COPAA Files Amicus Curiae Brief in Supreme Court Advocating Upholding Right to Recover Expert Witness Fees

The Council of Parent Attorneys and Advocates filed an amicus curiae brief in the Supreme Court in the case of Arlington Central School District Board of Education v. Murphy on March 28, 2006. The Respondent Murphy family, COPAA, and other amici asked the Court to affirm the Second Circuit's ruling that parents can recover their expert witness costs when they prevail in IDEA cases. Such recovery, the Second Circuit had held, is authorized under a provision of the IDEA allowing courts to "award reasonable attorneys' fees as part of the costs to the parents."

Fundamental Equality and IDEA Enforcement Principles Merit Expert Witness Fee Recovery

Without the ability to recover their expert witness fees, few parents could afford to exercise their constitutional and IDEA rights to challenge denial of FAPE to their children by school districts.

This is because parents, who increasingly have the burden of proof after the Supreme Court decision in Schaffer v. Weast, must present admissible evidence about technical and medical issues. Only qualified expert witnesses can present this technical and medical testimony and this testimony can easily cost many thousands of dollars, money that few parents have.

School districts, by way of contrast, employ and therefore are able to rely on psychologists, therapists, and other education experts on their staffs to serve as expert witnesses. Tax dollars pay for these witnesses, as well as any other expert witnesses school districts hire.

There can be no equal opportunity and access to a public education that is both free and appropriate unless all families of children with disabilities--rich, poor and those in the vast middle--can obtain an education on the same terms. Without the ability to recover expert costs, the due process playing field ceases to be level or fair.

Parents who bring IDEA cases act as private Attorneys General, on whom IDEA's enforcement depends. When these parents successfully prosecute their cases and hearing officers or courts find that school districts have violated the law, then parents should recover their expert witness costs. (Of course, if the school district acted in accord with the law, and the parents lose, they recover no fees.)

Expert Witness Fee Recovery Supported by Fourteenth Amendment

Central Arlington School District argued that because Congress enacted IDEA pursuant to its power under the Spending Clause of the United States Constitution expert fees cannot be part of the attorneys' fees or costs. That would not be true even if IDEA were solely a Spending Clause statute, which it is not.

Congress used its Spending Clause authority to provide aid to the states to help fund the IDEA's requirements. However, the IDEA itself, is a civil rights law designed to ensure that equal access to a free appropriate education is available for all and enacted under Congress' authority to enforce the 14th amendment.

Hence, the IDEA is a mixed statute, deriving under both the Spending Clause and the 14th Amendment. The right to recoup expert fees is among parents' due process rights to ensure that equal access is to education available on equal terms to all. The IDEA grants courts considerable discretion and equitable authority to make parents whole where school districts have violated the substantive and procedural requirements of the statute.

Respondent Murphy Family's Brief: Recovery of Expert Fees Natural Reading of IDEA

COPAA's brief as amicus curiae supported the Respondents, the Murphys. The Murphy family explained in its brief that IDEA's cost-shifting provision, 20 U.S.C. § 1415(i)(3)(B), authorizes parents to recover the cost of their expert's participation. This provision provides that a court may "award reasonable attorneys' fees as part of the costs to the parents of a child with a disability" who prevail. The natural reading of this phrase is that it includes all expenses parents must incur in IDEA proceedings, including expert costs.

Interpreting the IDEA's cost-shifting provision to exclude expert costs would be manifestly contrary to the IDEA's requirement that schools provide a "free" education because parents will be required to pay for the experts whose testimony establishes that the school district denied FAPE to their children. Requiring parents to use their money to pay these fees is no different than requiring parents to pay for books, or teachers, or school buildings. Congress could not have intended this result.

The text, history, and purpose of the law demonstrate that the fees provision authorizes expert fee awards. In the Handicapped Children's Protection Act of 1986, Congress underscored that the phrase "the costs to the parents" includes expert costs by directing the General Accounting Office (GAO) to report on the "attorneys' fees, costs, and expenses awarded" to prevailing parents and "the number of hours spent by personnel, including attorneys and consultants" in IDEA proceedings." This clearly means that expert witness costs were to be included under the IDEA provision.

Additionally, parts of the legislative history similarly support this conclusion. The Joint Congressional Statement in support of the HCPA explained, "The conferees intend that the term 'attorneys' fees as part of the costs' include reasonable expenses and fees of expert witnesses and the reasonable costs of any test or evaluation which is found necessary to the preparation of" the parents' case, "as well as traditional costs incurred in the course of litigating a case." H.R. Conf. Rep. No. 99-687, at 5 (1986).

COPAA's amicus brief was written on a pro bono basis by Susan Jaffe Roberts of the law firm of Whiteford, Taylor & Preston, with the volunteer assistance of COPAA's amicus curiae committee. COPAA is grateful for their work.

How to Obtain COPAA's Brief & Other Materials

COPAA's amicus curiae Supreme Court brief in Arlington Central School District Board of Education v. Murphy is available here. The Respondent Murphy family's brief is here; amicus curiae NDRN brief is here. The Second Circuit's opinion holding that parents should be able to recover their expert witness costs is here. For more information on COPAA's amicus curiae committee, visit http://www.copaa.org/about/amicus.html.

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