In 2006, the Supreme Court issued a decision in Arlington Central School District vs Murphy finding that parents who were prevailing parties in a due process hearing or subsequent litigation were barred from recovering expert witness fees. Around the same time period, the Supreme Court issued a decision in another case that clarified the burden of proof in special education disputes; a ruling that has subsequently placed that burden onto parents in almost all cases arising under the IDEA.
The Unfairness Problem
School Districts can spend tax dollars to employ and hire experts to provide testimony in due process hearings and litigation. School Districts use their resources to fund psychologists, specialists, technical experts, etc to provide testimony related to programs, placements, services, assessment findings, and a child's unique needs.
Most parents don't have the resources to access expert witnesses and bear that financial burden. Experts are necessary to be able to have a fair change at prevailing in a due process hearing and litigation! If the School District is putting on testimony by psychologists and specialists, and the parents are unable to, it will be extremely difficult for parents to meet their burden of proof.
This makes due process unfair and often not affordable. Advocates and Attorneys see this problem in real life on a daily basis. We see parents who are watching their child struggle and fail in a program that is not appropriate, with insufficient services, or without proper supports in the classroom. The school district has psychologists and specialists who are "backing" the program. Parents need access to experts who can testify about what services and programs are required to meet those students' unique needs. We see kids who are completely denied eligibility for services. Parents cannot possibly challenge that determination without an expert who can testify about the child's diagnosis and how it impacts their ability to access their education. We see kids who are on their way to expulsion, and school district "experts" who claim that their behavior was not related to their disability. Parents need the ability to utilize experts to testify as to how and why the behavior is a manifestation of the disability.
If the due process proceedings under the IDEA are not affordable, and therefore not accessible, then parents are denied their rights and children are ultimately denied a FAPE. The underlying IEP process and decision-making regarding a child's program becomes more and more unfair and one sided, because the parents' right and ability to challenge the IEP and the school district's decisions becomes meaningless.
The IDEA Fairness Restoration Act seeks to override the Supreme Court's ruling in Murphy, and thereby restore the ability of parents who prevail in due process or litigation to be reimbursed for expert witness fees incurred during the process.
The Act will level the playing field for parents, enabling them to have a fair chance in a meaningful process to seek a remedy when a child is denied FAPE by the school district.
For more information about the act, including the full text and a brochure, check out http://www.copaa.org/news/IFRA_intro_2009.html. Over 185 disability organizations support the IDEA Fairness Restoration Act, which is a bipartisan bill. You can also read more about it at http://www.wrightslaw.com/nltr/09/nl.0630.htm
What you can do
Call your congressperson and ask them to support the IDEA Fairness Restoration Act. July 9th is the national call in day! You can call your representative and tell them why the Act is important, and why it needs to pass to ensure that parents have meaningful access to due process procedures.
Find out who your congressperson is and how to reach them directly at www.house.gov. You can also call the switchboard at 202-224-3121 and ask to speak to your congressperson. Remember to ask for the Education Aide in order to speak to a person who is interested in this issue! Leave a message, and call back, if you need to!