Dear Members of Congress;
Today all over the United States children with a disability are not being provided an appropriate education via their Individualized Education Program (IEP). While there are many wonderful School Districts there are some that are skirting their responsibility because they know they can get away with it. In these troubled economic times some School Districts are cutting necessary services as a cost saving method knowing that many parents don’t have the means to disagree and file a complaint. The law that governs special education in the United States, the Individuals with Disabilities Education Act (IDEA) was not meant to shift the balance of power to the school districts but that is what has happened. The fairness was taken from IDEA in 2006 and it’s time to give it back and level the playing field for parents.
As you know, The IEP is a written document that is developed for a child with a disability that is eligible for special education. IDEA outlines the procedures that school districts must follow to develop, review, and revise the IEP for each child. In this IEP the School District must outline their written offer to provide a Free Appropriate Public Education (FAPE) to that individual child. Although IDEA was written to require parent participation it is ultimately the School District’s responsibility to make this formal offer of FAPE. It is because of this requirement and the subsequent confluence of events that has shifted the balance of power in an IEP firmly to the School District. Before I outline the events that removed the “fairness” from IDEA for Parents and shifted the power to the School Districts it’s necessary to reiterate why their needs to be an offer of FAPE in the first place. The Ninth Circuit court of appeals in the case of Union v. Smith said:
We find that this formal requirement has an important purpose that is not merely technical, and we therefore believe it should be enforced rigorously. The requirement of a formal, written offer creates a clear record that will do much to eliminate troublesome factual disputes many years later about when placements were offered, what placements were offered, and what additional educational assistance was offered to supplement a placement, if any. Furthermore, a formal, specific offer from a school district will greatly assist parents in "present[ing] complaints with respect to any matter relating to the ... educational placement of the child." 20 U.S.C. Sec. 1415(b)(1)(E).
So although it is the School District’s responsibility to make the offer of FAPE the parents have the right to disagree with the offer and file a complaint via a due process hearing. These and many other procedural safeguards where established to protect parents rights and give them an avenue to advocate for their children when they feel the School District’s offer will not provide FAPE. Subsequent to the reauthorization of IDEA in 2004 there have been two Supreme Court rulings that have substantially limited and reduced the parent’s ability to advocate for their children.
Supreme Court Ruling one Schaffer v. Weast, 546 U. S. (2005)
The Supreme Court decided that the burden of proof in a Due Process Hearing is on the party who files:
The burden of proof in an administrative hearing challenging an IEP is properly placed upon the party seeking relief. In this case, that party is Brian, as represented by his parents. But the rule applies with equal effect to school districts: If they seek to challenge an IEP, they will in turn bear the burden of persuasion before an ALJ. The judgment of the United States Court of Appeals for the Fourth Circuit is, therefore, affirmed.
Supreme Court Ruling two Arlington Central School District v. Murphy, 548 U.S. (2006)
The Supreme Court decided that parents who win in a Due Process hearing are not entitled to recover expert witness fees having to do with the claims established in Due Process.
Finally, respondents vigorously argue that Congress clearly intended for prevailing parents to be compensated for expert fees. They rely on the legislative history of §1415 and in particular on the following statement in the Conference Committee Report, discussed above: “The conferees intend that the term ‘attorneys’ fees as part of the costs’ include reasonable 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.” H. R. Conf. Rep. No. 99-687, at 5.
Whatever weight this legislative history would merit in another context, it is not sufficient here. Putting the legislative history aside, we see virtually no support for respondents’ position. Under these circumstances, where everything other than the legislative history overwhelming suggests that expert fees may not be recovered, the legislative history is simply not enough. In a Spending Clause case, the key is not what a majority of the Members of both Houses intend but what the States are clearly told regarding the conditions that go along with the acceptance of those funds. Here, in the face of the unambiguous text of the IDEA and the reasoning in Crawford Fitting and Casey, we cannot say that the legislative history on which respondents rely is sufficient to provide the requisite fair notice.
We are now in a situation you never wanted or expected:
- The School District is responsible for making the formal written offer of FAPE;
- If the parents file for due process to challenge this offer they have the burden of proof that the School District’s offer is not appropriate;
- In order to prove the School District’s offer is not appropriate they must present expert witnesses and analysis explaining why it’s not appropriate. Expert witnesses are expensive and parents are not allowed to recoup these costs if they are the prevailing party; and
- Due to this MANY parents cannot afford to challenge the School District’s offer of FAPE and must accept whatever is offered no matter how unacceptable.
I truly believe this was not your intention as Members of Congress when you reauthorized IDEA in 2004. Since 2006 there have been many attempts to restore fairness for parents via the IDEA Fairness Restoration Act. Most recently via S. 613 and H.R. 1208 neither of which even made it out of committee. The House has had similar bills for the past three years and none of them made it out of committee. I implore you to help sponsor the next iteration of the IDEA Fairness Restoration Act. There are more than 6.6 million children with IEPs in the United States that need your help. I am only asking you to restore the rights you originally meant to grant parents in 2004 when you reauthorized IDEA. Parents need this in order to balance the power and advocate for their children. Remember the purpose of IDEA is “to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment and independent living.” The more children we help today serving that purpose will significantly reduce the money spent over their lifetimes in government benefits. Many of these government benefits might be avoided if they receive appropriate services now as children.
By contacting your representatives in Congress and asking them to support the IDEA Fairness Restoration Act, you can help restore a parent’s right to recover expert witness fees when they prevail in a due process hearing. This petition is an excellent method to contact the Members of Congress and ask them to support the IDEA Fairness Restoration Act.