FAPE requires school districts to provide access to general education and to specialized educational services, free of charge, to students with disabilities. Part of the Individuals with Disabilities in Education Act (1990, amended 2004), FAPE provisions give parents and educators a structure to approach modifications and accommodations in the public school setting to ensure adequate student progress to achieve state standards.
It was new to me, until I met two different families who had sued the school on behalf of their children with special needs. One family prevailed in court. The other did not and remained battling with the school district, long after they had taken judicial proceedings as far as they could afford.
Parents file FAPE lawsuits for various reasons, including an inability to work with the school district to achieve a satisfactory education program for the child, inability to monitor or modify the plan, and a failure to implement the education plan.
However, parents with special needs children seeking appropriate public education do not recover expert witness fees. Unlike plaintiffs in ADA, Title VII, Section 1983, and other civil rights styled cases, there is no statutory provision for the prevailing party to recover expert witness fees. The burden of proof upon the parent plaintiffs is high, including evidence on educational methods, available supports within the current school and district, medical and mental health issues, and student prognosis. The need for the expert witness in the FAPE case is absolute, but parents are caught between spending financial resources on their children or on an expert witness testimony and other legal expenses.
By contrast, the defendant school has a various connections and payroll of various staff who have credentials to become certified as expert witnesses. These educators, therapists, and administrators understand not only the theory, but how it is applied within the district and the school, as well as for the benefit of the child. The employee who becomes an expert witness for the school district requires an equally strong expert witness for parents and their child.
More than one organization like the Autism National Committee is advocating federal legislation to make litigation affordable for parents of children with disabilities, which would include payment of expert witness fees to parents who prevail in their claim.
By Paloma A. Capanna, Attorney & Policy Analyst