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The U.S. Supreme Court appeared sharply divided last week over the question of whether the main federal special education law allows parents to be reimbursed for the costs of experts when they prevail in legal proceedings.

The case argued on April 19 asks whether a court may require a school district to pay the fees of an expert who assists parents when the parents win a legal dispute with the district over the educational plan provided for their child under the federal Individuals with Disabilities Education Act.

鈥淭his statute is unambiguous,鈥� said Raymond G. Kuntz, the lawyer for a New York state school district. 鈥淓xpert fees are not costs鈥� that the IDEA authorizes for reimbursement to parents, he said.

Not so, countered David C. Vladeck, the lawyer representing a family who used a nonlawyer expert in their dealings with the school district over the individualized education program, or IEP, for their son.

鈥淚t is clear Congress intended 鈥榗osts鈥� to have a broader meaning鈥� than legal expenses, Mr. Vladeck said during the argument in Arlington Central School District v. Murphy (Case No. 05-18).

Pearl and Theodore Murphy, whose son has multiple disabilities, won their original case against the 10,000-student Arlington Central district, in upstate New York, and asked a U.S. District Court judge in New York City to award them $29,350 in expert fees for the services of an educational consultant, Marilyn Arons. The judge concluded that the parents were entitled to recover part of that sum, or $8,650.

The school district appealed the fee award and lost last year in the U.S. Court of Appeals for the 2nd Circuit, in New York City. The Supreme Court agreed to review the case, with the school district arguing in part that federal appeals courts have taken several different tacks in interpreting a provision of the IDEA that authorizes the award of attorneys鈥� fees to the prevailing party in a special education dispute. (鈥淎dvocacy for Parents Key to IDEA Case,鈥� April 12, 2006)

During the oral argument last week, Mr. Kuntz, the district鈥檚 lawyer, was adamant that the IDEA provides a 鈥渃lear rule鈥� that limits parents to reimbursement for attorneys鈥� fees and related costs, such as for photocopying documents, and does not cover the costs of experts hired by parents.

To Justice Steven G. Breyer, however, the law wasn鈥檛 so clear.

鈥淗ow is 鈥榗osts鈥� not unambiguous?鈥� he said to Mr. Kuntz. 鈥淛ust reading the word five times鈥� doesn鈥檛 resolve the problem, he said.

After getting Mr. Kuntz to acknowledge that costs conceivably could have a broader meaning, Justice Breyer said, 鈥淥nce you say 鈥榠t could,鈥� then it鈥檚 reasonable to ask what the members of Congress were thinking.鈥�

Legislative History

That was an entry point to what turned out to be the centerpiece of the hourlong argument: a debate over the proper role of legislative history in interpreting congressional intent.

Congress had amended the predecessor of the IDEA in 1986 to authorize the award of attorneys鈥� fees to parents. It was responding to a 1984 Supreme Court ruling that held the special education law did not authorize such fees.

A House-Senate conference report on the 1986 legislation said that lawmakers intended for attorneys鈥� fees to include 鈥渞easonable expenses and fees of expert witnesses and the reasonable costs of any test or evaluation which is found to be necessary for the preparation of the case.鈥�

Mr. Vladeck, representing the Murphys, said the conference report was circulated to all members of Congress.

鈥淭he vote technically, of course, is a vote to approve the conference report,鈥� he said, referring to the final vote on the legislation.

But Justice Antonin Scalia, the leader of a school of thought that calls for looking only to a statute鈥檚 text to interpret its meaning, mocked such use of legislative history. He asked whether Mr. Vladeck thought the members of Congress who were not on the conference committee had even read the report.

鈥淲hat about the president? When he signed it, you think he read the conference report, too?鈥� Justice Scalia said, to snickers in the courtroom.

Mr. Vladeck replied that at the time the provision became law, Congress expected that the courts would use legislative history in interpreting the statutes.

Justice Breyer, a former Senate Judiciary Committee staff member, is the leader of the contrary school of thought鈥攖hat legislative history in the form of committee reports and floor statements should be studied for a statute鈥檚 meaning when the text is ambiguous. He suggested that the 1986 conference report was fairly convincing that Congress intended a broader definition of 鈥渃osts鈥� that parents could recover.

鈥淲hy are we metaphysically trying to guess what Congress intended, when they told us?鈥� he said to Mr. Kuntz.

David B. Salmons, an assistant to the U.S. solicitor general, argued for the Bush administration on the side of the school district. He said Congress knew how to distinguish between attorneys鈥� fees and other costs that could be recovered under the statute.

Scarce Resources

Every member of the court except Justice Clarence Thomas asked a question during the argument session.

Justice Samuel A. Alito Jr. at one point asked Mr. Vladeck whether a broader definition of allowable costs might include parents鈥� travel costs or lost wages for participating in legal proceedings. Mr. Vladeck said courts have typically applied a 鈥渞easonableness standard鈥� to any such requests.

Justice Anthony M. Kennedy, who may be the swing vote in the case, at times appeared more sympathetic to the school district鈥檚 arguments. But he also noted that districts have 鈥渃onsultants and experts鈥� at their disposal for the typical IEP proceeding.

Turning to the main goal of the IDEA, Mr. Vladeck portrayed parents as needing the help of experts when advocating for their children with school districts.

The Supreme Court鈥檚 decision late last year in Schaffer v. Weast has made that battle somewhat more difficult by allowing states to require the party initiating a legal dispute鈥攗sually parents, not school districts鈥攊n IDEA cases to bear the burden of proof. (鈥淗igh Court Boosts Districts in IDEA Cases,鈥� Nov. 30, 2005)

鈥淧arents, post-Schaffer, cannot hope to meet their burden of production, let alone the burden of proof, without access to experts,鈥� Mr. Vladeck said.

Mr. Kuntz, the school district鈥檚 lawyer, said a victory for the parents on the issue of experts鈥� fees would shift scarce resources away from aiding students. He noted that Congress has long sought to reduce the costs of litigation under the IDEA.

The high court should not be 鈥渆nergizing the litigation aspects of this [law] by transferring costs to the school district,鈥� Mr. Kuntz said.

The court is expected to rule in the case by July.