Time to Reverse Shaffer and Arlington Central: IDEA Fairness Restoration Act

COPAA, one of the leading legal advocacy organization that focuses on special education rights is organizing letter writing parties and a campaign generally to overturn the Supreme Court's decisions in Shaffer (burden of proof on parents in due process) and Arlington Central (no expert's fees to parents even when they prevail in due process). Both of these decisions can be overturned with Congressional action to amend IDEIA to expressly shift the burden of proof back to the schools and to allow recovery of expert's fees to prevailing parents. Congressional action will depend upon parents, grandparents, friends, relatives and others who care about these issues to write, fax and place calls to their Senators and Congresspersons. The following is an open letter from COPAA regarding the need for everyone to contact Congress to support the IDEA Fairness Restoration Act. Download idea_fairness_restoration_act_final.pdf which has just been introduced in Congress. This bill would overturn the Arlington Central decision and again allow for recovery of expert's fees when parents prevail in a due process case.

Council of Parent Attorneys and Advocates, Inc.

A national voice for special education rights and  advocacy

PO Box 6767, Towson MD 21285 www.copaa.org

Jessica Butler, Chair, COPAA Board of Directors & Robert Berlow, Government Relations Chair (email: [email protected])

Today (November 15, 2007), Congressman Chris Van Hollen of Maryland and Congressman Pete  Sessions of Texas introduced the IDEA Fairness Restoration Act, H.R. 4188. This bill, would allow prevailing parents to recoup their expert costs in litigation under the Individuals with Disabilities Education Act. The bill would restore Congress’ original intent in granting parents the ability to recover their attorneys’ fees and costs when they prevail in IDEA cases. Congressman's Van Hollen's speech introducing H.R. 4188 is available here.

Parents prevail in IDEA cases only when they show that the school district provided an education so inferior that it failed its legal obligations. But while they can recover their attorneys’ fees, they cannot recover their expert witness costs as a result of the Supreme Court’s decision in Arlington Central School District v. Murphy (2006). The IDEA Fairness Restoration Act would override the Supreme Court’s decision and help even the playing field for parents of children with disabilities.

COPAA is grateful for the hard work and leadership of Congressman Van Hollen and Congressman Sessions on this bill.

Congress included in the IDEA the right to a due process hearing because it recognized that parents needed an independent dispute resolution process to enforce their rights to a free appropriate public education for their children with disabilities. Expert testimony is often necessary in such cases.

In 1986, Congress amended the IDEA to allow parents to recover their attorneys’ fees when they prevail in due process. This was necessary to reverse a Supreme Court decision forbidding such recovery. Congress amended the IDEA because it recognized that parents need lawyers and experts to exercise their right to due process. Congress knew that parents have substantially fewer resources than school districts and many cannot afford expert witness fees.

Twenty-one years later, that reality still has not changed. Approximately 36% of children with disabilities live in families earning less than $25,000 a year; over 2/3 earn less than $50,000 a year. Few parents can afford the thousands of dollars needed to pay qualified medical, educational, and technical experts. While parents must hire expert witnesses to testify, school districts can use therapists, psychologists, and other expert witnesses on their own payroll. 

Approximately 7 million children with disabilities are currently covered by the IDEA. Nonetheless, parents proceed to litigation only as a last resort. In 2003, the GAO reported that there were only 5 hearings per 10,000  special education students. Parents should not be deprived of their right to due process for lack of resources.

COPAA thanks Congressman Van Hollen and Congressman Sessions for introducing this very important legislation. We call upon COPAAns to contact their Congressional offices and urge support of the IDEA Fairness Restoration Act. It is important to send COPAA a copy of your letters and emails to Congress, so that we can show the strength of support for this legislation. There are four ways to do this:

(1) Call 202-224-3121 and ask to speak to your Representative’s Office, When you are  connected, ask for the Education aide. (To find your Congressional Representative’s name, go to http://www.house.gov/ and use the locator in the upper left corner)

(2) Fax your Representative. You can find your Representative’s fax number on his/her webpage at http://www.house.gov/ Be sure to send COPAA a copy of your fax, either by emailing it to [email protected] or by faxing it to 410-372-0209.

(3) Email your Congressperson, http://www.house.gov/writerep/ Before you send your email, please copy it into a word processing document, along with your Congressperson’s name and your name and address, and send that copy to COPAA. You can email it to us at [email protected], fax it to 410-372-0209, or send it to COPAA, PO Box 6767, Towson MD 21285. This will enable us to collect all of the letters and emails for key Congressional aides. This is very important. In the crush of email that reaches Congress about a variety of issues, we need to present a large number of emails and letters to show how strong our support is on this issue.

(4) If you are unable to make long distance phone calls and do not have access to email, please call your local Congressional office. Go to the “Blue Pages” in your local phone book and look in the federal government section for the phone number.

After you contact your Congressional Representative, help your friends and family members write letters and make telephone calls, too!

The IDEA Fairness Restoration Act goes far to remedy the gross imbalance of resources between parents and school districts. We thank Congressman Van Hollen and Congressman Sessions for their dedication to the rights of children with disabilities. While the bill does not deal with Schaffer v. Weast, COPAA will continue to work hard to seek an override of that decision about burden of proof. Meanwhile, we thank you in advance for your letters in support of the IDEA Fairness Restoration Act.  Together, we can make an override of the Murphy decision a reality and protect children’s fundamental rights to a free appropriate public education.

Thank you for your support and joining in our efforts,

Jessica Butler
Chair, COPAA Board of Directors
Robert Berlow
Chair, COPAA Government Relations Committee
Email: [email protected]

Comments

[Mike Parent]

While you provide your advocates with lengthy and detailed information about the law, you failed to address one basic premise of our legal system: If you take someone or some entity to court, you have the responsibility of proving your case. Prior to the Supreme Court ruling, schools were being told, "the plaintiff states that you are guilty of failing to uphold IDEA, prove you are innocent". Furthermore, why shouldn't parents or advocates be responsible for the costs of proving their case? Is a school district reimbursed for its expenditures in defense of law suits?