regardless of whether the child previously

received special education services through the public school. The Court emphasized that “[i]t

would be particularly strange for the Act to provide a remedy ... when a school district offers a

child inadequate ... [special education] services but to leave parents without relief in the more

egregious situation in which the school district unreasonably denies a child access to such

services altogether.”

Related Services

Statutory Provisions

As noted above, IDEA’s requirement of a free appropriate public education is the cornerstone of

the act. FAPE is defined in part as requiring “special education and related services.”43 Related

services are defined as meaning

transportation, and such developmental, corrective, and other supportive services (including

speech-language pathology and audiology services, interpreting services, psychological

services, physical and occupational therapy, recreation, including therapeutic recreation,

social work services, school nurse services designed to enable a child with a disability to

receive a free appropriate public education as described in the individualized education

program of the child, counseling services, including rehabilitation counseling, orientation

and mobility services, and medical services, except that such medical services shall be for

diagnostic and evaluation purposed only) as may be required to assist a child with a

disability to benefit from special education, and includes the early identification and

assessment of disabling conditions in children.44

Supreme Court Decisions

Two of the Supreme Court’s decisions under IDEA have involved the concept of related services,

and both have involved the issue of what is a medical service. In Irving Independent School

District v. Tatro,45 the Court examined the case of an eight-year-old girl with spina bifida who

20 U.S.C. §1401(9).

20 U.S.C. §1401(26) (emphasis added).

468 U.S. 883 (1984).

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required clean intermittent catheterization (CIC), and held that the school must provide the

service. The Court held that services affecting both the medical and educational needs of a child

must be provided under IDEA if (1) the child has a disability so as to require special education,

(2) the service is necessary to help a child with a disability benefit from special education, and (3)

a nurse or other qualified person who is not a physician can provide the service. Services that

could be provided outside the school day would not need to be provided. Tatro drew a bright line

between services that had to be provided by a doctor and those that could be provided by a person

who was not a physician. However, after Tatro, some courts of appeals did not apply this bright

line but used other factors, such as the nature and extent of services. This set the stage for another

Supreme Court decision in 1999, Cedar Rapids Community School District v. Garret F.46

Garret F. involved a child who was paralyzed from the neck down as a result of a motorcycle

accident when he was four years old. The child retained his mental capacities and was described

by the Court as a “friendly, creative, and intelligent young man.” For a number of years, his

family arranged for his physical care during the school day, but eventually they requested the

school to accept financial responsibility for his health-care services. Because the child was

ventilator-dependent, these services were fairly substantial and included providing suction on his

tracheotomy tube and manually pumping air through an air bag when suction is being provided.

In addition, he needed assistance with catheterization and eating. The school denied the parents’

request and proposed a test for related services in which the outcome would depend on a series of

factors, such as whether the care was continuous and the cost of the services. The Court rejected

this proposed test and used the same reasoning it had used in Tatro, finding that the medical

services exclusion from the definition was limited to the services of physician or a hospital. This

holding, the Court stated, was in keeping with the overarching purpose of IDEA “to open the door

of public education to all qualified children.”47

Procedural Safeguards

Background and Statutory Provisions

In enacting P.L. 94-142, the original version of IDEA, Congress provided grants to the states to

help pay for education for children with disabilities and also delineated specific requirements the

states must follow to receive these federal funds. This public law contained a requirement that if

there is a dispute between the school and the parents of a child with a disability, the child “stays

put” in his or her current educational placement until the dispute is resolved using the due process

procedures set forth in the statute. The concept of “stay put” was placed in the statute to help

eliminate the then common discriminatory practice of expelling children with disabilities from

school. A revised “stay put” provision remains as law in the current version of IDEA. 48

526 U.S. 66 (1999).

Id. at 78.

20 U.S.C. §1415(j). For a detailed discussion of “stay put,” see CRS Report RL32753, Individuals with Disabilities

Education Act (IDEA): Discipline Provisions in P.L. 108-446, by (name redacted).

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Honig v. Doe

In 1988, the question of whether there was an implied exception to the “stay put” rule was

presented to the Supreme Court in Honig v. Doe.49 Honig involved emotionally disturbed

children, one of whom had choked another student with sufficient force to leave abrasions on the

child’s neck and who had kicked out a window while he was being escorted to the principal’s

office. The other child in the Honig case had been involved in stealing, extorting money, and

making lewd comments. The school had sought expulsion, but the Supreme Court disagreed

finding that “Congress very much meant to strip schools of the unilateral authority they had

traditionally employed to exclude disabled students, particularly emotionally disturbed students,

from school.”50 However, the Court observed that this holding did “not leave educators

hamstrung.... Where a student poses an immediate threat to the safety of others, officials may

temporarily suspend him or her for up to 10 school days.... And in those cases in which the

parents of a truly dangerous child adamantly refuse to permit any change in placement, the 10day respite gives school officials an opportunity to invoke the aid of the courts under section

1415(e)(2), which empowers courts to grant any appropriate relief.”51 This statement about the

school’s right to seek judicial relief has come to be know as a Honig injunction.

The Supreme Court’s interpretation of IDEA in Honig did not quell all concerns about discipline

and children with disabilities. In 1994, Congress amended IDEA’s “stay put” provision to give

schools the unilateral authority to remove a child with a disability to an interim alternative

educational setting if the child was determined to have brought a firearm to school. This provision

was expanded in the IDEA Amendments of 1997 to include weapons (not just firearms) and

drugs, and is further expanded in the 2004 reauthorization to include situations where a student

has inflicted serious bodily injury upon another person while at school.

Attorneys’ Fees

Although the original version of IDEA, P.L. 94-142, contained no specific provision for

attorneys’ fees, prevailing parties used section 505 of the Rehabilitation Act of 1973,52 or section

1988 of the Civil Rights Attorneys’ Fees Award Act,53 to seek fees. However, the Supreme Court

in Smith v. Robinson54 held that the only remedies for prevailing parties under IDEA were those

contained in that statute. The statute was described as “a comprehensive scheme set up by

Congress to aid the States in complying with their constitutional obligations to provide public

education for handicapped children.”55 The Court further noted that allowing the use of other

statutes to provide for attorneys’ fees would “be inconsistent with Congress’ carefully tailored

scheme.”56

484 U.S. 305 (1988).

484 U.S. 305, 323 (1988) (emphasis in the original).

Id. at 325-326.

29 U.S.C. §794a.

42 U.S.C. §1988.

468 U.S. 992 (1984).

Id. at 1009.

Id. at 1012.

Congressional Research Service

The Individuals with Disabilities Education Act (IDEA): Supreme Court Decisions

The Court’s decision in Smith v. Robinson was controversial. In response, Congress in 1986

enacted the Handicapped Children’s Protection Act, which provided for attorneys’ fees under

IDEA. 57 These provisions were amended in 1997. The P.L. 105-17 amendments allowed the

reduction of attorneys’ fees if the attorney representing the parents did not provide the LEA with

timely and specific information about the child and the basis of the dispute, and specifically

excluded the payment of attorneys’ fees for most individualized education plan (IEP) meetings.

The 2004 IDEA reauthorization, P.L. 108-446, kept many of the previous provisions on attorneys’

fees but also made several additions. These include allowing attorneys’ fees for the state

educational agency (SEA) or the local educational agency (LEA) against the parent or the

parent’s attorney in certain situations.58

Expert Witness Fees

Although there is no specific provision allowing a court to award prevailing parents expert

witness fees, the language regarding attorneys’ fees has been interpreted by some lower courts to

allow such an award. IDEA’s statutory language states in relevant part: “in any action or

proceeding brought under this section, the court, in its discretion, may award reasonable

attorneys’ fees as part of the costs—(I) to a prevailing party who is the parent of a child with a

disability.... ”59

The parents in Arlington Central School District v. Murphy60 argued that the language on costs

encompassed the payment of expert witness fees. To support this argument, they pointed to the

legislative history of the Handicapped Children’s Protection Act,61 which stated that “[t]he

conferees intend that the term ‘attorneys’ fees as part of the costs’ include reasonable expenses

and fees of expert witnesses.”62

The Supreme Court, in a decision written by Justice Alito, held that IDEA does not authorize

prevailing parents to recover fees they have paid to experts. The majority opinion first observed

that the holding was “guided by the fact that Congress enacted the IDEA pursuant to the Spending

Clause.”63 This was seen as significant because if Congress attaches conditions to a state’s

acceptance of funds, the conditions must be unambiguous and provide clear notice. The majority

concluded that IDEA’s statutory language did not provide this clear notice and that the legislative

history was unconvincing and “simply not enough” under these circumstances. 64

Legislation, H.R. 2740, 111th Congress, would amend IDEA to include the fees of expert

witnesses. H.R. 2740 specifically provided that “the term ‘attorneys’ fees’ shall include the fees of

P.L. 99-372.

20 U.S.C. §1415(i)(3). For a discussion of P.L. 108-446 and attorneys’ fees, see CRS Report RS22055, The

Individuals with Disabilities Education Act (IDEA): Attorneys’ Fees Provisions in P.L. 108-446, by (name redacted).

20 U.S.C. §1415(i)(3)(B).

548 U.S.291 (2006).

P.L. 99-372.

H.R. Conf. Rep. No. 99-687, at 5.

Id. Slip op. at 3.

548 U.S. 291, 304 (2006). For a more detailed discussion see CRS Report RS22465, The Individuals with

Disabilities Education Act (IDEA): The Supreme Court Denies Expert Fees in Arlington Central School District v.

Murphy, by (name redacted).

Congressional Research Service

The Individuals with Disabilities Education Act (IDEA): Supreme Court Decisions

expert witness, including reasonable costs of any test or evaluation necessary for the preparation

of the parent or guardian’s case in the action or proceeding.”

Burden of Proof

Statutory Provisions

IDEA contains detailed due process requirements to ensure the provision of FAPE. These include

the opportunity for an impartial due process hearing. 65 However, the statute contains no specific

provision relating to which party has the burden of proof in a due process hearing, and the courts

of appeals were split in their interpretations of who bore the burden of proof.

Schaffer v. Weast

The Supreme Court in Schaffer v. Weast,66 held that the burden of proof regarding an allegedly

inadequate IEP in an IDEA due process hearing rests with the party seeking the relief. The

Supreme Court, in an opinion by Justice O’Connor, first observed that “absent some reason to

believe that Congress intended otherwise, ... we will conclude that the burden of persuasion lies

where it usually falls, upon the party seeking relief.”67 Justice O’Connor then examined, and

rejected, various reasons advanced to support the argument that the burden of proof should be on

the school system. The Supreme Court noted that the most plausible argument advanced by the

parents was that in the interest of fairness, the burden of proof should not be placed on a party

when the facts are “peculiarly within the knowledge of his adversary.”68 School districts were

seen as having a “natural advantage” regarding the information, but Justice O’Connor did not find

this to be determinative because “Congress addressed this when it obliged schools to safeguard

the procedural rights of parents and to share information with them.”69 The Court noted that

IDEA provides parents with the right to review records, to have an independent educational

evaluation, to have details about options considered by the school district as well as disclosure of

evaluations and recommendations, and to receive attorneys’ fees in the discretion of a court if

they prevail. Justice O’Connor concluded that “[t]hese protections ensure that the school bears no

unique informational advantage.”70

20 U.S.C. §1415(f).

546 U.S. 49 (2005). Chief Justice Roberts took no part in the decision. For a more detailed discussion of Weast, see

CRS Report RS22353, The Individuals with Disabilities Education Act (IDEA): Schaffer v. Weast Determines Party

Seeking Relief Bears the Burden of Proof, by (name redacted).

Slip op. at 8.

Slip op. at 10, citing United States v. New York, N.H. & H.R. Co., 355 U.S. 253, 256, n.5 (1957).

Slip op. at 10.

Slip op. at 11.

Congressional Research Service

The Individuals with Disabilities Education Act (IDEA): Supreme Court Decisions

Parental Rights to Bring Suit Pro Se

In Winkelman v. Parma City School District,71 the Supreme Court examined the issue of whether

IDEA permits parents who are not attorneys to bring suit in court, either on their own behalf or as

representatives of their child. The Court held that such pro se suits were permitted for parents

suing with regard to their own rights. In an opinion written by Justice Kennedy, the Court

concluded that IDEA grants parents independent, enforceable rights that encompass a child’s

entitlement to a free appropriate public education and that these rights are not limited to

procedural or reimbursement issues.

In arriving at this holding, Justice Kennedy observed that “a proper interpretation of the Act

requires a consideration of the entire statutory scheme.” The Court examined IDEA’s statutory

language, noting that one of the purposes of IDEA is “to ensure that the rights of children with

disabilities and parents of such children are protected.”72 This language was found to refer to

rights for both parents and children with disabilities. Similarly, the Court found that the

establishment of procedural rights was required “to ensure that the rights of children with

disabilities and parents of such children are protected.”73 These provisions were found to support

the finding that the parents of a child with a disability have “a particular and personal interest” in

the goals of IDEA and that “IDEA includes provisions conveying rights to parents as well as to

children.”

The rights that IDEA provides for parents were found to encompass not only procedural but also

substantive rights. Justice Kennedy observed, “IDEA does not differentiate, through isolated

references to various procedures and remedies, between the rights accorded to children and the

rights accorded to parents.” It was argued that granting these rights would increase the costs to

the states because parents may bring more lawsuits if they do not have the financial constraint of

paying for an attorney. However, the Court found that these concerns were not sufficient to

support an argument under the Spending Clause that IDEA failed to provide clear notice before a

new condition or obligation was placed on a recipient of funds. In addition, Justice Kennedy

observed that IDEA specifically allows courts to award attorneys’ fees to a prevailing educational

agency when a parent has brought an action for an “improper purpose, such as to harass, to cause

unnecessary delay, or to needlessly increase the cost of litigation.”74

Justice Scalia, joined by Justice Thomas, concurred in the judgment in part and dissented in part.

These Justices would have held that parents have the right to proceed pro se under IDEA when

they seek reimbursement for private school tuition or for violations of the parents’ procedural

rights. However, Justices Scalia and Thomas would not have allowed such suits when the suits

sought a judicial determination that the child’s free appropriate public education was

substantively inadequate.

550 U.S. 516 (2007).

20 U.S.C. §1400(d)(1)(B).

20 U.S.C. §1415(a).

20 U.S.C. §1415(i)(3)(B)(i)(III).

Congressional Research Service

The Individuals with Disabilities Education Act (IDEA): Supreme Court Decisions

Author Contact Information

(name redacted)

Legislative Attorney

[redacted]@crs.loc.gov, 7-....

Congressional Research Service

(name redacted)

Legislative Attorney

[redacted]@crs.loc.gov, 7-....

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