US SUPREME COURT DECISIONS

“With slightly different wording, both the Senate bill and the House amendment provide for the awarding of attorneys’ fees in addition to costs. The Senate recedes to the House and the House recedes to the Senate with an amendment clarifying that ‘the court, in its discretion, may award reasonable attorneys’ fees as part of the costs . . .’ This change in wording incorporates the Supreme Court [’s] Marek v. Chesny decision [473 U. S.1 (1985)]. The conferees intend that the term ‘attorneys’ fees as part of the costs’ include reasonable expenses and fees of expert witnesses and the reasonable costs of any test or evaluation which is found to be necessary for the preparation of the parent or guardian’s case in the action or proceeding, as well as traditional costs incurred in the course of litigating a case.” Id., at 5 (emphasis added; citation omitted).

The Conference Report was returned to the Senate and the House. A motion was put to each to adopt the Conference Report, and both the Senate and the House agreed to the Conference Report by voice votes. See Appendix B, infra, at 22 (Senate); Appendix C, infra, at 23 (House). No objection was raised to the Conference Report’s statement that the cost-shifting provision was intended to authorize expert costs. I concede that “sponsors of the legislation did not mention anything on the floor about expert or consultant fees” at the time the Conference Report was submitted. Ante, at 3, n. 2 (Ginsburg, J., concurring in part and concurring in judgment). But I do not believe that silence is significant in light of the fact that every Senator and three of the five Representatives who spoke on the floor had previously signed his name to the Conference Report—a Report that made Congress’ intent clear on the first page of its explanation. See Appendix A, infra, at 19. And every Senator and Representative that took the floor preceding the votes voiced his strong support for the Conference Report. 132 Cong. Rec. 16823–16825 (1986) (Senate); id., at 17607–17612 (House). The upshot is that Members of both Houses of Congress voted to adopt both the statutory text before us and the Conference Report that made clear that the statute’s words include the expert costs here in question.

B

The Act’s basic purpose further supports interpreting the provision’s language to include expert costs. The IDEA guarantees a “free” and “appropriate” public education for “all” children with disabilities. 20 U. S. C. A. §1400(d)(1)(A) (Supp. 2006); see also §1401(9)(A) (defining “free appropriate public education” as one “provided at public expense,” “without charge”); §1401(29) (defining “special education” as “specially designed instruction, at no cost to parents, to meet the unique needs of a child with a disability” (emphasis added)).

Parents have every right to become involved in the Act’s efforts to provide that education; indeed, the Act encourages their participation. §1400(c)(5)(B) (IDEA “ensur[es] that families of [disabled] children have meaningful opportunities to participate in the education of their children at school”). It assures parents that they may question a school district’s decisions about what is “appropriate” for their child. And in doing so, they may secure the help of experts. §1415(h)(1) (parents have “the right to be accompanied and advised by counsel and by individuals with special knowledge or training with respect to the problems of children with disabilities”); see generally Schaffer v. Weast, 546 U. S. ___, ___ (2005) (slip op., at 3–4) (detailing Act’s procedures); Board of Ed. of Hendrick Hudson Central School Dist., Westchester Cty. v. Rowley, 458 U. S. 176, 205–206 (1982) (emphasizing importance of Act’s procedural guarantees).

The practical significance of the Act’s participatory rights and procedural protections may be seriously diminished if parents are unable to obtain reimbursement for the costs of their experts. In IDEA cases, experts are necessary. See Kuriloff & Goldberg, Is Mediation a Fair Way to Resolve Special Education Disputes? First Empirical Findings, 2 Harv. Negotiation L. Rev. 35, 40 (1997) (detailing findings of study showing high correlation between use of experts and success of parents in challenging school district’s plan); Kuriloff, Is Justice Served by Due Process?: Affecting the Outcome of Special Education Hearings in Pennsylvania, 48 Law & Contemp. Prob. 89, 100–101, 109 (1985) (same); see also Brief for National Disability Rights Network et al. as Amici Curiae 6–15 (collecting sources); cf. Schaffer, supra, at ___ (slip op., at 5) (Ginsburg, J., dissenting) (“[T]he vast majority of parents whose children require the benefits and protections provided in the IDEA lack knowledge about the educational resources available to their child and the sophistication to mount an effective case against a district-proposed IEP” (internal quotation marks and alterations omitted)).

Experts are also expensive. See Brief for Respondents 28, n. 17 (collecting District Court decisions awarding expert costs ranging from $200 to $7,600, and noting three reported cases in which expert awards exceeded $10,000). The costs of experts may not make much of a dent in a school district’s budget, as many of the experts they use in IDEA proceedings are already on the staff. Cf. Oberti v. Board of Ed. Clementon School Dist., 995 F. 2d 1204, 1219 (CA3 1993). But to parents, the award of costs may matter enormously. Without potential reimbursement, parents may well lack the services of experts entirely. See Department of Education, M. Wagner et al., The Individual and Household Characteristics of Youth With Disabilities: A Report from the National Longitudinal Transi- tion Study–2 (NLTS–2), pp. 3–5 (Aug. 2003) (finding that 25% of disabled children live in poverty and 65% live in households with incomes less than $50,000); see Department ofEducation, M. Wagner et al., The Child- ren We Serve: The Demographic Characteristics of Elementary and Middle School Students with Disabilities and Their Households, p. 28 (Sept. 2002), available at http: // www.seels.net / designdocs / SEELS _ Children _ We _Serve_Report.pdf (as visited June 23, 2006, and available in Clerk of Court’s case file) (finding that 36% of disabled children live in households with incomes of $25,000 or less).

In a word, the Act’s statutory right to a “free” and “appropriate” education may mean little to those who must pay hundreds of dollars to obtain it. That is why this Court has previously avoided interpretations that would bring about this kind of result. See School Comm. of Burlington v. Department of Ed. of Mass., 471 U. S. 359 (1985) (construing IDEA provision granting equitable authority to courts to include the power to order reimbursement for parents who switch their child to private schools if that decision later proves correct); id., at 370 (without cost reimbursement for prevailing parents, “the child’s right to a free appropriate public education, the parents’ right to participate fully in developing a proper individualized education plan (IEP), and all of the procedural safeguards would be less than complete”); Florence County School Dist. Four v. Carter, 510 U. S. 7, 13 (1993) (holding that prevailing parents are not barred from reimbursement for switching their child to a private school that does not meet the IDEA’s definition of a free and appropriate education). In Carter, we explained: “IDEA was intended to ensure that children with disabilities receive an education that is both appropriate and free. To read the provisions of §1401(a)(18) to bar reimbursement in the circumstances of this case would defeat this statutory purpose.” Id., at 13–14 (citation omitted).

To read the word “costs” as requiring successful parents to bear their own expenses for experts suffers from the same problem. Today’s result will leave many parents and guardians “without an expert with the firepower to match the opposition,” Schaffer, supra, at __ (slip op., at 11), a far cry from the level playing field that Congress envisioned.

II

The majority makes essentially three arguments against this interpretation. It says that the statute’s purpose and “legislative history is simply not enough” to overcome: (1) the fact that this is a Spending Clause case; (2) the text of the statute; and (3) our prior cases which hold that the term “costs” does not include expert costs. Ante, at 12. I do not find these arguments convincing.

A

At the outset the majority says that it “is guided by the fact that Congress enacted the IDEA pursuant to the Spending Clause.” Ante, at 3. “In a Spending Clause case,” the majority adds, “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.” Ante, at 12. Thus, the statute’s “conditions must be set out ‘unambiguously.’ ” Ante, at 3–4 (citing Pennhurst State School and Hospital v. Halderman, 451 U. S. 1, 17 (1981) and Rowley, 458 U. S., at 204, n. 26). And “[w]e must ask” whether the statute “furnishes clear notice regarding the liability at issue in this case.” Ante, at 4.

I agree that the statute on its face does not clearly tell the States that they must pay expert fees to prevailing parents. But I do not agree that the majority has posed the right question. For one thing, we have repeatedly examined the nature and extent of the financial burdens that the IDEA imposes without reference to the Spending Clause or any “clear-statement rule.” See, e.g., Burlington, supra, at 369 (private school fees); Carter, supra, at 13 (same); Smith, 468 U. S., at 1010–1011 (attorneys’ fees); Cedar Rapids Community School Dist. v. Garret F., 526 U. S. 66, 76–79 (1999) (continuous nursing service); but see id., at 83 (Thomas, J., joined by Kennedy, J., dissenting). Those cases did not ask whether the statute “furnishes clear notice” to the affirmative obligation or liability at issue.

For another thing, neither Pennhurst nor any other case suggests that every spending detail of a Spending Clause statute must be spelled out with unusual clarity. To the contrary, we have held that Pennhurst’s requirement that Congress “unambiguously” set out “a condition on the grant of federal money” does not necessarily apply to legislation setting forth “the remedies available against a noncomplying State.” Bell v. New Jersey, 461 U. S. 773, 790, n. 17 (1983) (emphasis added) (rejecting Pennhurst-based argument that Elementary and Secondary Education Act of 1965 did not unambiguously provide that the Secretary could recover federal funds that are misused by a State). We have added that Pennhurst does not require Congress “specifically” to “identify” and “proscribe each condition in [Spending Clause] legislation.” Jackson v. Birmingham Bd. of Ed., 544 U. S. 167, 183 (2005) (rejecting argument that Pennhurst precluded interpreting Title IX’s private cause of action to encompass retaliation (internal quotation marks and alterations omitted)); see also Bennett v. Kentucky Dept. of Ed., 470 U. S. 656, 665–666 (1985). And we have denied any implication that “suits under Spending Clause legislation are suits in contract, or that contract-law principles apply to all issues that they raise.” Barnes v. Gorman, 536 U. S. 181, 188–189, n. 2 (2002) (emphasis added).

These statements and holdings are not surprising. After all, the basic objective of Pennhurst’s clear-statement requirement does not demand textual clarity in respect to every detail. That is because ambiguity about the precise nature of a statutory program’s details—particularly where they are of a kind that States might have anticipated—is rarely relevant to the basic question: Would the States have accepted the Federal Government’s funds had they only known the nature of the accompanying conditions? Often, the later filling-in of details through judicial interpretation will not lead one to wonder whether funding recipients would have agreed to enter the basic program at all. Given the nature of such details, it is clear that the States would have entered the program regardless. At the same time, to view each statutory detail of a highly complex federal/state program (involving say, transportation, schools, the environment) simply through the lens of linguistic clarity, rather than to assess its meanings in terms of basic legislative purpose, is to risk a set of judicial interpretations that can prevent the program, overall, from achieving its basic objectives or that might well reduce a program in its details to incoherence.

This case is about just such a detail. Permitting parents to recover expert fees will not lead to awards of “indeterminate magnitude, untethered to compensable harm” and consequently will not “pose a concern that recipients of federal funding could not reasonably have anticipated.” Barnes, 536 U. S., at 191 (Souter, J., joined by O’Connor, J., concurring) (citation and internal quotation marks omitted). Unlike, say, punitive damages, an award of costs to expert parties is neither “unorthodox” nor “indeterminate,” and thus does not throw into doubt whether the States would have entered into the program. Id., at 188. If determinations as to whether the IDEA requires States to provide continuing nursing services, Cedar Rapids, supra, or reimbursement for private school tuition, Burlington, supra, do not call for linguistic clarity, then the precise content of recoverable “costs” does not call for such clarity here a fortiori.

B

If the Court believes that the statute’s language is unambiguous, I must disagree. The provision at issue says that a court “may award reasonable attorneys’ fees as part of the costs” to parents who prevail in an action brought under the Act. 20 U. S. C. A. §1415(i)(3)(B) (Supp. 2006). The statute neither defines the word “costs” nor points to any other source of law for a definition. And the word “costs,” alone, says nothing at all about which costs falls within its scope.

Neither does the statutory phrase—“as part of the costs to the parents of a child with a disability who is the prevailing party”—taken in its entirety unambiguously foreclose an award of expert fees. I agree that, read literally, that provision does not clearly grant authority to award any costs at all. And one might read it, as the Court does, as referencing another federal statute, 28 U. S. C. §1920, which provides that authority. See ante, at 5; see also §1920 (federal taxation of cost statute). But such a reading is not inevitable. The provision (indeed, the entire Act) says nothing about that other statute. And one can, consistent with the language, read the provision as both embodying a general authority to award costs while also specifying the inclusion of “reasonable attorneys’ fees” as part of those costs (as saying, for example, that a court “may award reasonable attorneys’ fees as part of [a] costs [award]”).

This latter reading, while linguistically the less natural, is legislatively the more likely. The majority’s alternative reading, by cross-referencing only the federal general cost-awarding statute (which applies solely in federal courts), would produce a jumble of different cost definitions applicable to similar IDEA administrative and state-court proceedings in different States. See §1920 (“A judge or clerk of any court of the United States may tax as costs the following. . . .” (emphasis added)). This result is particularly odd, as all IDEA actions must begin in state due process hearings, where the federal cost statute clearly does not apply, and the overwhelming majority of these actions are never appealed to any court. See GAO, Report to the Ranking Minority Member, Committee on Health, Education, Labor and Pensions, U. S. Senate, Special Education: Numbers of Formal Disputes are Generally Low and States Are Using Mediation and Other Strategies to Resolve Conflicts (GAO–03–897), p. 13 (2003) (approximately 3,000 administrative hearings annually; under 10% appealed to state or federal court); see also Moore v. District of Columbia, 907 F. 2d 165, 166 (CADC 1990) (en banc) (joining other Circuits in holding that IDEA authorizes an “award of attorney fees to a parent who prevails in [IDEA] administrative proceedings”). And when parents do appeal, they can file their actions in either state or federal courts. 20 U. S. C. A. §1415(i)(2)(A) (Supp. 2006).

Would Congress “obviously” have wanted the content of the word “costs” to vary from State to State, proceeding to proceeding? Ante, at 5. Why? At most, the majority’s reading of the text is plausible; it is not the only possible reading.

C

The majority’s most persuasive argument does not focus on either the Spending Clause or lack of statutory ambiguity. Rather, the majority says that “costs” is a term of art. In light of the law’s long practice of excluding expert fees from the scope of the word “costs,” along with this Court’s cases interpreting the word similarly in other statutes, the “legislative history is simply not enough.” Ante, at 12.

I am perfectly willing to assume that the majority is correct about the traditional scope of the word “costs.” In two cases this Court has held that the word “costs” is limited to the list set forth in 28 U. S. C. §1920 and does not include fees paid to experts. See Crawford Fitting Co. v. J. T. Gibbons, Inc., 482 U. S. 437 (1987) (interpreting Fed. Rule Civ. Proc. 54(d)); West Virginia Univ. Hospitals, Inc. v. Casey, 499 U. S. 83 (1991) (interpreting 42 U. S. C. §1988 (1988 ed.)). But Congress is free to redefine terms of art. See, e.g., Casey, 499 U. S., at 88–90 (citing examples of statutes that shift “ ‘costs of litigation (including . . . expert witness fees)’ ”). And we have suggested that it might well do so through a statutory provision worded in a manner similar to the statute here—indeed, we cited the Conference Report language here at issue. Id., at 91–92, n. 5 (characterizing language as an “apparent effort to depart from ordinary meaning and to define a term of art” and noting that Congress made no such “effort” in respect to 42 U. S. C. §1988).

Regardless, here the statute itself indicates that Congress did not intend to use the word “costs” as a term of art. The HCPA, which added the cost-shifting provision (in §2) to the IDEA, also added another provision (in §4) directing the GAO to “conduct a study of the impact of the amendments to the [IDEA] made by section 2” over a 312 year period following the Act’s effective date. §4(a), 100 Stat. 797. To determine the fiscal impact of §2 (the cost-shifting provision), §4 ordered the GAO to submit a report to Congress containing, among other things, the following information: