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The Supreme Court's Decisions in Schaffer and Murphy: What You Need to Know

Joe Murphy was an 8^th grade student in upstate New York in September 1997.[1] He suffered from what a neuropsychologist described as a “near-total incapacity to process language.” A speech language evaluator for the school district concluded that Joe was academically and emotionally at “high-risk,” and recommended placement in a residential program for language-impaired students. Joe’s parents hired an educational consultant, Marilyn Arons, to review Joe’s evaluations, perform her own assessment, attend IEP meetings, and meet with district officials to urge a more intensive speech/language placement. When the district refused, Joe’s parents placed him in the Kildonan School, a private school for learning disabled students. They also filed for due process seeking to establish that Kildonan was an appropriate placement and to force the district to reimburse them for the tuition. The Murphy’s did not retain a lawyer to represent them. However, Ms. Arons continued to advise them in her capacity as a special education consultant, including assisting in reviewing Joe’s educational evaluations, preparing questions for the district’s experts, and preparing their case.

The Murphy’s ultimately prevailed in their suit. The hearing officer found that the public high school placement proposed by the district was not appropriate, that Kildonan was appropriate, and that the district must reimburse the parents for tuition incurred during the 1999-2000 school year. During the appeal process, first before the State Review Officer, and then in federal district and appeals courts, it was determined that the district was liable not only for reimbursement of the past year’s tuition, but also for payment of tuition at Kildonan going forward.

The Murphy's prevailed in the litigation. Thereafter, they filed a motion in federal courty ” filed a motion in the federal district court seeking reimbursement for the expert services provided by Ms. Arons under the Individuals with Disabilities Education Act (IDEA). Although the district court found that Ms. Arons was qualified as an expert and entitled to reimbursement for the services she provided to the Murphy’s, the court reduced the amount sought from $29,350 to $8,650 based on its finding that only the services she provided after the due process petition was filed and before a key ruling by the district court was entered in their favor were compensable under the IDEA. The school district appealed the award of expert fees to the United States Court of Appeal for the Second Circuit, where it was affirmed. That decision led to the district’s appeal to the Supreme Court.

The issue presented on appeal to the Supreme Court was whether Ms. Aron's expert fee was a "cost" that was recoverable from the state under an IDEA provision permitting an “award [of] reasonable attorney fees as part of the costs” to prevailing parents. In other words, the question was, “What does the word “costs” mean, as used in the statute? Does it include expert fees?

Justice Samuel Alito, the most recent Bush nominee to the Supreme Court, wrote the opinion for the majority. He wrote that expert fees are not part of reimbursable “costs” under the IDEA. He reasoned that for legislation like the IDEA, enacted under the Spending Clause of the Constitution, only an unambiguous statement of responsibility for reimbursement of expert fees would be sufficient to give states the required “notice” that they would be liable for such costs if they accepted special education funds from the federal government. He concluded that the word, “costs,” in the IDEA was not sufficiently clear to include expert fees.

Justice Stephen Breyer, in his dissenting opinion, asserted that the word, “costs,” in the IDEA included reimbursement for expert fees. First, he asserted that this is what Congress intended, as demonstrated by the Conference Report Congress approved when it enacted the IDEA in 1986. That Conference Report stated that “the term ‘attorneys’ fees as part of the costs’ include[s] reasonable expenses of expert witnesses and reasonable costs of any test or evaluation which is found to be necessary for the preparation of the parent or guardian’s case in the action or proceeding.” Second, he asserted that interpreting “costs” to include expert fees is consistent with the IDEA’s purpose to guarantee a “free” and “appropriate” public education for “all” children with disabilities. If parents are unable to recover essential experts’ fees under IDEA, he reasoned, the right to a free public education guaranteed by the Act is diminished.

Our Take on the Murphy Case: Justice Breyer’s dissenting opinion is persuasive. The legislative history of the IDEA at the time it was enacted in 1986 leaves little doubt that Congress intended for a parent who prevails in a due process proceeding to recover reasonable expert fees. “Justice,” at least under the IDEA, was not intended to be limited to only those parents who can pay for it. But there has been a change on this Supreme Court, with the addition of Chief Justice Roberts and Justice Alito this year. It is impossible to know what will happen in the future. Only six cases under the IDEA or its predecessor, the Education for All Handicapped Children Act, have reached the Supreme Court in the last 30 years. But it seems likely that the Court will take a more restrictive view of the rights of parents and children if another case comes before it under the IDEA in the foreseeable future.

Brian Schaffer was a 14-year-old boy with Down’s Syndrome when this case began in 1998. Brian had enrolled in the Montgomery County (Maryland) School District in the fall of 1997, having spent the previous seven years in a private residential school that could no longer meet his needs. The case is procedurally complex. In sum, on the parents’ challenge to the IEP proposed by the district, the hearing officer held that the evidence offered at the hearing was in “equipoise,” a fancy way of saying that it didn’t favor either side.

The issue presented to the Supreme Court was essentially this: Which party, the parents or the district, is the winner in an IDEA action where the evidence offered by one party is equal in weight to the evidence offered by the other? Lawyers refer to it as the question of which side has the “burden of proof,” or the responsibility to prove that its evidence “outweighs” the evidence offered by the other party. Put still another way, if there’s a “tie” in the evidence, who should win under the IDEA?

The Supreme Court held, in a 6 to 2 opinion written by Justice O’Connor, that, in the absence of clear direction in the IDEA itself as to who should bear the burden of proof, the party seeking to challenge the IEP bears the burden of proof. The majority rejected the parents’ argument that assigning the burden or proof to school districts will further the IDEA’s purpose to help ensure that children receive a free appropriate public education, emphasizing that it is a rare case where, like this one, the evidence is found to be in “equipoise.” It also rejected the argument that placing the burden on the district to prove that its IEP provides FAPE is reasonable in light of the “natural advantage” enjoyed by the district in both information and knowledge. Justice O’Connor pointed to provisions of the IDEA requiring the district to produce the student’s educational records and noted Congress’ apparent belief that parents with “legitimate grievances” will prevail if the procedures specified in the Act are followed. Accordingly, the Court ruled against the parents.

Our Take on the Schaffer Case: The Court essentially placed litigants in special ed cases under the same rule governing the “burden of proof” as applies to litigants in most other kinds of cases: He who brings the lawsuit must prove his case. In a traffic accident, for example, the party bringing the action has the burden to prove that the driver of the other vehicle was at fault. Hence, the Court rejected the argument that parents of a disabled child are entitled to the special advantage that would result from placing the burden of proof on the school district in all cases. Since Schaffer, the practice in Pennsylvania therefore has changed: A parent challenging an IEP now must shoulder the burden of proof.

Neither case is good news for Pennsylvania parents of special education students. Though cases when the evidence is “tied” between the parent and the district are rare, hearing officers and courts still pay attention to who has the burden of proof in due process cases. Under prior law in Pennsylvania, the burden was on the district; now it is on the parent. In addition, though still unresolved in Pennsylvania due process cases, it appears likely that parents in these suits will be required to put on their case first, before the school district puts on its case and its witnesses. While many lawyers like the idea of putting our “side” of the case first, we recognize that some parents handling their own cases without counsel may be concerned about having to “lead off” at the hearing.

As to Murphy, it is a significant loss for parents to lose the right to recover what can be costly expert fees when they prevail in a due process case. So the Murphy case potentially increases the costs to parents of suing a school district while it decreases the amount that districts can be required to pay if they lose.

So what should you do? Full speed ahead! Time will tell whether school districts will be emboldened by these two decisions and take a harder line in dealing with parents. But our advice to parents is still the same: Follow the same principles that we talk about in these pages and that Pete and Pam Wright talk about at www.wrightslaw.com. Get organized. Learn about tests and measurements. Document important conversations. Prepare carefully for school meetings. Plan. Follow through. Learn more about your rights under the law. Retain a non-attorney education advocate (no fee, if possible) to help with your child’s IEP and attend school meetings with you. Be persistent, proactive, polite, positive, strong. Be an effective advocate.

If you ultimately must go to due process to get the services your child needs, then that is what you will do. In the majority of cases, expert fees will be in the range of $1,000 to $2,500. In such cases, talk with your attorneys about whether they will share in those costs in some fair way. We are willing to have that discussion with you. In complex cases, where expert fees can amount to very substantial sums,ot $5,000 to $10,000 or more, you naturally will need to consider those costs, just as you will need to carefully evaluate every other aspect of your case before filing for due process. Know what you are getting into before you do it!

One more thing. Always remember what's at stake here. What is more important to you than your children’s education and future? The decisions in Schaffer and Murphy may make things a little tougher. But so what? It’s just one more challenge that you can and will meet because your child is counting on you to meet it.

So here is the message we urge you to take away from these two decisions: Be even more resolved! Be even more determined! With that attitude, nothing will stop you from getting the services your child needs.

For more information about what’s new in Pennsylvania law and practice affecting children with disabilities, including IDEA 2004 and the Gaskin settlement, call us now at 610.606.5006 or email us now!

Education Law Advocates, P.C. skillfully represents parents and their children in southeastern Pennsylvania, including the communities of West Chester, Lower Merion, Coatesville, Paoli, Downingtown and Upper Darby, and throughout the Philadelphia metro area, including Chester County, Montgomery County, Delaware County, Bucks County, Lancaster County and Berks County.

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Supreme Court Special Education Cases 2005/06 Term