Council of Parent Attorneys and Advocates
Protecting the Legal and Civil Rights of Students with Disabilities
|Reinstate Prevailing Parents’ Right To Expert Witness Fees|
Why This Issue Is Critical
Without the ability to recover their expert witness fees, few parents are able to afford to exercise constitutional, IDEA and 504 rights to challenge denial of Free Appropriate Public Education (FAPE).
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 educational methodology, complex behavioral supports, medical issues, and other technical subjects. Only qualified expert witnesses can present this technical testimony and such 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. 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).
COPAA is working hard to pass legislation entitled the IDEA Fairness Restoration Act that would reverse Arlington Central School District v. Murphy (2006) in which the Supreme Court decided that parents who win/prevail in their IDEA cases cannot get expert witness fees under the provision in the law that allows parents who win/prevail to get attorneys' fees. Although the legislative history to the IDEA fees provision clearly states that expert fees are covered the Supreme Court refused to consider that history.
The IDEA Fairness Restoration Act was Congress' clearly stated intent in 1986. When Congress passed the Handicapped Children's Protection Act, it recognized that school districts can use therapists, psychologists, and other expert witnesses on their own payroll, or hire outside experts with taxpayer dollars. Over 20 years later few parents can afford the thousands of dollars needed to pay qualified experts. Almost 2/3 of children with disabilities live in families earning under $50,000 a year. When prevailing parents cannot recover expert costs, the playing field is neither level nor fair, and children are denied a free appropriate public education and other fundamental IDEA rights. Parents are left unable to enforce their children's rights unless they can pay for experts out of their pockets. Congress should allow prevailing parents to recover fees just like plaintiffs in ADA, Title VII, and other civil rights cases.
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