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Analysis of Arlington v. Murphy
by Peter W. D. Wright, Esq.

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On June 26, 2006, the U. S. Supreme Court issued a 6-3 decision pro-school decision in Arlington Central School District Board of Education v. Murphy, 548__U.S. (2006).

Majority Opinion

Pete makes notes on Arlington v. Murphy
Pete Wright makes notes on recent U. S. Supreme Court decision, Arlington v. Murphy.

The decision of the majority, authored by Justice Alito, held that parents who prevail in special education due process hearings are not entitled to recover fees paid to expert witnesses as part of their “costs.” The Court reasoned that “'costs’ is a term of art that generally does not include expert fees ... The use of this term of art, rather than a term such as ‘expenses,’ strongly suggests that §1415(i)(3)(B) was not meant to be an open-ended provision ... for all expenses incurred by prevailing parents in connection with an IDEA case . . ."

The majority opinion acknowledged that the legislative history of the Individuals with Disabilities Education Act supported the interpretation that “costs” includes reimbursement for expert witness fees.

The Conference Committee Report of the House and Senate issued when this provision was passed stated: “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.

Despite this clear language, the majority wrote, “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.”

Dissenting Opinion

Justice Breyer, supported by Justices Souter and Stevens, filed a vigorous dissent.

In the minority opinion, Justice Breyer wrote, “Members of Congress did make clear their intent by, among other things, approving a Conference Report that specified that ‘the term 'attorneys’ fees as part of the costs’ includes reasonable expenses of expert witnesses and 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. H. R. Conf. Rep. No. 99-687, p. 5 (1986); Appendix A, infra, at 19” The Conference Report was attached to the dissent as Appendix A.

Justice Breyer explained, “There are two strong reasons for interpreting the statutory phrase to include the award of expert fees. First, that is what Congress said it intended by the phrase. Second, that interpretation furthers the IDEA’s statutorily defined purposes.”

The dissent includes an historical discussion about the Conference Report and expressed concerns that the potential impact that this ruling “will leave many parents and guardians ‘without an expert with the firepower to match the opposition,’ ... a far cry from the level playing field that Congress envisioned.”

Analysis by Pete Wright

The history of this case and links to the briefs filed with the U. S. Supreme Court are available on the Arlington v. Murphy page.

After Pete attended oral argument in Arlington v. Murphy on April 19, 2006, he wrote, "After listening to oral argument, it was my sense that the Supreme Court will decide that the word 'costs' does not include reimbursement for expert witness fees."

Read Pete's description of oral argument and his prediction of a 5-4 or 6-3 vote


The parents were represented by Marilyn Arons, a lay advocate, during a special education due process hearing. Thus, during part of the case, Ms. Arons provided a form of legal representation to the parents. During other stages, Ms. Arons acted as a consultant.

After the case was over and the parents had prevailed, the parents petitioned the U. S. District Court for an Order directing the school district to pay $29,350 for the lay advocate's services. The District Court awarded $8,650 for Arons' services, in part because Arons was not an attorney so the parents were not entitled to recover some of her expenses. However, because Ms. Arons provided them with expert advice, the reduced award was authorized under the IDEA statute.

Ms. Arons, the lay advocate, was not an “expert witness” who evaluated, tested, and assessed the child, evaluated the child's educational programs, or testified at the due process hearing as a psychologist, psycho-educational evaluator, speech-language therapist, or other type of “expert witness.” Despite this distinction, Arlington v. Murphy evolved into an “expert witness” reimbursement case, not a case about whether the parents were entitled to reimbursement for the services of a “lay advocate.”

Resolving Parent-School Disputes

Do parent request special education due process hearings because they expect to be reimbursed for the fees paid to expert witnesses or lay advocates? No.

Parents request special education due process hearings because they want to obtain an appropriate special education program for their child.

Most parents want to resolve their dispute before a due process hearing is held. If the dispute is not resolved, parents hope to prevail. Most parents do not consciously think about whether or not they will recover expert witness fees. Most parents, who have given serious thought to these issues before they request a due process hearing, are aware that they are entitled to recover attorneys’ fees if they prevail. Most of these parents also know that if their case settles, they are unlikely to recover attorneys' fees.

Comprehensive Psycho-Educational Evaluations

When we do training programs, we advise parents that if they think the public school program is not appropriate for their child, they should not expect the school to accept their beliefs about the appropriateness of the school's program. Parents must obtain a comprehensive psycho-educational evaluation from an expert in the private sector that describes, in detail, the child's educational needs and the program that is necessary to meet these needs.

In some cases, the costs of evaluations and other diagnostic tests are at least partially covered by medical insurance, or may be available from child development clinics that use sliding fee scales.

After the parents obtain a comprehensive evaluation that clearly describes the child's unique needs and how the child's special education program should be changed to meet these needs, they must make some important decisions. Should they continue to advocate for their child on their own? Should they request assistance from a lay advocate or an attorney?

Role of the Lay Advocate

If parents are assisted by a lay advocate, they may be able to resolve their dispute with the school without legal intervention. If the parents are unable to resolve their dispute and proceed to litigation, some states allow parents to be represented by lay advocates.

If parents are represented by a lay advocate who is successful, they are not entitled to recover the fees they paid to the lay advocate under the attorney fee reimbursement provision of the IDEA. However, if the lay advocate works as an employee of an attorney, or if the parents are represented by an attorney, then the parents may be reimbursed for this legal representation.

Due Process Hearings

More than 6.5 million children with disabilities receive special education services under IDEA.

Approximately 3,000 due process hearings are held annually. Only 10 percent of these cases - about 300 a year - are appealed to Court. Parents prevail in about 43 percent of these cases.

Thus, this decision will have a direct impact on fewer than 150 parents.

Preparing for Litigation

From a psychological perspective, the Supreme Court's decision in Arlington v. Murphy may cause parents to think twice before initiating litigation - not a bad thing.

If parents have taken the appropriate steps, they will use evidence from the psycho-educational evaluation by the private sector expert to support their position that the school's educational program is not appropriate and needs to be changed.

It is unlikely that parents will fail to take the necessary steps to prepare for litigation because they do not expect to recover fees for their “expert witness.”

Wrightslaw Note: This article may be photocopied and distributed.


The U. S. Supreme Court's decision in Arlington v. Murphy is at:

Listen to the Oral Argument (MP3 download)

The history of this case and links to the briefs filed with the U. S. Supreme Court are available on the Arlington v. Murphy page at:

Read Pete's description of oral argument and his prediction of a 5-4 or 6-3 vote at:

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Last Revised: 07/14/08

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