Clear Notice and the Spending Clause
on Jun 28, 2006 at 9:22 am
Sam Bagenstos has an important post about the somewhat surprising prominence of the Spending Clause in the Court’s decision on Monday in Arlington Central School District Board of Educ. v. Murphy.
As Sam explains, and as Justice Ginsburg stresses in her concurrence, the holding of the case is not so unexpected in light of prior precedents — namely, that the “costs” that may be awarded to prevailing parents in a case under the Individuals with Disabilities Education Act (IDEA) does not include fees for services rendered by an educational consultant during the proceedings. (For more details on the case, see James D’Auguste’s post below.)
Of much greater potential importance is the Court’s rationale, which may signal an important shift in the way the post-O’Connor Court will construe Spending Clause statutes. The Court majority frames its opinion around the notion that because the IDEA is a Spending Clause statute, expert fees cannot be deemed part of “costs” unless Congress provided “clear notice” to the states of that fact. (Justice Ginsburg expressly declines to join this part of the opinion.) As Justice Breyer argues in dissent, the Court had explained just last Term (in the Jackson case) that the Spending Clause “clear notice” doctrine does not require Congress “specifically” to “identify” and “proscribe each condition in [Spending Clause] legislation” — even where, as in Jackson, the question is as to the substantive obligations imposed on states. In particular, the Court has “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,'” including in the 1999 case of Cedar Rapids Community School Dist. v. Garret F., in which the Court held that the IDEA reuires public school districts to provide ventilator-dependent students with certain nursing services during school hours, despite the lack of any plain statement to that effect in the statute.
In cases such as Jackson, Garret F., and Davis v. Monroe County Board of Educ., the Court had in recent years rejected arguments made by Justices in dissenting opinions to apply the “clear notice” doctrine more aggressively. As I noted one year ago (when Justice O’Connor announced her retirement), Spending Clause cases such as Jackson and Davis were among the closely divided precedents most vulnerable to revision after Justice O’Connor was replaced. Arlington Central — written by Justice Alito — suggests that this will, indeed, be one area of the law in which the change in Justices might make a big difference.
One other detail here is worth emphasizing: The Court was not alone in shifting its view of the Spending Clause “clear notice” doctrine. In virtually all previous Spending Clause cases, including those cited above, the United States has expressly or implicitly argued against application of a “clear notice” requirement — which is to be expected, because that doctrine limits the power of the federal government to impose conditions on states that have accepted federal funds. Most recently, in the Bush Administration, see, e.g., the SG’s brief in Jackson (which argued for a broad interpretation of Title IX without even mentioning the Spending Clause), and the SG’s brief in Cutter v. Wilkinson, which specifically addressed the Spending Clause “clear notice” requirement. But in Arlington Central, the SG actually argued (see page 13 of his brief) that the “clear notice” requirement was applicable in this IDEA case — citing Justice Thomas’s dissent in Garret F.. In Garret F. itself, by contrast, the SG had argued, contrary to the Thomas dissent, that “[t]here is nothing in [the Court’s Spending Clause precedents] to suggest that, when it is clear that Congress intended to impose privately enforceable obligations on recipients of federal funds to provide special education and related services, the scope of those obligations should be determined by anything other than normal rules of statutory construction.”
