Arlington Central School District v. Murphy, Pearl, et vir. (06/26/2006)

Question presented: Whether the fee-shifting provision of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. 1415(i)(3)(B), which provides that the court may "award reasonable attorneys' fees as part of the costs" to a prevailing party, authorizes an award of expert fees?

BY GERRY SMITH, MEDILL NEWS SERVICE

In August 1999, Pearl and Theodore Murphy filed a complaint on behalf of their son Joseph Murphy, who has dyslexia and several other cognitive disabilities, claiming that the Arlington Central School District did not prepare a proper Individualized Education Program (IEP) for their son.

Under the Individuals with Disabilities Education Act (IDEA), local school systems are required to develop an IEP for each child with a disability. The Murphys alleged that the school district did not provide a "free appropriate public education" for their child as required by the law, and was therefore required to pay their child's tuition at a private school that specializes in educating children with learning disabilities. The Murphys won their case in district court and the decision was affirmed in the 2nd Circuit Court of Appeals, in New York.

When the case returned to district court in 2003, the Murphys sought $29,350 in fees for the services of Marilyn Arons, an educational expert and consultant they had hired for their case. While the IDEA authorizes that school systems reimburse parents for "attorney's fees" if they successfully prosecute a claim under the law, the statute makes no mention of awarding "expert fees."

The school district opposed the Murphys' claim, arguing that Arons was not eligible to receive attorney's fees because she is not a licensed attorney, nor eligible to receive expert fees because they cannot be recovered under the IDEA. In addition, the school district said Arons did not establish a rate for her services nor provide sufficient time records. (In 2000, the Delaware Supreme Court ruled that by representing families of children with disabilities in due process hearings, Arons had engaged in the unauthorized practice of law.)

In other cases addressing this issue, expert services have included observing the student in class, interviewing teachers and administrators, attending IEP meetings, preparing reports and advising parents. The district court ruled that Arons could collect fees for her "expert consulting services," but could not collect attorney's fees for any of her work that was similar to that of an attorney, and awarded the Murphys $8,650.

The 2nd Circuit unanimously upheld the district court decision that expert fees were implicitly covered. Although it acknowledged that IDEA does not expressly authorize such fees, the 2nd Circuit found that to rely solely on the text of the statute and ignore the context in which it was created would cause an outcome not intended by Congress. The court found that the House Conference Committee Report on the IDEA's predecessor, the Handicapped Children's Protection Act of 1986, briefly defined attorney's fees as "a term of art" that required a different interpretation from the text of the statute.

In so holding, the court noted that it was joining the 3rd Circuit in its ruling that expert fees warrant compensation, although the 3rd Circuit's ruling did not directly address whether IDEA itself authorizes the award of such fees to prevailing parents. However its conclusion runs counter to decisions made by the 7th and 8th circuits that expert fees are not recoverable.

The District of Columbia Circuit agrees with the 7th and 8th circuit decisions, ruling in 2005 in Goldring v. District of Columbia that "a sentence in a conference report cannot rewrite unambiguous statutory text."

Raymond Kuntz, an attorney for the school district, agreed. "The 2nd Circuit Court of Appeals reached to find something in those congressional hearings that they didn't find in the statute and imported it into the statute. The question one must ask is what stayed Congress's hand in writing the words that parents wanted to see there?"

Lawyers for the school district asked that the conflicting circuit court opinions be reviewed by the U.S. Supreme Court because the 2nd Circuit's decision could lead to increased litigation costs for parents and schools and divert attention and resources from the IDEA. They also said the rulings conflict with both the text of the IDEA statute and a 1991 Supreme Court precedent in West Virginia University Hospitals, Inc. v. Casey.

In Casey, the Supreme Court did not authorize awarding fees in civil rights litigation for experts who did not testify because it found that was not the intent of Congress. If attorney's fees included expert fees, the Court ruled, "then dozens of statutes referring to the two separately become an inexplicable exercise in redundancy."

After Casey, Congress considered but eventually rejected adopting the Civil Rights Act of 2004, which would have amended IDEA and numerous other civil rights statutes to authorize an award of expert fees.

On Jan. 6, 2006, the Supreme Court agreed to review the question of whether the fee-shifting provision of the IDEA, which provides that the court may "award reasonable attorneys' fees as part of the costs" to a prevailing party, authorizes an award of expert fees.

The 2nd Circuit's ruling may have a significant impact on schools in that circuit, particularly in New York, which had the highest rate of due process hearings for students receiving special education benefits in 2003, according to a General Accounting Office report.

The most recent Supreme Court ruling on the IDEA was in Schaffer v. Weast in November 2005, in which the Court ruled 6-2 that the burden of proof in challenging an IEP is on the party seeking relief, and that the IDEA ensures that parents have access to the opinions of an independent expert who has "the firepower to match the opposition." Chief Justice John Roberts, who said in confirmation hearings that civil rights statutes should be interpreted according to Congressional intent, recused himself from the case.

On June 26, 2006, the Court sided with the school district, holding 6-3 that the IDEA doesn't authorize prevailing parents to recover expert fees.

Justice Samuel Alito wrote the Court's majority opinion. Justices David Souter, Stephen Breyer and John Paul Stevens dissented.

Attorneys in the case:Raymond G. KuntzKuntz, Spagnuolo, Scapoli & Schiro, P. C.(914) 234-6363444 Old Post Office RoadP. O. Box 396Bedford, NY 10506Party name: Arlington Central School District Board of Education

Attorneys for Respondent:David C. VladeckInstitute for Public Representation(202) 662-9535Georgetown University Law Center600 New Jersey Ave., NWWashington, DC 20001Party name: Pearl Murphy, et vir

Other:PAUL D. CLEMENT, Solicitor GeneralWAN J. KIM, Assistant Attorney GeneralGREGORY G. GARRE, Deputy Solicitor GeneralDAVID B. SALMONS, Assistant to the Solicitor GeneralDAVID K. FLYNNCONOR B. DUGAN