My Take on Murphy

So, now I've read the Court's decision in Arlington Central School District v. Murphy, and here's my initial take:

This is a bad decision. The bottom line is bad, but it's not unexpected. Expert witnesses are crucial for parents in IDEA cases -- particularly because the school districts have lots of experts on staff. Without the ability to get reimbursed for expert fees, it will be that much harder for parents of kids with disabilities to be able to make successful presentations in due process hearings and judicial review. (Justice Breyer's dissent makes a great argument on that point.) But the Court has pretty consistently held that statutory language requiring the shifting of attorneys' fees does not refer to expert fees unless the statute specifically says so, and this statute doesn't say so. That's why the decision isn't really a surprise. And that's why Justice Ginsburg's concurrence in the judgment shouldn't be such a surprise. I'm sure she'd like to award expert fees, but the case law was pretty clear. (Justice Breyer relied extensively and almost exclusively on legislative history and the broad purposes of the statute. I think we can see that even if Justice Alito isn't a strict textualist, there aren't five votes for Justice Breyer's broad purposivism -- though Justice Ginsburg might have been in his camp if it weren't for the Court's previous jurisprudence on expert fees.)

What makes this decision particularly bad is Justice Alito's opinion for the Court, which relies heavily (and unnecessarily) on the IDEA's status as Spending Clause legislation. Because Congress enacted the IDEA under the Spending Clause, Justice Alito stated, any requirements it imposes on states or localities must be unambiguous in the text of the statute. This is a potentially broad theory that conservative judges and justices have been invoking for some time. If it's read broadly as some lower courts have from time to time done, the theory could significantly limit the reach of a number of civil rights statutes, including Section 504 of the Rehabilitation Act, Title IX of the Education Amendments, and Title VI of the Civil Rights Act, as well as the IDEA. Today's decision doesn't add much to the previous invocations of the Spending Clause clear-statement rule -- though, as Justice Breyer points out, the Court hasn't often applied that rule to rule out of bounds a particular remedy for violating a Spending Clause statute. But it is disturbing that Justice Alito decided to frame his entire opinion around that rule, particularly in a case where (as Justice Ginsburg argued) he didn't have to. A number of decisions of the late Rehnquist Court seemed to be moving away from a stringent reading of the Spending Clause clear-statement rule, so this may be an ominous development.