Dear Friend,
As you may be aware, the United States Supreme Court has issued two horrible decisions over the last two years from the point of view of parents trying to assert their right to a free and appropriate public education for their disable child. It is time for Congress to step in and wipe out these decisions. To that end, I wrote the letter below to Senators and Representatives from Connecticut. If you are interested, I think you should do the same. If you have any questions or want to discuss this, let me know.
Andy Feinstein
The Honorable
Joseph Lieberman
United States Senate
Washington, D.C.
20510
Dear Senator:
Twice in the last two years, the United States Supreme Court has rendered decisions substantially abrogating the right of parents of children with disabilities to secure a free appropriate public education for their children. I ask that you take a leading role in legislatively reversing these decisions and restoring the balance created by the Individuals with Disabilities Education Act (IDEA).
As you know, the federal Congress, in 1974, followed
Connecticut in establishing a guarantee to education for children with disabilities.
The IDEA places an array of requirements on states that accept federal elementary and secondary education funds.
To ensure that individual students are provided with appropriate educations, the IDEA establishes an administrative hearing process under which parents or guardians can compel school districts to meet the requirements of the IDEA.
If the parent is successful, the school district is obligated to pay the parents’ legal fees.
Decisions of the administrative hearing officer are subject to court review.
In Schaffer v. Weast, the Court held that, where parents bring a due process action challenging the educational program offered by the district, the parents bear the burden of proof. While this decision did not overturn Connecticut’s regulation assigning the burden of proof to the school district, it did have a severe effect throughout the country and has signaled to the federal courts a level of deference to school district decision making which is not merited, even in Connecticut. The fact is that school districts have the staff, money and consultants to overwhelm the parents and their witnesses in a hearing and to do so with the very tax dollars paid by the parent. The Schaffer decision unbalances the field and dilutes the child’s right to a free appropriate public education, even in
Connecticut.
Far more devastating for
Connecticut children with disabilities was last year’s decision in
Arlington Central School District v. Murphy, in which the Court held that parents could not recover the cost of their expert witness where they prevail in a due process hearing.
The determination of what constitutes an appropriate education is, at its heart, the sort of determination that can only be made based on expert testimony.
Stated otherwise, a parent of a child with a disability cannot hope to win against the district in a due process hearing without
The Honorable
Joseph Lieberman
September 10, 2007
Page Two
one or more expert witnesses. Educational experts often cost between $2,000 and $4,000 for testing, observation, interviews, report writing and testifying. For a child with autism, a parent may need to retain three or more experts – in diagnosis, applied behavioral analysis, and communication – to effectively challenge a school’s program. With no hope of recovering these fees, only the wealthiest of parents can afford to exercise their right to due process.
You have spoken out in the past about the need to provide education to students with disabilities. You have supported reauthorization of the IDEA in 2004. I think it is not acceptable that the activist
Roberts Court
can blithely wipe out the rights that you and your colleagues overwhelmingly created. I ask you to take the lead in drafting and pushing legislation to overturn these two unfortunate decisions.
Sincerely yours,
Andrew A. Feinstein
