This Comment addresses how the Arlington decision, in disallowing the recovery of expert witness fees, will adversely impact parents of children with ASD who seek to invoke due process against the school district. Part III examines the controversy between parents and school districts in providing the most appropriate behavioral interventions and therapies to the child with ASD and the reasons behind the increase in IDEA-related litigation, particularly with respect to students diagnosed with ASD. Part III also explores the meaning of a FAPE, the procedural safeguards afforded to parents of children eligible under the Act, and the congressional intent behind the IDEA's "costs" provision with respect to whether Congress intended expert witness fees to be recoverable as costs. Part IV includes a discussion of the majority and dissenting opinions in Arlington and an analysis of the Supreme Court's use of specific statutory approaches to interpret the "costs" provision. Part IV also details why the Supreme Court made an incorrect ruling based on the legislative history of the Act and prior case law and describes how this decision, coupled with the Supreme Court's ruling in Schaffer v. Weast, which placed the burden of proof on the party seeking relief in an IDEA suit, will discourage parents from challenging the school district. Part V explains how these decisions will impact children with ASD and emphasizes what must now take place from the parent's perspective, post-Arlington, to secure an appropriately tailored education for students with ASD. This Comment concludes that to uphold the IDEA's purpose of providing the student a free appropriate public education, Congress must revise the IDEA's "costs" provision to clearly express its intent to include expert witness fees as a recoverable cost by the prevailing party.
Is a Free Appropriate Public Education Really Free? How the Denial of Expert Witness Fees Will Adversely Impact Children with Autism,
San Diego L. Rev.
Available at: https://digital.sandiego.edu/sdlr/vol45/iss1/8