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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/crs%3ARL33444

## Record

- **Collection:** Congressional research report
- **Document type:** CRS Report
- **Published:** January 11, 2010
- **Citation:** RL33444

## Text

The Individuals with Disabilities Education
Act (IDEA): Supreme Court Decisions
(name redacted)
Legislative Attorney
(name redacted)
Legislative Attorney
January 11, 2010

Congressional Research Service
7-....
www.crs.gov
RL33444

CRS Report for Congress
Prepared for Members and Committees of Congress

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 Originally enacted in 1975, the act responded to increased awareness of the need to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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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,
1

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).
3
557 U.S. __ (2009), aff’d 523 F.3d 1078 (9th Cir. 2008).
4
20 U.S.C. §1412(a)(1).
5
20 U.S.C. §1401(9).
6
458 U.S. 176 (1982).
7
For the purposes of this report, the law will generally be referred to as IDEA, the Individuals with Disabilities
(continued...)
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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.
8
458 U.S. 178 at 200.
9
Id. at 201.
10
Id at 203.
11
Id. at 203-204.
12
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.
13

Id. at 202.
119 F.3d. 607 (8th Cir. 1997), cert. denied, 523 U.S. 1137 (1998).
15
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).
16
853 F.2d 171 (3d Cir. 1988), cert. denied, 488 U.S. 1030 (1989).
17
Id. at 180-185.
18
118 F.3d 245 (5th Cir. 1997), cert. denied, 522 U.S. 1047 (1998).
19
Id. at 248.
20
Id. at 253.
21
200 F.3d 341 (5th Cir. 2000), cert. denied, 531 U.S. 817 (2000).
22
Id. at 349.
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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.

23

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.
25
20 U.S.C. §1400(c)(5)(A).
26
Board of Education of the Hendrick Hudson Central School District v. Rowley, 458 U.S. 176, 201, 203 (1982).
27
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).
28
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).
24

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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

29

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).
30
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).
31
20 U.S.C. §1412(a)(10).
32
20 U.S.C. § 1412(a)(10)(C)(ii).
33
552 U.S. 1 (2007).
34
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
35

471 U.S. 359 (1985).
510 U.S. 7 (1993).
37
This requirement is still in current law. 20 U.S.C. §1401(9).
38
510 U.S. 7, 13 (1993).
39
Id. at 14.
40
552 U.S. 1 (2007), 128 S.Ct. 1, 199 L.Ed.2d 1 (2007).
36

41

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).
42
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
43

20 U.S.C. §1401(9).
20 U.S.C. §1401(26) (emphasis added).
45
468 U.S. 883 (1984).
44

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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

46

526 U.S. 66 (1999).
Id. at 78.
48
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

49

484 U.S. 305 (1988).
484 U.S. 305, 323 (1988) (emphasis in the original).
51
Id. at 325-326.
52
29 U.S.C. §794a.
53
42 U.S.C. §1988.
54
468 U.S. 992 (1984).
55
Id. at 1009.
56
Id. at 1012.
50

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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
57

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).
59
20 U.S.C. §1415(i)(3)(B).
60
548 U.S.291 (2006).
61
P.L. 99-372.
62
H.R. Conf. Rep. No. 99-687, at 5.
63
Id. Slip op. at 3.
58

64
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).

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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

65

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).
67
Slip op. at 8.
68
Slip op. at 10, citing United States v. New York, N.H. & H.R. Co., 355 U.S. 253, 256, n.5 (1957).
69
Slip op. at 10.
70
Slip op. at 11.
66

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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.

71

550 U.S. 516 (2007).
20 U.S.C. §1400(d)(1)(B).
73
20 U.S.C. §1415(a).
74
20 U.S.C. §1415(i)(3)(B)(i)(III).
72

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Author Contact Information
(name redacted)
Legislative Attorney
[redacted]@crs.loc.gov, 7-....

Congressional Research Service

(name redacted)
Legislative Attorney
[redacted]@crs.loc.gov, 7-....

13

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/crs%3ARL33444. Public record. Not legal advice.