The Individuals with Disabilities Education Act (IDEA): Supreme Court Decisions

The Individuals with Disabilities Education Act
(IDEA): Supreme Court Decisions
Updated April 16, 2008
Nancy Lee Jones
Legislative Attorney
American Law Division

The Individuals with Disabilities Education Act (IDEA):
Supreme Court Decisions
Summary
The Individuals with Disabilities Education Act (IDEA) is both a grants statute
and a civil rights statute. It provides federal funding for the education of children
with disabilities and requires, as a condition for the receipt of such funds, the
provision of a free appropriate public education (FAPE). The statute also contains
detailed due process provisions to ensure the provision of FAPE. Originally enacted
in 1975, the act responded to increased awareness of the need to educate children
with disabilities, and to judicial decisions requiring that states provide an education
for children with disabilities if they provided an education for children without
disabilities. Since its enactment, the Supreme Court has addressed several issues
arising under the act, including the interpretation of FAPE, the interpretation of the
“stay-put” provision in the due process requirements, and interpretations of related
services. This report discusses the Supreme Court’s decisions under IDEA and will
be updated as appropriate.

Contents
In troduction ......................................................1
Free Appropriate Public Education....................................1
Statutory Provision.............................................1
Hendrick Hudson Central School District v. Rowley..................2
Private School Placement...........................................5
Background ..................................................5
Supreme Court Decisions.......................................6
Related Services...................................................7
Statutory Provisions............................................7
Supreme Court Decisions.......................................8
Procedural Safeguards..............................................9
Background and Statutory Provisions..............................9
Honig v. Doe.................................................9
Attorneys’ Fees..................................................10
Expert Witness Fees...............................................10
Burden of Proof..................................................11
Statutory Provisions...........................................11
Schaffer v. Weast.............................................12
Parental Rights to Bring Suit Pro Se..................................12

The Individuals with Disabilities Education
Act (IDEA): Supreme Court Decisions
Introduction
The Individuals with Disabilities Education Act (IDEA)¹ is both a grants statute
and a civil rights statute. It provides federal funding for the education of children
with disabilities and requires, as a condition for the receipt of such funds, the
provision of a free appropriate public education (FAPE). The statute also contains
detailed due process provisions to ensure the provision of FAPE. Originally enacted
in 1975, the act responded to increased awareness of the need to educate children
with disabilities, and to judicial decisions requiring that states provide an education
for children with disabilities if they provided an education for children without²
disabilities. Since its enactment, the Supreme Court has addressed several issues
arising under the act, including the interpretation of FAPE, the interpretation of the
“stay-put” provision in the due process requirements, and interpretations of related
services. The Supreme Court’s most recent IDEA decision is Board of Education of³
the City School District of the City of New York v. Tom F. where in a per curiam
opinion the Court, dividing 4-4, upheld an appeals court ruling that parents of a child
with a disability are entitled to private school reimbursement. This report discusses
the Supreme Court’s decisions under IDEA.
Free Appropriate Public Education
Statutory Provision
The core requirement of IDEA is that a state must provide children with
disabilities a free appropriate public education in order to receive federal funding⁴
under the act. FAPE is defined in the statute as meaning “special education and
related services that — (A) have been provided at public expense, under public

¹ 20 U.S.C. §1400 et seq.
² For a more detailed discussion of the congressional intent behind the enactment of P.L.

94-142, see CRS Report 95-669, The Individuals with Disabilities Education Act:

Congressional Intent, by Nancy Lee Jones. IDEA has undergone several reauthorizations,
including the most recent one, which resulted in P.L. 108-446. For a discussion of this
reauthorization, see CRS Report RL32716, The Individuals with Disabilities Education Act
(IDEA): Analysis of Changes Made by P.L. 108-446, by Richard N. Apling and Nancy Lee
Jones.
³ 552 U.S. __ (2007); 2007 U.S. L^EXI^S 11481 (October 10, 2007).
⁴ 20 U.S.C. §1412(a)(1).

supervision and direction, and without charge; (B) meet the standards of the State
educational agency; (C) include an appropriate preschool, elementary school, or
secondary school education in the State involved; and (D) are provided in conformity
with the individualized education program required under section 614(d).”⁵
Hendrick Hudson Central School District v. Rowley
Board of Education of the Hendrick Hudson Central School District v. Rowley,⁶⁷
decided in 1982, was the first IDEA case to reach the Supreme Court. When the
IDEA complaint was first filed, Amy Rowley was a deaf first grader whose parents
were also deaf. Her individualized education program (IEP) provided that she should
be educated in a regular classroom, use an FM hearing aid, and receive instruction
from a tutor for the deaf for one hour each day and from a speech therapist for three
hours each week. Amy’s parents agreed with parts of the IEP but insisted that she
be provided a sign-language interpreter in all her academic classes. The request for
an interpreter was denied, and the Rowleys pursued their due process remedies. The
district court found that Amy was a remarkably well-adjusted child who had an
extraordinary rapport with her teachers. The court also found that Amy was
performing better than the average child in her class and was advancing easily from
grade to grade but was understanding considerably less of what goes on in class than
she could if she were not deaf. This disparity between Amy’s achievement and her
potential led the district court to conclude that she was not receiving a free
appropriate public education. This decision was affirmed by the court of appeals, but
the U.S. Supreme Court reversed.
The Supreme Court noted that there was no substantive language in IDEA
regarding the level of education to be accorded to children with disabilities and
observed that “(i)mplicit in the congressional purpose of providing access to a ‘free
appropriate public education’ is the requirement that the education to which access
is provided be sufficient to confer some educational benefit upon the handicapped⁸
child.” The Court concluded that “the ‘basic floor of opportunity’ provided by the
Act consists of access to specialized instruction and related services which are⁹
individually designed to provide educational benefit to the handicapped child.” The
Court held that the requirement of FAPE is met when a child is provided with
personalized instruction with sufficient support services to benefit educationally from
that instruction. This instruction must be provided at public expense, meet the state’s
educational standards, must approximate the grade levels used in the state’s regular
education, and must comport with the child’s IEP. The Court found that when a
child with a disability is mainstreamed, “the system itself monitors the educational

⁵ 20 U.S.C. §1401(9).
⁶ 458 U.S. 176 (1982).
⁷ For the purposes of this report, the law will generally be referred to as IDEA, the
Individuals with Disabilities Education Act, although it was originally known as the
Education for All Handicapped Children Act, EAHCA. The name was changed by P.L. 101-

476.

⁸ 458 U.S. 178 at 200.
⁹ Id. at 201.

progress of the child.... The grading and advancement system thus constitutes an
important factor in determining educational benefit.”¹⁰ Therefore, the IEP “should
be formulated in accordance with the requirements of the Act and, if the child is
being educated in the regular classrooms of the public education system, should be
reasonably calculated to enable the child to achieve passing marks and advance from
grade to grade.”¹¹
However, the states are not required to “maximize” each child’s potential.¹² If
the child is progressing from grade to grade and making measurable and adequate
gains, the FAPE requirement is met.
The Supreme Court also stated that in ensuring that the requirements of the act
have been met, courts must be careful to avoid imposing their view of preferable
educational methods upon the states. The primary responsibility for formulating the
education provided was left by IDEA to state and local educational agencies. As the
Court noted, determining when children with disabilities are “receiving sufficient
educational benefits to satisfy the requirements of the Act presents a more difficult
problem”¹³ than complying with requirements for access to education. Due to the
wide spectrum of disabilities, the Court did not attempt to establish any one test for
determining the adequacy of educational benefits and confined its analysis to the
facts of the case.
Rowley remains a seminal decision under IDEA and is often cited by courts
attempting to determine the parameters of a free appropriate public education.
However, the lower courts have varied in how expansively they have interpreted
Rowley, with some courts interpreting Rowley to support schools’ IEPs if the
procedural requirements have been met, even if the educational progress is minimal.
For example, in Fort Zumwalt School District v. Clynes,¹⁴ the eighth circuit
emphasized Rowley’s “access to education” requirement and held that the IEP was
adequate. The court noted that the child was making progress, earning passing marks
and advancing to the next grade, despite reading proficiency scores in the second to
ninth percentile. However, the dissenting opinion described the child’s achievement
as “trivial” and argued that “(t)his cannot be the sort of education Congress had in
mind when it enacted IDEA.”¹⁵ Other courts have read Rowley more expansively.
For example, in Polk v. Cent. Susquehanna Intermediate Unit 16,¹⁶ the third circuit
examined the “some educational benefit” language in Rowley and held that it

¹⁰ Id at 203.
¹¹ Id. at 203-204.
¹² Id. at 198.
¹³ Id. at 202.
¹⁴ 119 F.3d. 607 (8^th Cir. 1997), cert. denied, 523 U.S. 1137 (1998).
¹⁵ Id. at 617 (dissenting opinion by Judge Gibson). For a more detailed discussion of Fort
Zumwalt see Charlene K. Quade, “A Crystal Clear Idea: The Court Confounds the Clarity
of Rowley and Contorts Congressional Intent,” 23 Hamline J. Pub. L. and Policy 37 (2001).
¹⁶ 853 F.2d 171 (3d Cir. 1988), cert. denied., 488 U.S. 1030 (1989).

required an IEP to provide more than de minimis educational benefit.¹⁷ Similarly, the
fifth circuit, in Cypress-Fairbanks Indep. School District v. Michael F.,¹⁸ quoted
from Rowley and concluded that “the educational benefit that an IEP is designed to
achieve must be ‘meaningful.’”¹⁹ In order to determine whether an IEP meets this
standard, the Cypress-Fairbanks court identified four factors: (1) the program is
individualized, (2) the program is administered in the least restrictive environment,
(3) the services are provided in a coordinated and collaborative manner, and (4)
positive academic and nonacademic benefits are demonstrated.²⁰ Other courts have
looked at academic achievement testing, as well as grades, to measure educational
benefit. For example, in Houston Independent School Dist. v. Bobby R.,²¹ the court
looked at the child’s scores on the Woodcock Johnson intelligence and achievement
test to determine the child’s educational progress.²²
The application of the Supreme Court’s analysis in Rowley to current
controversies is somewhat confused by the change in the usage of the term
“educational standards.” Although the Supreme Court in Rowley required that the
instruction given to a child with a disability meet the state’s educational standards,
the term “educational standards” has taken on a different meaning in recent years.
Currently, the term “educational standards” is likely to refer to specific content-based
standards that delineate what a child should know and be able to perform at various
points in his or her educational career.
The 1997 Amendments to IDEA²³ reflected the standards-based education
movement. P.L. 105-17 significantly changed the IEP requirements and required that
the IEP include, among others, a statement of the child’s present levels of educational
performance, including the effect of the child’s disability on the child’s involvement
and progress in the general curriculum, and a statement of measurable annual goals
designed to enable the child to progress in the general curriculum.²⁴ In addition, in
the statement of findings for the 2004 reauthorization, P.L. 108-446 states that
“[a]lmost 30 years of research and experience has demonstrated that the education
of children with disabilities can be made more effective by — (A) having high
expectations for such children and ensuring their access to the general curriculum in
the regular classroom to the maximum extent possible....”²⁵

¹⁷ Id. at 180-185.
¹⁸ 118 F.3d 245 (5^th Cir. 1997), cert. denied, 522 U.S. 1047 (1998).
¹⁹ Id. at 248.
²⁰ Id. at 253.
²¹ 200 F.3d 341 (5^th Cir. 2000), cert. denied, 531 U.S. 817 (2000).
²² Id. at 349.
²³ P.L. 105-17.
²⁴ P.L. 105-17 §614(d)(1)(A), 20 U.S.C. §1414(d)(1)(A). IDEA was most recently
reauthorized by P.L. 108-446 in 2004. This revision continued the standards based
requirements of P.L. 105-17.
²⁵ 20 U.S.C. §1400(c)(5)(A).

The Supreme Court in Rowley held that FAPE requires that “the ‘basic floor of
opportunity’ provided by the Act consists of access to specialized instruction and
related services which are individually designed to provide educational benefit to the
handicapped child” and that the instruction must meet the state’s educational
standards.²⁶ Given the fact that the standards-based education movement, as reflected
in IDEA and The No Child Left Behind Act (NCLBA),²⁷ has raised the standards
from what was required in the version of the law the Supreme Court interpreted,
questions could be raised concerning the current application of Rowley. It could be
argued that because the Supreme Court emphasized that courts must not impose their
view of preferable educational methods on the states, the change in the standards
does not affect the core of the Court’s Rowley holding. However, the Court also
stated that the child’s access to education must be sufficient to confer “some
educational benefit” and that states are not required to “maximize” each child’s
potential. The Supreme Court has not overruled Rowley, and it could be argued that
the Rowley standard is flexible enough not to present a conflict with subsequent
changes in educational law relating to standards-based instruction. On the other
hand, one commentator has argued that the Supreme Court would not reach the same
decision today as it did in Rowley. “The cryptic and intangible Rowley standard of
benefit is rightfully dying, if not already dead. By focusing on standards for all
students, and participation and progress in the general curriculum, IDEA ‘97
illuminates a more objective and quantifiable approach to the subjective Rowley
benefit analysis developed through subsequent case law.”²⁸
Private School Placement
Background
Issues concerning what services are required for children with disabilities placed
in private schools, and who is to pay for these services, have been a continuing
source of controversy under IDEA.²⁹ Under current law, a child with a disability may

²⁶ Board of Education of the Hendrick Hudson Central School District v. Rowley, 458 U.S.

176, 201, 203 (1982).

²⁷ 20 U.S.C. §§6301-6777. For a discussion of the requirements of the NCLBA, see CRS
Report RL31284, K-12 Education: Highlights of the No Child Left Behind Act of 2001 (P.L.
107-110), by Wayne Riddle. For a discussion of the relationship between the NCLBA and
the IDEA, see CRS Report RL32913, The Individuals with Disabilities Education Act
(IDEA): Interactions with Selected Provisions of the No Child Left Behind Act (NCLBA),
by Richard N. Apling and Nancy Lee Jones.
²⁸ Joyce O. Eckrem and Eliza J. McArthur, “Is the Rowley Standard Dead? From Access
to Results,” 5 UC Davis J. Juv. L. & Policy 199 (Summer 2001). See also Tara L. Eyer,
“Greater Expectations: How the 1997 IDEA Amendments Raise the Basic Floor of
Opportunity for Children with Disabilities,” 103 Dick. L. Rev. 613 (1999).
²⁹ For a discussion of these issues under current law, see CRS Report RS22044, The
Individuals with Disabilities Education Act (IDEA): Services in Private Schools Under P.L.
108-446, by Nancy Lee Jones, and CRS Report RL33368, The Individuals with Disabilities
(continued...)

be placed in a private school by the local educational agency (LEA) or state
educational agency (SEA) as a means of fulfilling the FAPE requirement for the
child. In this situation, the full cost is paid for by the LEA or the SEA. A child with
a disability may also be unilaterally placed in a private school by his or her parents.
In this situation, the cost of the private school placement is not paid by the LEA
unless a hearing officer or a court makes certain findings. However, IDEA does
require some services for children in private schools, even if they are unilaterally
placed there by their parents.³⁰ IDEA, as amended, states in part:
(ii) R^E^I^MB^U^R^SE^ME^N^T^FO^RP^RI^VATES^CHOOLP^LACEM^E^NT.— If the parents of a
child with a disability, who previously received special education and related
services under the authority of a public agency, enroll the child in a private
elementary school or secondary school without the consent of or referral by the
public agency, a court or a hearing officer may require the agency to reimburse
the parents for the cost of the enrollment if the court or hearing officer finds that
the agency had not made a free appropriate public education available to the³¹
child in a timely manner prior to that enrollment.
Supreme Court Decisions
The current statutory provisions regarding private schools are the result of
several major amendments, and, with the exception of the recent per curiam decision
in Board of Education of the City School District of the City of New York v. Tom F.,³²
the Supreme Court decisions on private schools are prior to the statutory changes.
In School Committee of the Town of Burlington v. Department of Education of
Massachusetts,³³ the father of a child with specific learning disabilities rejected a
proposed IEP and placed the child, at his own expense, in a state-approved private
school for special education. In an unanimous decision written by Justice Rehnquist,
the Supreme Court held that the statutory provision granting courts the right to grant
such relief as the court deems appropriate includes the power to order school
authorities to reimburse parents for private school expenditures. However, this
reimbursement is permitted only if a court ultimately determines that the private
school placement, rather than a proposed IEP, is proper under the act.
In the subsequent unanimous decision of Florence County School District Four
v. Carter,³⁴ the Supreme Court was again presented with a situation in which parents
had unilaterally placed a child with a disability in a private school, alleging that the
public school’s proposed IEP did not meet IDEA requirements. The district court

²⁹ (...continued)
Education Act (IDEA): Parentally Placed Children in Private Schools, by Richard N.
Apling and Nancy Lee Jones.
³⁰ 20 U.S.C. §1412(a)(10).
³¹ 20 U.S.C. § 1412(a)(10)(C)(ii).
³² 552 U.S. __ (2007); 2007 U.S. L^EXI^S 11481 (October 10, 2007).
³³ 471 U.S. 359 (1985).
³⁴ 510 U.S. 7 (1993).

and the fourth circuit court of appeals found that the proposed IEP violated IDEA.
On appeal to the Supreme Court, the issue was whether the parents were barred from
reimbursement because the private school did not meet the IDEA requirements for
a free appropriate public education. The Court held that reimbursement cannot be
barred because of noncompliance with the requirements because these requirements
in part require that the education be provided at public expense and under public
supervision and direction³⁵ and that “these requirements do not make sense in the
context of a parental placement.”³⁶ Similarly, the failure of the private school to meet
state education standards did not bar reimbursement. “Parents’ failure to select a
program known to be approved by the State in favor of an unapproved option is not
itself a bar to reimbursement.”³⁷
In the Supreme Court’s most recent IDEA decision, Board of Education of the
City School District of the City of New York v. Tom F.,³⁸ the Court, dividing 4-4,
upheld an appeals court ruling that parents of a child with a disability are entitled to
private school reimbursement even though the student had never received special
education services from the school district. The Court’s per curiam decision does
not set a precedent for lower courts; so, the issue about whether reimbursement for
private school tuition may be made when the child has not received public special
education services is not settled. On October 15, 2007, the Supreme Court denied
certiorari in another case presenting the same issue.³⁹
Related Services
Statutory Provisions
As noted above, IDEA’s requirement of a free appropriate public education is
the cornerstone of the act. FAPE is defined in part as requiring “special education
and related services.”⁴⁰ Related services are defined as meaning
transportation, and such developmental, corrective, and other supportive services
(including speech-language pathology and audiology services, interpreting
services, psychological services, physical and occupational therapy, recreation,
including therapeutic recreation, social work services, school nurse services
designed to enable a child with a disability to receive a free appropriate public
education as described in the individualized education program of the child,
counseling services, including rehabilitation counseling, orientation and mobility
services, and medical services, except that such medical services shall be for

³⁵ This requirement is still in current law. 20 U.S.C. §1401(9).
³⁶ 510 U.S. 7, 13 (1993).
³⁷ Id. at 14.
³⁸ 552 U.S. __ (2007); 2007 U.S. L^EXI^S 11481 (October 10, 2007).
³⁹ Board of Education of the Hyde Park Central School District v. Frank G., 459 F.3d 356
(2d Cir. 2006), Petition for cert. denied Oct. 15, 2007 (No.06-580).
⁴⁰ 20 U.S.C. §1401(9).

diagnostic and evaluation purposed only) as may be required to assist a child
with a disability to benefit from special education, and includes the early⁴¹
identification and assessment of disabling conditions in children.
Supreme Court Decisions
Two of the Supreme Court’s decisions under IDEA have involved the concept
of related services, and both have involved the issue of what is a medical service. In
Irving Independent School District v. Tatro,⁴² the Court examined the case of an
eight-year-old girl with spina bifida who required clean intermittent catheterization
(CIC), and held that the school must provide the service. The Court held that
services affecting both the medical and educational needs of a child must be provided
under IDEA if (1) the child has a disability so as to require special education, (2) the
service is necessary to help a child with a disability benefit from special education,
and (3) a nurse or other qualified person who is not a physician can provide the
service. Services that could be provided outside the school day would not need to be
provided. Tatro drew a bright line between services that had to be provided by a
doctor and those that could be provided by a person who was not a physician.
However, after Tatro, some courts of appeals did not apply this bright line but used
other factors, such as the nature and extent of services. This set the stage for another
Supreme Court decision in 1999, Cedar Rapids Community School District v. Garret⁴³
F.
Garret F. involved a child who was paralyzed from the neck down as a result
of a motorcycle accident when he was four years old. The child retained his mental
capacities and was described by the Court as a “friendly, creative, and intelligent
young man.” For a number of years, his family arranged for his physical care during
the school day, but eventually they requested the school to accept financial
responsibility for his health-care services. Because the child was ventilator-
dependent, these services were fairly substantial and included providing suction on
his tracheotomy tube and manually pumping air through an air bag when suction is
being provided. In addition, he needed assistance with catheterization and eating.
The school denied the parents’ request and proposed a test for related services in
which the outcome would depend on a series of factors, such as whether the care was
continuous and the cost of the services. The Court rejected this proposed test and
used the same reasoning it had used in Tatro, finding that the medical services
exclusion from the definition was limited to the services of physician or a hospital.
This holding, the Court stated, was in keeping with the overarching purpose of IDEA
“to open the door of public education to all qualified children.”⁴⁴

⁴¹ 20 U.S.C. §1401(26) (emphasis added).
⁴² 468 U.S. 883 (1984).
⁴³ 526 U.S. 66 (1999).
⁴⁴ Id. at 78.

Procedural Safeguards
Background and Statutory Provisions
In enacting P.L. 94-142, the original version of IDEA, Congress provided grants
to the states to help pay for education for children with disabilities and also
delineated specific requirements the states must follow to receive these federal funds.
This public law contained a requirement that if there is a dispute between the school
and the parents of a child with a disability, the child “stays put” in his or her current
educational placement until the dispute is resolved using the due process procedures
set forth in the statute. The concept of “stay put” was placed in the statute to help
eliminate the then common discriminatory practice of expelling children with
disabilities from school. A revised “stay put” provision remains as law in the current
version of IDEA.⁴⁵
Honig v. Doe
In 1988, the question of whether there was an implied exception to the “stay
put” rule was presented to the Supreme Court in Honig v. Doe.⁴⁶ Honig involved
emotionally disturbed children, one of whom had choked another student with
sufficient force to leave abrasions on the child’s neck and who had kicked out a
window while he was being escorted to the principal’s office. The other child in the
Honig case had been involved in stealing, extorting money, and making lewd
comments. The school had sought expulsion, but the Supreme Court disagreed
finding that “Congress very much meant to strip schools of the unilateral authority
they had traditionally employed to exclude disabled students, particularly emotionally
disturbed students, from school.”⁴⁷ However, the Court observed that this holding
did “not leave educators hamstrung.... Where a student poses an immediate threat to
the safety of others, officials may temporarily suspend him or her for up to 10 school
days.... And in those cases in which the parents of a truly dangerous child adamantly
refuse to permit any change in placement, the 10-day respite gives school officials
an opportunity to invoke the aid of the courts under section 1415(e)(2), which
empowers courts to grant any appropriate relief.”⁴⁸ This statement about the school’s
right to seek judicial relief has come to be know as a Honig injunction.
The Supreme Court’s interpretation of IDEA in Honig did not quell all concerns
about discipline and children with disabilities. In 1994, Congress amended IDEA’s
“stay put” provision to give schools the unilateral authority to remove a child with
a disability to an interim alternative educational setting if the child was determined
to have brought a firearm to school. This provision was expanded in the IDEA

⁴⁵ 20 U.S.C. §1415(j). For a detailed discussion of “stay put,” see CRS Report RL32753,
Individuals with Disabilities Education Act (IDEA): Discipline Provisions in P.L. 108-446,
by Nancy Lee Jones.
⁴⁶ 484 U.S. 305 (1988).
⁴⁷ 484 U.S. 305, 323 (1988) (emphasis in the original).
⁴⁸ Id. at 325-326.

Amendments of 1997 to include weapons (not just firearms) and drugs, and is further
expanded in the 2004 reauthorization to include situations where a student has
inflicted serious bodily injury upon another person while at school.
Attorneys’ Fees
Although the original version of IDEA, P.L. 94-142, contained no specific
provision for attorneys’ fees, prevailing parties used section 505 of the Rehabilitation⁴⁹⁵⁰
Act of 1973, or section 1988 of the Civil Rights Attorneys’ Fees Award Act, to
seek fees. However, the Supreme Court in Smith v. Robinson⁵¹ held that the only
remedies for prevailing parties under IDEA were those contained in that statute. The
statute was described as “a comprehensive scheme set up by Congress to aid the
States in complying with their constitutional obligations to provide public education
for handicapped children.”⁵² The Court further noted that allowing the use of other
statutes to provide for attorneys’ fees would “be inconsistent with Congress’
carefully tailored scheme.”⁵³
The Court’s decision in Smith v. Robinson was controversial. In response,
Congress in 1986 enacted the Handicapped Children’s Protection Act, which
provided for attorneys’ fees under IDEA.⁵⁴ These provisions were amended in 1997.
The P.L. 105-17 amendments allowed the reduction of attorneys’ fees if the attorney
representing the parents did not provide the LEA with timely and specific
information about the child and the basis of the dispute, and specifically excluded
the payment of attorneys’ fees for most individualized education plan (IEP) meetings.
The 2004 IDEA reauthorization, P.L. 108-446, kept many of the previous provisions
on attorneys’ fees but also made several additions. These include allowing attorneys’
fees for the state educational agency (SEA) or the local educational agency (LEA)
against the parent or the parent’s attorney in certain situations.⁵⁵
Expert Witness Fees
Although there is no specific provision allowing a court to award prevailing
parents expert witness fees, the language regarding attorneys’ fees has been
interpreted by some lower courts to allow such an award. IDEA’s statutory language

⁴⁹ 29 U.S.C. §794a.
⁵⁰ 42 U.S.C. §1988.
⁵¹ 468 U.S. 992 (1984).
⁵² Id. at 1009.
⁵³ Id. at 1012.
⁵⁴ P.L. 99-372.
⁵⁵ 20 U.S.C. §1415(i)(3). For a discussion of P.L. 108-446 and attorneys’ fees, see CRS
Report RS22055, The Individuals with Disabilities Education Act (IDEA): Attorneys’ Fees
Provisions in P.L. 108-446, by Nancy Lee Jones.

states in relevant part: “in any action or proceeding brought under this section, the
court, in its discretion, may award reasonable attorneys’ fees as part of the costs —
(I) to a prevailing party who is the parent of a child with a disability....”⁵⁶
The parents in Arlington Central School District v. Murphy⁵⁷ argued that the
language on costs encompassed the payment of expert witness fees. To support this
argument, they pointed to the legislative history of the Handicapped Children’s
Protection Act,⁵⁸ which stated that “[t]he conferees intend that the term ‘attorneys’
fees as part of the costs’ include reasonable expenses and fees of expert witnesses.”⁵⁹
The Supreme Court, in a decision written by Justice Alito, held that IDEA does
not authorize prevailing parents to recover fees they have paid to experts. The
majority opinion first observed that the holding was “guided by the fact that Congress
enacted the IDEA pursuant to the Spending Clause.”⁶⁰ This was seen as significant
because if Congress attaches conditions to a state’s acceptance of funds, the
conditions must be unambiguous and provide clear notice. The majority concluded
that IDEA’s statutory language did not provide this clear notice and that the
legislative history was unconvincing and “simply not enough” under these
ci rcum st ances.⁶¹
Legislation, H.R. 4188, has been introduced in the 110^th Congress to amend
IDEA to include the fees of expert witnesses. H.R. 4188 specifically provides that
“the term ‘attorneys’ fees’ shall include the fees of expert witness, including
reasonable costs of any test or evaluation necessary for the preparation of the parent
or guardian’s case in the action or proceeding.”
Burden of Proof
Statutory Provisions
IDEA contains detailed due process requirements to ensure the provision of
FAPE. These include the opportunity for an impartial due process hearing.⁶²
However, the statute contains no specific provision relating to which party has the

⁵⁶ 20 U.S.C. §1415(i)(3)(B).
⁵⁷ 548 U.S. __,126 S.Ct. 2455; 165 L.Ed.2d 526 (2006).
⁵⁸ P.L. 99-372.
⁵⁹ H.R. Conf. Rep. No. 99-687, at 5.
⁶⁰ Id. Slip op. at 3.
⁶¹ 548 U.S. __,126 S.Ct. 2455; 165 L.Ed.2d 526 (2006). Slip op. at 12. For a more detailed
discussion see CRS Report RS22465, The Individuals with Disabilities Education Act
(IDEA): The Supreme Court Denies Expert Fees in Arlington Central School District v.
Murphy, by Nancy Lee Jones.
⁶² 20 U.S.C. §1415(f).

burden of proof in a due process hearing, and the courts of appeals were split in their
interpretations of who bore the burden of proof.
Schaffer v. Weast
The Supreme Court in Schaffer v. Weast,⁶³ held that the burden of proof
regarding an allegedly inadequate IEP in an IDEA due process hearing rests with the
party seeking the relief. The Supreme Court, in an opinion by Justice O’Connor, first
observed that “absent some reason to believe that Congress intended otherwise,...we
will conclude that the burden of persuasion lies where it usually falls, upon the party⁶⁴
seeking relief.” Justice O’Connor then examined, and rejected, various reasons
advanced to support the argument that the burden of proof should be on the school
system. The Supreme Court noted that the most plausible argument advanced by the
parents was that in the interest of fairness, the burden of proof should not be placed⁶⁵
on a party when the facts are “peculiarly within the knowledge of his adversary.”
School districts were seen as having a “natural advantage” regarding the information,
but Justice O’Connor did not find this to be determinative because “Congress
addressed this when it obliged schools to safeguard the procedural rights of parents⁶⁶
and to share information with them.” The Court noted that IDEA provides parents
with the right to review records, to have an independent educational evaluation, to
have details about options considered by the school district as well as disclosure of
evaluations and recommendations, and to receive attorneys’ fees in the discretion of
a court if they prevail. Justice O’Connor concluded that “[t]hese protections ensure
that the school bears no unique informational advantage.”⁶⁷
Parental Rights to Bring Suit Pro Se
In Winkelman v. Parma City School District,⁶⁸ the Supreme Court examined the
issue of whether IDEA permits parents who are not attorneys to bring suit in court,
either on their own behalf or as representatives of their child. The Court held that
such pro se suits were permitted for parents suing with regard to their own rights.
In an opinion written by Justice Kennedy, the Court concluded that IDEA grants
parents independent, enforceable rights that encompass a child’s entitlement to a free
appropriate public education and that these rights are not limited to procedural or
reimbursement issues.

⁶³ 546 U.S. 49 (2005). Chief Justice Roberts took no part in the decision. For a more
detailed discussion of Weast, see CRS Report RS22353, The Individuals with Disabilities
Education Act: Schaffer v. Weast Determines Party Seeking Relief Bears the Burden of
Proof, by Nancy Lee Jones.
⁶⁴ Slip op. at 8.
⁶⁵ Slip op. at 10, citing United States v. New York, N.H. & H.R. Co., 355 U.S. 253, 256,
n.5 (1957).
⁶⁶ Slip op. at 10.
⁶⁷ Slip op. at 11.
⁶⁸ 550 U.S. __, 127 S.Ct. 1994, 167 L.Ed.2d 904 (2007).

In arriving at this holding, Justice Kennedy observed that “a proper
interpretation of the Act requires a consideration of the entire statutory scheme.” The
Court examined IDEA’s statutory language, noting that one of the purposes of IDEA
is “to ensure that the rights of children with disabilities and parents of such children
are protected.”⁶⁹ This language was found to refer to rights for both parents and
children with disabilities. Similarly, the Court found that the establishment of
procedural rights was required “to ensure that the rights of children with disabilities
and parents of such children are protected.”⁷⁰ These provisions were found to
support the finding that the parents of a child with a disability have “a particular and
personal interest” in the goals of IDEA and that “IDEA includes provisions
conveying rights to parents as well as to children.”
The rights that IDEA provides for parents were found to encompass not only
procedural but also substantive rights. Justice Kennedy observed, “IDEA does not
differentiate, through isolated references to various procedures and remedies,
between the rights accorded to children and the rights accorded to parents.” It was
argued that granting these rights would increase the costs to the states because
parents may bring more lawsuits if they do not have the financial constraint of paying
for an attorney. However, the Court found that these concerns were not sufficient to
support an argument under the Spending Clause that IDEA failed to provide clear
notice before a new condition or obligation was placed on a recipient of funds. In
addition, Justice Kennedy observed that IDEA specifically allows courts to award
attorneys’ fees to a prevailing educational agency when a parent has brought an
action for an “improper purpose, such as to harass, to cause unnecessary delay, or to
needlessly increase the cost of litigation.”⁷¹
Justice Scalia, joined by Justice Thomas, concurred in the judgment in part and
dissented in part. These Justices would have held that parents have the right to
proceed pro se under IDEA when they seek reimbursement for private school tuition
or for violations of the parents’ procedural rights. However, Justices Scalia and
Thomas would not have allowed such suits when the suits sought a judicial
determination that the child’s free appropriate public education was substantively
inadequate.

⁶⁹ 20 U.S.C. §1400(d)(1)(B).
⁷⁰ 20 U.S.C. §1415(a).
⁷¹ 20 U.S.C. §1415(i)(3)(B)(i)(III).