The National School Board's Association ("NSBA") has filed an amicus [friend of the court] brief [Download NSBA amicus brief.pdf ] suppporting the school district's contention that schools should not be required to pay expert's fees to parents who prevail in due process. This post is a followup to an earlier one discussing the underlying case.
The NSBA raised several arguments against allowing parents who prevail in due process to recover attorney's fees. First, it argued that to award expert's fees would drain the budgets of school districts. This argument gets a lot of coverage in its brief before the U.S. Supreme Court. School districts would only have to pay parents' expert's fees when the child's rights have been violated. Not to be facetious, but the schools have it within their power to virtually eliminate any drain on their coffers--do not violate children's IDEA rights. Now that was simple !
The next contention is what I call the "cottage industry" argument. The NSBA press release summarized this argument as follows:
"The amicus brief [of NSBA] points out that a ruling upholding a strict interpretation of the IDEA will limit the ability of self-styled advocates and experts to seek out parents of special education students and encourage litigation with the sole idea of pursuing school district dollars. "
Essentially the NSBA continues the ruse that there are an army of unqualified advocates and experts, who have set themselves up as a cottage industry, with the sole purpose of ripping off school district money. This argument is another line of propaganda that is repeated frequently enough that to schools it sounds like truth, even if the sound is hollow. I have never seen or heard of experts, advocates or attorneys who sign parents up in the educational equivalent of ambulance chasing. Parents do not need convincing to file due process against schools; obnoxious, disrespectful and illegal actions of schools do an admirable job without any help from the outside. I have stated in an earlier post hostile parents are not born they are made by schools. If schools were not so profligate in their violations of children's rights, many fewer advocates and other experts would be needed. In my experience, parents especially in rural areas have very limited choices when it comes to advocates and experts; there are not too many people helping parents advocate there are too few. The causation in this argument is backwards. Schools drive parents (often reluctantly) to advocates, experts and attorneys, not the other way around.
If the parents hire "self-styled" experts they do so at their own risk. A hearing officer or judge may not find their testimony convincing, credible or the expert will be rejected altogether without proper credentials. This argument is truly insulting as it is premised on the arrogant belief that schools are the ultimate bastion of educational expertise. The system insures unqualified experts will not get their hands on the school's money.
Awarding experts fees to prevailing parents would run afoul of the goal of collaboration of IDEA according to the NSBA. It argued:
"Allowing parents to recoup expert witness fees will simply perpetuate a cycle of costly litigation by encouraging parents to hire experts. Public schools in turn will have little choice but to hire their own experts to rebut experts hired by parents,” said Negrón. “This practice does not encourage settlement or collaboration, which are critical components of IDEA. Instead, both sides will become more entrenched in their positions."
This argument is again a topsy turvey version of the special education world that actually exists. Parents only hire advocates and experts when collaboration has already broken down. Moreover, schools do not need to hire experts, they have psychologists and other so called "experts" on staff full time. Parents seek outside help to have "equal fire power," to quote from Shaffer, after the school team has stacked the deck against them.
NSBA finally argued parents are already protected since they have a right to an independent educational evaluation ("IEE") under IDEA, so awarding expert's fees is unnecessary. The reality which this argument overlooks is that the right to an IEE is at best conditional. Parents may certainly request an IEE, but schools have the right to file due process against the parents to challenge the request, and very frequently do so. In my experience, this provision has limited usefulness since districts are all too willing to tie parents up in litigation over evaluations that are preliminary to understanding the true nature of the child's issues. Most parents would not choose to spend money to litigate an IEE, waste valuable time in the pursuit, when the reality is that parents frequently lose these cases. If the parent has the money to fund defensive litigation, they would often be better served spending for their own evaluation. This provision is no substitute for the court awarding expert's fees to prevailing parents.
The stark reality is that parents can not recover fees for pre-litigation settlement since Buckhannon in most jurisdictions. The burden of proof may be placed on the parent post-Shaffer. Rowley set a low bar for FAPE. Schools have full time experts and attorneys on the payroll [draining the public coffers]. But now according to the NSBA, parents who prevail in due process should be denied reimbursement for the spurious reasons stated in their brief. Awarding experts fees to parents will in small part make them financially whole, give parents the means to pursue rightful claims, and deter districts from abusing the natural disparity of power that is part of the institutional landscape. It is time for the Supreme Court to take notice of the fact that prevailing parents are the ones who have been violated not school districts.
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