Neosho R-V School District v. ClarkNeosho R-V School District v. Clark
Ernest Trakas, argued, Jefferson City, MO (Michael H. Finkelstein and Joshua E. Douglass, on the brief), for appellee.
Before HANSEN, Chief Judge, MORRIS SHEPPARD ARNOLD, Circuit Judge, and PRATT,1 District Judge.
HANSEN, Circuit Judge.
This dispute involves a disabled student‘s right to a free appropriate public education within the meaning of the Individuals with Disabilities Education Act (IDEA),
Robert Clark was a twelve-year-old special education student in the Neosho R-V School District during the 1997-98 school year. Because he suffers from Autism-Asperger‘s Syndrome, Robert is prone to inappropriate behavior, which, when unmanaged, largely prevents him from interacting with his peers in an acceptable manner. He also is diagnosed as having a learning disability. During the 1997-98 school year, Robert‘s age was equal to children in the sixth grade, but he was placed in the fifth grade resource room for special education. His instructional level was that of fourth grade, but he needed assistance with this work, and the special education teacher often moved him back to third-grade level work to decrease his misbehaviors and to increase his self-confidence.
Before the school year began, Robert‘s parents had initiated a due process proceeding against the School District, which resulted in a settlement agreement providing that the School District would place Robert in a self-contained classroom with mainstreaming in music. The settlement agreement also provided for a full-time paraprofessional to help Robert in school and required the School District to provide specific interventions and strategies to manage Robert‘s inappropriate behavior. In August 1997, and again in October 1997, the School District developed Individualized Education Plans (IEPs) for Robert. Consistent with the settlement agreement, the IEPs placed Robert in a self-contained classroom except for music class, established an IEP team to meet every two weeks and consider the possibility of additional mainstreaming, and called for a full-time paraprofessional to accompany Robert in all classes. The IEPs also stated that a behavior plan was attached to them, but the attachments were merely short-term goals and objectives that did not provide specific interventions and strategies to manage Robert‘s behavior problems.
Robert‘s special education teacher, Mrs. Sweet, and his IEP-required paraprofessional, Larry Shadday, attempted to manage Robert‘s behavior problems to the best of their ability. They employed several methods that might be found in a behavior management plan but which had not been actually analyzed or approved by Robert‘s IEP team. They also used a checklist that had been included in a plan developed during the prior school year by an outside agency, the Judevine Center for Autism. The IEP team never adopted this document and had agreed that a new behavior management plan was necessary to meet Robert‘s needs during the 1997-98 school year. The IEP team agreed that the new plan should not be based on Robert‘s past behavior. Robert‘s special education teacher did not begin to formally chart data in a format that could be used to develop a new behavior management plan until March 1998.
As the 1997-98 school year progressed, Robert‘s behavior problems increased dramatically. His challenging behaviors numbered 3 in the month of August, 10 in the month of September, and 394 by March. The School District did not attempt to formulate a new behavior management plan for Robert until April 1998, close to the end of the school year. Robert‘s increasingly inappropriate behavior prevented him from being included in mainstreamed classes beyond music and substantially interfered with his ability to learn.
The Clarks sought an administrative hearing as provided by the IDEA. See
The School District contended that Robert‘s academic record demonstrated he had received some benefit from his education, even if the behavior plan did not meet the expert‘s requirements. The administrative panel did not credit that evidence, finding it contradicted by other evidence and unsupported by the record as a whole. The panel found that the conflicting evidence left it with no clear evidence from which it could determine if or to what extent Robert had progressed or obtained any educational benefit.
Thus, the administrative panel concluded that the School District failed to develop and implement the required behavior management plan calculated to meet Robert‘s needs and to enable him to gain an educational benefit. The panel ordered the School District to seek the expertise of a consultant or qualified expert to devise a behavior management plan including (1) an ongoing functional behavior analysis to identify causative factors and objectionable behaviors, and (2) a list of replacement behaviors and strategies to eliminate Robert‘s objectionable behavior and enable him to receive educational benefits. The panel also ordered the School District to provide its staff with development training for working with students who have Asperger‘s Syndrome and high functioning autism.
The School District brought suit in federal district court, seeking judicial review of the administrative panel‘s decision. See
II.
A. Free Appropriate Public Education
One purpose of the 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.”
In this case, there is no contention that the school district failed to follow the procedures set forth in the IDEA. Rather, the dispute involves the second inquiry—whether the August and October 1997 IEPs were reasonably calculated to enable Robert to receive an educational benefit. The district court determined that because the IEPs required a behavior management plan and because the attachments to the IEPs did not qualify as such and no approved plan was timely developed, the IEPs were not reasonably calculated to provide an educational benefit.3
The School District asserts that, contrary to the district court‘s ultimate conclusion, Robert‘s IEPs were reasonably calculated to provide Robert an educational benefit. Specifically, the School District asserts (1) that the district court erred in giving deference to administrative panel findings of no educational benefit because those findings were contradicted by the evidence, (2) that the IEPs appropriately addressed Robert‘s behavior problems, and (3) that the district court erred in concluding that the School District denied Robert a free appropriate public education.
We review de novo, as a mixed question of law and fact, the ultimate issue of whether an IEP is reasonably calculated to provide some educational benefit. Gill, 217 F.3d at 1035 (citing Fort Zumwalt, 119 F.3d at 611, and Yankton Sch. Dist. v. Schramm, 93 F.3d 1369, 1374 (8th Cir. 1996)). “[T]he district court‘s findings of fact are binding unless clearly erroneous.” Id. The district court must receive the record of the state administrative proceedings and any additional evidence at the request of either party.
In this case, the district court was careful not to substitute its own notions of educational policy for those of the trained educators, and we conclude that the district court gave due weight to the administrative hearing panel‘s findings that Robert did not receive an educational benefit. The parties presented no additional evidence to the district court, and the district court‘s written order evidences an independent review of the administrative hearing record. The district court concluded that the record supported the administrative panel‘s decision to discount the evidence of Robert‘s alleged academic progress, and it gave deference to the panel‘s determination that the materials attached to the IEPs did not constitute a proper behavior management plan. The district court stated that because those decisions were supported by evidence in the record, to do otherwise would be “to substitute its views regarding proper educational methods and programs for the Panel‘s views on those topics.” (Appellant‘s Add. at 6.) While the record is certainly not one-sided on the issue of whether Robert received an educational benefit, we agree that on the whole, the record supports the credibility assessments and findings made by the administrative panel and deferred to by the district court.
The School District‘s arguments that the IEPs appropriately addressed Robert‘s behavior problems and that the district court erred in concluding that the School District denied Robert a free appropriate public education are intertwined. Our independent review convinces us that because the IEPs did not appropriately address his behavior problem, Robert was denied a free appropriate public education.
The Clarks’ expert witness testified that the papers attached to the IEPs were not sufficient to amount to a cohesive behavior management plan. Witnesses confirmed that such a plan was never adopted by the IEP team, in spite of the fact that Robert‘s behavior problem was the major concern at every IEP meeting. Although the special education teacher and the paraprofessional commendably attempted to cope with Robert‘s behavioral problems using methods that could have been employed in a behavior management plan, they were not professionally trained to successfully reduce the inappropriate behavior in a manner fitting to Robert‘s disabilities. The fact that no cohesive plan was in place to meet Robert‘s behavioral needs supports the ultimate conclusion that he was not able to obtain a benefit from his education.
Our review indicates that the administrative panel‘s decision reflects a thorough consideration of all the evidence regarding Robert‘s academic progress and his behavioral problems. The panel discounted the evidence of some slight academic progress, finding that this evidence of progress was contradicted by other evidence in the record. The record demonstrates that every time Robert‘s special education teacher advanced his work to a fifth-grade level, the stress engendered resulted in behavior problems that forced the teacher to readjust his work back to fourth-grade levels (which he needed assistance to complete) and even to third-grade levels to afford Robert a measure of success.
The School District points to report cards which assertedly indicate a measure of success sufficient to be considered an educational benefit, regardless of whether the IEP stated a behavior management plan. The administrative panel reviewed all of this evidence in a detailed fashion and discounted it because the records did not indicate at which grade level Robert was working at any given time or over any period of time. The records also indicated that work at higher levels was only possible with a great deal of help from the paraprofessional.
Kerri Muns, the director of the Southwest Missouri Autism Project, was involved with the Judevine Center for Autism and had attended Robert‘s IEP meetings at the request of his parents. She testified that Robert‘s behavior problems always precluded him from attending a regular classroom, which was the main goal of his IEPs. She opined that Robert had progressed “in a very broad sense” (id. at 180), noting that he now could start a conversation and look a person in the eye, which he could not do at the beginning of the year. On the other hand, his short attention span had not increased.
The administrative panel concluded that the generalized opinions of progress expressed by some witnesses at the hearing were “meaningless” in light of all the other evidence in this case. (Appellant‘s Add. at 28.) Our review of the record convinces us that the panel did not err in discounting the evidence of de minimis academic and social progress where the panel pointed to specific evidence in the record contradicting such a benefit and noted that any slight benefit obtained was lost due to behavior problems that went unchecked and interfered with his ability to obtain a benefit from his education. The district court considered not only the administrative panel‘s conclusions, but also the hearing record to reach its own conclusion that “the need for—and the ability to create—a proper behavior modification plan existed long before [the School District] made the effort to [create a plan].” (Id. at 5.) Upon de novo review, we agree that the School District failed to provide Robert an educational benefit by not developing and implementing an appropriate behavior management plan as required by his IEPs.
B. Attorney Fees
The IDEA provides that “the court, in its discretion, may award reasonable attorneys’ fees as part of the costs to the parents of a child with a disability who is the prevailing party.”
The School District argues that the district court erred in determining that the Clarks were the prevailing parties and abused its discretion by awarding attorneys’ fees that were not reasonable in light of the Clarks’ limited success. The School District further asserts that even if this court affirms the conclusion that it did not provide Robert with a free appropriate public education, the fees and costs must be reduced. We respectfully disagree.
Even though the Clarks began the process seeking relief such as a private placement or an inclusive placement within the district, the record demonstrates that the only issue in dispute at the administrative hearing was whether the attachments to the IEPs satisfied the requirement of providing Robert with a proper behavior management plan. The Clarks prevailed on this issue. There is no assertion that the School District offered a behavior management plan by way of settlement, aside from the vague propositions already contained in the IEPs. When the administrative panel ordered the School District to consult an expert and devise a proper behavior management plan, it altered the legal relationship between the parties by granting Robert a legal right previously denied him by the School District‘s failure to devise and implement a behavior management plan. This amounts to actual relief on the merits of Robert‘s IDEA claim, and thus the district court properly determined that the Clarks were the prevailing parties and correctly granted an award of attorneys’ fees.
The School District argues that the Clarks unreasonably protracted the proceedings, and thus the fees should be further reduced. If parents “unreasonably protracted the final resolution of the controversy,” the court shall reduce the fee award accordingly.
C. Expert Witness Fees
The Clarks cross appeal, asserting that the district court abused its discretion in denying their request for expert witness fees as costs. Whether expert witness fees may be awarded as costs under the IDEA is an issue of first impression in this circuit. See Warner v. Indep. Sch. Dist. No. 625, 134 F.3d 1333, 1336 n. 1 (8th Cir.) (noting the issue but concluding that we did not need to address the issue at that time given our disposition of that case), cert. denied, 525 U.S. 823 (1998). In fact, our research indicates that no circuit court has yet ruled on the issue. Among the district courts there is a split of authority on whether reasonable expert witness fees are payable under the IDEA. See BD v. DeBuono, 177 F.Supp.2d 201, 207 (S.D.N.Y.2001) (citing cases on both sides of the issue).
The statute at issue is labeled, “Award of Attorneys’ Fees,” and it provides that “the court, in its discretion, may award reasonable attorneys’ fees as part of the costs to the parents of a child with a disability who is the prevailing party.”
The dissent asserts that these general provisions governing costs in federal court do not apply here because
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 parent or guardian‘s case in the action or proceeding, as well as traditional costs incurred in the course of litigating a case.
H.R. Conf. Rep. No. 99-687, at 5 (1986), reprinted in 1986 U.S.C.C.A.N. 1807, 1808. In another context, Justice Scalia commented for the Court in a footnote on this particular bit of legislative history. He characterized it as “an apparent effort to depart from ordinary meaning and to define a term of art,” and he also stated that “th[is] specification would have been quite unnecessary if the ordinary meaning of the term included those elements.” West Virginia Univ. Hosps. v. Casey, 499 U.S. 83, 92 n. 3 (1991), superseded by statute on other grounds,
Proper respect for the legislative powers vested in Congress “implies that statutory construction must begin with the language employed by Congress and the assumption that the ordinary meaning of that language accurately expresses the legislative purpose.” United States v. Albertini, 472 U.S. 675, 680 (1985) (internal quotations and alterations omitted). There is no doubt that Congress knows how to specify a shifting of expert witness fees. West Virginia Univ. Hosps., Inc. v. Casey, 499 U.S. 83, 88-89 (1991) (noting that “[a]t least 34 statutes in 10 different titles of the United States Code explicitly shift attorney‘s fees and expert witness fees“), superseded by statute,
Absent some ambiguity in the statute, we have no occasion to look to legislative history. The dissent would find ambiguity in the term “costs,” but that general term is governed by the general cost statutes, and there is no contrary indication in the IDEA. “Unless exceptional circumstances dictate otherwise, when we find the terms of a statute unambiguous, judicial inquiry is complete.” Burlington N. R.R. v. Okla. Tax Comm‘n, 481 U.S. 454, 461 (1987) (internal quotations and alterations omitted). We refuse to accept legislative history alone as an acceptable exceptional circumstance. We are bound to follow circuit precedent, which states that “[t]he mere fact that statutory provisions conflict with language in the legislative history is not an exceptional circumstance permitting a court to apply the legislative history rather than the statute.” United States v. Erickson P‘ship (In re Erickson P‘ship), 856 F.2d 1068, 1070 (8th Cir.1988). “We refuse to read into the statute what Congress has declined to include.” Welsh, 993 F.2d at 1270. This is particularly true where the Court has specifically indicated that the term “costs” should be construed narrowly as not including expert witness fees. See Casey, 499 U.S. at 87 n. 3 (relying on Crawford Fitting to reject a claim that the generic term “costs” might include expert witness fees: “We are aware of no authority to support the counter-intuitive assertion that the term `costs’ has a different and broader meaning in fee-shifting statutes than it has in the costs statutes that apply to ordinary litigation.” (internal quotation and alteration omitted)). In truth, it is the conferees’ language which creates the asserted ambiguity, not the statute‘s use of the word “costs.”
We as judges of the U.S. Court of Appeals have only the power to interpret the law; it is the duty of the legislative branch to make the law. We must refuse to infringe on the legislative prerogative of enacting statutes to implement public policy. The problems of public policy are for the legislature and our job is one of interpreting statutes, not redrafting them.
Welsh, 993 F.2d at 1270-71 (internal quotations and alterations omitted).
We thus conclude that the district court did not err in refusing to grant expert witness fees under the IDEA.
III.
Accordingly, we affirm the judgment of the district court in all respects.
PRATT, District Judge, concurring in part and dissenting in part.
As the majority notes, one stated purpose of the 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.”
A. Witness Fees, § 1821, and the IDEA
In Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 445 (1987), the Supreme Court held that “absent explicit statutory authority or contractual authorization for the taxation of the expenses of a litigant‘s witness as costs, federal courts are bound by the limitations set out in
Quite simply, given the plain language of
(1) Except as otherwise provided by law, a witness in attendance at any court of the United States, or before a United States Magistrate Judge, or before any person authorized to take his deposition pursuant to any rule or order of a court of the United States, shall be paid the fees and allowances provided by this section.
(2) As used in this section, the term “court of the United States” includes, in addition to the courts listed in
section 451 of this title , any court created by Act of Congress in a territory which is invested with any jurisdiction of a district court of the United States.
Next, the nature of the IDEA and its associated due process hearings differs greatly from the federal antitrust and civil rights litigation at issue in Crawford Fitting Co. and West Virginia Univ. Hosps. v. Casey, 499 U.S. 83 (1991). Moreover, as a regulatory scheme, the IDEA is unlike any of the 34 statutes identified by Justice Scalia in Casey, wherein the statutory language provides for both attorneys’ fees and expert witnesses as part of the costs. Id. at 89. In enacting the IDEA, Congress, by virtue of its spending power4, conditioned the allocation of federal funds on a state‘s passage of, and adherence to, the IDEA‘s procedural and substantive regulations. See
The IDEA state due process hearings occur neither before a court of the United States, nor before a court created by an act of Congress. Rather, Congress reserved judicial review and allocation of costs to the district courts of the United States.
Of course, citing differences between the IDEA and other statutes that do contain explicit expert witness fee shifting provisions does little to compel such an award in the present case. As Justice Scalia suggested in Casey “in our view this undercuts rather than supports [the] position.” Casey, 499 U.S. at 91, n. 5. In referring to the same House conference report discounted by the present majority, Justice Scalia noted “the statement is an apparent effort to depart from ordinary meaning and to define a term of art.” Id. (emphasis in original). As the state hearing panel proceedings from which the district court must award fees depart from the ordinary meaning of federal litigation, Congress had occasion to define a term of art. The IDEA‘s clear legislative history provides the intended definition:
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 parent or guardian‘s case in the action or proceeding, as well as traditional costs incurred in the course of litigating a case.
H.R. Conf. Rep. No. 99-687, at 5 (1986), reprinted in 1986 U.S.C.C.A.N. 1807, 1808. Given the nature of the state due process hearings mandated by the IDEA, the district courts are wise to turn to the statute‘s legislative history for guidance when awarding reasonable attorneys’ fees as part of the costs.
Beyond Congress‘s clear legislative intent, the nature and purpose of the IDEA compels an award of expert witness fees as part of the costs. In amending the IDEA to its current form, Congress found that:
(2) Before the date of the enactment of the Education for All Handicapped Children Act of 1975 (Public Law 94-142) [enacted Nov. 29, 1975] —
(A) the special educational needs of children with disabilities were not being fully met;
(3) Since the enactment and implementation of the Education for All Handicapped Children Act of 1975 [enacted Nov. 29, 1975], this Act [
20 USCS §§ 1400 et seq. ] has been successful in ensuring children with disabilities and the families of such children access to a free appropriate public education and in improving educational results for children with disabilities.(4) However, the implementation of this Act [
20 USCS §§ 1400 et seq. ] has been impeded by low expectations, and an insufficient focus on applying replicable research on proven methods of teaching and learning for children with disabilities.
In response to noted challenges in implementing the previous Education for All Handicapped Children Act of 1975, Congress passed the IDEA to ensure:
(1) (A) that all children with disabilities have available to them a free appropriate public education ... designed to meet their unique needs...;
(B) that the rights of children with disabilities and parents of such children are protected; and
(3) that educators and parents have the necessary tools to improve educational results for children with disabilities by supporting systemic-change activities; coordinated research and personnel preparation; coordinated technical assistance, dissemination, and support; and technology development and media services;
The majority‘s conclusion that the prevailing parents of a disabled child are not entitled to recover fees for expert witnesses under the IDEA subverts the very purposes for which the statute was enacted. Parents prevailing in an IDEA action receive no compensatory or punitive damages. Thompson v. Board of the Special Sch. Dist. No. 1, 144 F.3d 574, 580 (8th Cir.1998) (quoting Heidemann v. Rother, 84 F.3d 1021, 1033 (8th Cir.1996)). Rather, the purpose of an IDEA due process action is to ensure that the rights of disabled children and their parents are protected, and that the disabled child receives the free appropriate public education to which he or she is entitled. To enforce these rights, however, the disabled child and his or her parents must square off against the child‘s own school and its resources.
School districts, thankfully, employ many education and child experts. Schools turn to these in house experts in developing special education programs for disabled students. In working with parents to ensure that their child is receiving an appropriate education, the school district and its experts are certainly not immune to disagreement. In such a case, the IDEA guarantees the parents the right to bring the matter before a state administrative hearing panel. The IDEA mandates that all parties be accorded “the right to be accompanied and advised by counsel and by individuals with special knowledge or training with respect to the problems of children with disabilities.”
The present case demonstrates the imperative need for disabled children and their parents to be able to enlist the support of expert witnesses when seeking to enforce the child‘s rights under the IDEA. Here, the School District left the task of ensuring that Robert Clark received an appropriate education with its Director of Special Services, Michael Bilderback. Bilderback served as the School District‘s representative in the Clarks’ first settlement agreement. He presided over all of Robert‘s IEP meetings, and oversaw the implementation—or lack thereof—of the IEPs. When disputes arose between the School District and the Clarks, Bilderback again served as the District‘s representative. As the District representative at the state due process hearing, Bilderback testified as the District‘s expert witness, and vigorously defended the District‘s efforts to provide Robert with a free appropriate public education. While one might argue the desirability of such an acute involvement, the reality of the situation is deeply troubling.
During the school year leading to the state due process hearing, the Clark‘s relationship with Mr. Bilderback devolved into a power struggle focused not on the needs of Robert Clark, but simply on winning. The district court‘s opinion reflects this attitude, noting “the Court‘s decision in this regard is guided, to a certain extent, by its puzzlement over the litigious nature of this proceeding.” (Appellant‘s Add. at 10). For the parties involved, the power struggle between the Clarks and the School District, via Mr. Bilderback, became a severe obstacle to any progress on Robert‘s behalf. In February, 1998, both Kerri Muns, Program Director for the Judevine Autism Project, and Cecilia Callahan, Director of Advocacy for the Missouri Protection and Advocacy Services, wrote to Mr. Bilderback and asked him to remove himself from Robert Clark‘s IEP team. (Appellant‘s App. at 1151, 1163). In her letter, Ms. Muns stated: “I feel there is a power struggle going on between yourself and the Clark family. We have met continuously for a year now and still have gotten nowhere when it comes to diagnosis and inclusion.” (Id. at 1151). At the state due process proceedings, Victoria Atkinson, an area supervisor with the Missouri Department of Education, Division of Special Education, testified that her dealings with Mr. Bilderback, regarding Robert Clark or any child, were marked by indifference, false assurances, and frustration. (Id. at 267-269). Ms. Atkinson further testified that, unlike with any other director of special services, she immediately notified her supervisor after any dealings with Mr. Bilderback, because a number of complaints had been issued against the Neosho School District. In concluding her testimony, the Missouri Department of Education area supervisor simply stated, “Mr. Bilderback was a jerk.” (Id. at 273).
Regardless of the many requests for Mr. Bilderback to remove himself from the process, he remained on as the school district‘s representative. In fact, the problems between the Clarks and Mr. Bilderback were so severe that the Clarks expressed concern about whether Robert could return to the District without incurring great animosity.5 When the Clarks had their opportunity to argue before the state due process panel, they once again found themselves in a battle with Michael Bilderback as the School District‘s representative and quasi-expert witness. In his testimony, Bilderback argued that the school district had met and exceeded the requirements of the IDEA; that Robert Clark had received an educational benefit; and that Robert Clark had received a free appropriate public education. Absent the presence of Dr. Morrow, the Clarks’ expert witness, Mr. Bilderback would have been the lone expert testifying on the adequacy of the School District‘s efforts.
In defending the rights of their son, the Clarks did not have resources of a school district, staffed with a number of education and child experts. Nor were they represented by a large private law firm. No, the Clarks were simply parents who believed that their son‘s school district had denied him the free appropriate public education to which he was entitled. In their fight to protect their son‘s rights, they relied on the Missouri Protection and Advocacy Services, “a federally mandated system ... which provides protection of the rights of persons with disabilities through [free] legally based advocacy.” Missouri Protection and Advocacy Services Home Page, (visited Dec. 16, 2002) <http://members.sockets.net/mopasjc/MOP & A.htm>. Thus, to ensure that their son received a free appropriate public education, the Clarks have relied on one publically funded organization to challenge the resources of the school district, another publically funded entity. Under the majority‘s holding, the Clarks, and any other parent in like circumstances, will still end up incurring significant debt to ensure that their child receives a free education. This assumes, however, that the parents have the ability to hire an expert in the first place. If not, the rights of the disabled child are left to the school district to decide. This could not have been Congress‘s intent when it amended the IDEA to its present form.
D. Conclusion
The IDEA does not provide all parents with the opportunity to recover attorneys’ fees as part of the costs. It is only where the parents prevail after showing that their child‘s school failed—or is failing—to provide their disabled child with an educational benefit to which he or she is legally entitled that the parents can hope to recover the costs involved in enforcing their disabled child‘s rights. The need for expert advocacy to protect the rights of the child is undeniable and undisputed. The fundamental purposes of the IDEA are attainable only when disabled children can rely on the support of expert witness testimony in due process proceedings. The law does not constrain the award of expert witness fees with the same per diem limitations as in ordinary litigation. Rather, the ambiguous character of the IDEA‘s fee shifting provision compels reference to the Act‘s legislative history, wherein one finds a clear statement of congressional intent to include expert witness fees as part of the costs.
The IDEA does not limit its benefits to only those who can afford to recoup them. Quite the contrary, the IDEA seeks to ensure that all disabled children, whether rich or poor, receive a free appropriate public education designed to meet their unique needs. In deciding this question of whether parents who prevail in an action to enforce the rights of their child should be entitled to recover expert witness fees as part of their costs, we are called upon to uphold the rights of the disabled and the poor. Because I believe the majority‘s decision today fails to adequately protect the right of all disabled children to a free appropriate public education,
I respectfully dissent.