Arlington Central v. Murphy: Making Parents Partial Not Whole

The U.S. Supreme Court decided the case of Arlington Central v. Murphy [Download Arlington Central_v. Murphy.pdf ]. The decision was 6-3 in favor of the school district's case and essentially ruled that prevailing parents can not recover expert's fees as part of recoverable "costs" under IDEA. A longstanding legal maxim is that the winning plaintiff should be made whole; under Arlington Central the Supreme Court has put prevailing parents in the position where they will be made partial not whole after winning a due process case.  So parents are 0-2 in recent years before the U.S. Supreme Court.  For a legal analysis of the case and its potential legal doctrine ramifications click here . The question remains to what extent has the legal landscape changed as a result of Shaffer and Arlington Central.

As discussed in previous posts, Shaffer dealt with the unique situation where the evidence is equal, so the hearing officer will rule against the party who has the burden of proof; not many cases have been or will be decided on the basis of burden of proof. Arlington Central raises the cost of filing and prevailing in a due process, but does not change the underlying entitlement. It creates a barrier to access to justice especially for the poor who were already largely disenfranchised. The disenfranchisement of the poor can only be effectively addressed if the State and Federal  executive agencies enforce substantive rights for the disabled. Even if Shaffer and Arlington had been decided the other way,  the poor would still remain largely disenfranchised.

The jurisprudence of Arlington Central teaches us what any informed parent entering an IEP meeting already knows or should know-- if something is not written out in explicit terms you are not going to get it. The Supreme Court has sent an unambiguous message that strict rules of statutory construction will be applied even to statutes such as IDEA.

While I am maddened and frustrated with the Court's recent decisions, I am not discouraged. We can take these defeats and walk away or we can take them as a rallying point for political action. Walking away is not an option. We are fighting for nothing less than a meaningful future for our children.

Here are my thoughts in the wake of Arlington and Shaffer:

-it is my belief that short of repealing IDEA, schools will find a way to violate children's rights to such a significant degree that even conservative jurists will have to find in favor of parents;

-I believe in the pendulum swing of history and politics and we may be seeing the
approach of the high water mark for the conservative view point in the foreseeable
future. The underlying facts are immutable; disabled students will be ill served
and under served to such a degree that political and popular opinion at some point
will have to take notice and act;

-we used to look to the judiciary for help. Those days may be over for a time, and
the answers lie in the legislative and executive branches, both Federal and State.
We need to mobilize in ways that have not been seen in recent times. I see a time
when there will be super-convention/congress of all disability organizations to draft
an all encompassing and undeniable national agenda on issues relating to IDEA, ADA,
504, and health care. Truly egregious and wrongheaded decisions like we have seen
in recent years including this one, I believe will ultimately have a galvanizing
effect and strip away any ambiguity that we need to act;

- schools will finally be stripped of some of their most potent arguments
that they are being victimized and their coffers drained in what I call the "cottage
industry" of IDEA. They have burden of proof and now they have a bulwark on expert's fees.
Shaffer and Arlington once and for all, portray the roles of the respective parties--we
are David and they are Goliath;  so schools can stop complaining about being victimized by parents;

-bottom line is that both cases can be reversed through legislation if there is
enough political will and if it is ultimately worth the political capital; time
will tell.

We must never lose sight of the fact that what propels our side of the argument is the rocket fuel of fighting for the future of vulnerable children. The school district has the much less compelling foundation of fiscal and policy issues. We need to use that rocket fuel to propel our agenda in the press, in the legislatures and to compel executive enforcement of our rights.

Comments

[Sandy Alperstein]

Great post, Charlie! I agree that we need to maintain a positive attitude and never give up. Congress has reversed Supreme Court decisions before and they can do it again. We need to stick together and start pushing that pendulum back over to the other side - the side of families and kids rather than schools and bureaucracies!