Publications
End of Term (3 of 3) – Arlington Central School District Board of Education v. Murphy (05-18) and Beard v. Banks (04-1739)
Greetings, Court fans!
And welcome to the last Update of the Term. After the last few weeks of contentious and high-profile decisions, it is unlikely that the last two opinions will knock your socks off, but here goes . . . .
In Arlington Central School District Board of Education v. Murphy (05-18), the Court held that the Individuals with Disabilities Education Act does not require school districts sued under the Act to reimburse prevailing parents for expert witness fees. IDEA provides that a court “may award reasonable attorneys’ fees as part of costs” to prevailing parents; after the Murphys won an IDEA suit, the district court awarded them their expert fees under this provision. The Second Circuit affirmed, but the Court reversed by a vote of 6 to 3. Led by Justice Alito, the Court explained that IDEA was enacted pursuant to the Spending Clause, whereby Congress can attach strings to states’ receipt of federal funds so long as states get clear notice of those obligations so they can evaluate whether to accept the funds. The Court held that far from providing clear notice that states could be liable for expert fees, the text of IDEA explicitly provides only for “attorneys’ fees” and “costs,” terms of art that cannot be interpreted to include expert fees (the Court noted that “costs” likely referred to costs as defined in other federal statutes, which did not include expert fees). Moreover, in Crawford Fitting Co. v. J.T. Gibbons, Inc. (1987) and West Virginia Hospitals, Inc. v. Casey (1991), the Court addressed very similar language and found that it did not encompass expert fees. While the legislative history admittedly supported a contrary interpretation (including a Conference Committee Report specifically stating that Congress intended to include recovery of expert costs), this was “simply not enough” given that every other indicator cut against that history. This was particularly true because, “[i]n a Spending Clause case, the key is not what a majority of the Members of both Houses intend but what the States are clearly told regarding the conditions that go along with the acceptance of those funds.” Justice Ginsburg concurred in part and in the judgment. While she disagreed that any special “clear notice” requirement applied in Spending Clause cases, she agreed that the Court’s prior precedent, along with the fact that Congress had expressly authorized recovery of expert fees in statutes “too numerous . . . to ignore,” required a finding that IDEA’s cost-shifting provision could not reasonably be interpreted to cover expert fees.
In dissent, Justice Breyer (joined by Stevens and Souter) walked through the legislative history, which he believed (and the majority did not really dispute) made abundantly clear that Congress intended to include expert fees. Further, the cost-shifting provision was enacted as part of the Handicapped Children’s Protection Act, which also required the GAO to study the fiscal impact of the cost-shifting provision, including data on expert expenses. For the dissenters, this requirement would be nonsensical if expert fees were not reimbursable. Moreover, the word “costs” is not so unambiguous as to require the Court to ignore congressional intent. The dissenters also reject application of the clear-notice rule to every detail of a statute enacted under the Spending Clause, finding that it should not be applied to mere remedies and other details unlikely to affect a state’s decision whether to accept funds. (The dissent makes an interesting point that the Court previously has construed the statute to require schools to reimburse parents for substantial expenses such as private school tuition, without applying the “clear notice” rule.) For anyone interested in the use of legislative history, you should read page 17 of Breyer’s dissent, where he makes an impassioned plea to “retain all interpretive tools – text, structure, history and purpose.” For Breyer, the majority’s approach “divorces law from life.” Souter issued a separate dissent to emphasize that, for him, the key was Congress’s simultaneous enactment of the fee-shifting provision and the GAO reporting mandate – Congress wouldn’t have required collection of expert witness data if it wasn’t to be included in costs.
And in Beard v. Banks (04-1739), the Court held that Pennsylvania’s policy of denying its most dangerous prisoners, lodged in its Long Term Segregation Unit, access to nonsecular magazines, newspapers and photographs did not violate the First Amendment. Justice Breyer issued the plurality opinion, joined by the Chief, Kennedy and Souter. For them, while constitutional rights are not lost entirely when in prison, they can be restricted in ways that would be inappropriate elsewhere. In determining whether a particular restriction passes muster, the plurality looked to the test developed in Turner v. Safly (1987): whether the restriction is “reasonably related to legitimate penological interests” and is not an “exaggerated response,” giving substantial deference to the professional judgments of prison officials. Turner sets forth four factors to consider in evaluating a restriction: (1) whether there is a valid, rational, connection between the regulation and the governmental interest; (2) whether alternative means of exercising the right are available to prisoners; (3) the impact of accommodating the prisoner’s right; and (4) whether ready alternatives exist to further the government’s interest. Here, the Department of Corrections provided evidence (deposition testimony of the deputy superintendent of prisons) of the reasons for its policy, chief among them encouraging better behavior on the part of Pennsylvania’s Level 2 LTSU prisoners (the “worst of the worst”), and preventing backsliding by Level 1 LTSU inmates (who have slightly greater privileges). Since taking away “virtually the last privilege left to a prisoner” logically would provide a significant incentive to improve behavior, factor 1 was satisfied. Factor 2 cut against the rule, while factors 3 and 4 cut in favor, but ultimately the plurality found these factors not very useful because “deprivation theory does not map easily onto several of Turner’s factors.” Thus, the real test is not in balancing the factors, but in determining whether Pennsylvania’s policy is not just rationally related, but reasonably related to the interest at stake. Here, the plurality believed it was. Pennsylvania applied the policy only to its 40 or so most intractable inmates, and even those inmates were permitted writing paper and certain reading materials like legal materials, a prison library book, and a Bible. Further, deprivation is not necessarily permanent as a prisoner may move out of LTSU Level 2 through good behavior (though only a small percentage do). Finally, the policy was based on the professional judgment of prison officials, who reached an experience-based judgment that the policy would further this objective that was owed substantial deference. The plurality rejected Banks’s argument (based not on evidence he presented but on cites to other court opinions and the lack of sufficiency of the state’s evidence), that there is no evidence that such incorrigible prisoners will change their ways in response (relying in part on the low “graduation” rate out of Level 2), but are in fact more likely to be rehabilitated by increased contact with the outside world. This argument was not enough to create a disputed issue of fact.
While reaching the same result as the plurality, Justice Thomas, joined by Scalia, would apply a different test (one developed by Thomas in his concurrence in Overton v. Bazzetta (2003)). Thomas believes that states can define the meaning of incarceration to include the deprivation of rights, including constitutional rights, provided only that they comply with the Eight Amendment. Here, Pennsylvania implicitly defined incarceration to include an implied delegation to prison officials to discipline and supervise criminals. So long as the officials are not acting ultra vires, the restrictions imposed by them become part of the sentence. Here, the prison officials acted well within their discretion. Further, the Pennsylvania’s policy here is supported by the historical understanding of incarceration as often carrying with it restrictions on access to reading materials. And, while the policy satisfies the Turner criteria, it also highlights their inability to address privilege deprivation cases, since such policies will always fail the second factor, but likely will always pass based on the other three (another plug for Thomas’s alternate approach).
Justice Stevens, joined by Ginsburg, dissented and would have allowed the case to go to a jury. The right to know the news of the day, through newspapers and magazines, and to remain connected to family and individuality through photographs, are core First Amendment rights. A restriction on such rights cannot be said to be reasonably related to a legitimate penological interest if the logical connection between the policy and the goal is “so remote as to render the policy arbitrary or irrational” or if the policy represents an “exaggerated response.” Here, the Department could not establish that no reasonable jury could find that the policy was arbitrary, irrational or exaggerated, even assuming deference to prison officials. While one official simply stated that the policy encouraged rehabilitation, there was no evidence that it actually did so, and the state provided no expert testimony supporting such a psychological effect. Further, Turner’s factors really don’t work in cases of “deprivation theory” because they will always allow the deprivation no matter how severe, particularly if a state isn’t required to provide any better evidence than it did here. Ginsburg wrote separately to emphasize her disagreement with the majority’s approach to summary judgment. While Banks may not have presented evidence to contradict the Department’s, and thus there was no genuine issue as to any material fact, the conclusions to be drawn from those facts were not so clear as to warrant summary judgment. A reasonable jury could well have concluded that Pennsylvania’s policy was not reasonably related.
That’s all for the Term! The next time you hear from us it will be in the form of our annual compilation, including our take on the Term’s highlights and what we hope is a handy guide to all of the decisions.
As always, thanks for reading, and for following the Court with us this Term.
Kim & Ken
From the Appellate Practice Group at Wiggin and Dana. For more information, contact Kim Rinehart, Ken Heath, Aaron Bayer, or Jeff Babbin at 203-498-4400
