Overview
In recent years, the sources of remedy
available to parents of children with educational disabilities
have expanded. Depending on the facts and issues present in the
controversy, parents can request various forms of relief. Of the
many forms of remedy awarded by courts, reimbursement of tuition
and costs, and requests for payment of attorneys’ fees have
become popular in special education cases.
Parents and their advocates know that taking a special education
dispute through the administrative and/or litigation processes
is not inexpensive. Petitioners (usually parents of children
with disabilities) must be prepared to expend their time and
personal funds. In a majority of special education disputes a
major expenditure more often than not involves legal fees. As
Weber, Mawdsley, and Redfield remind us, “[t]he presence of an
attorney is important for parents, and the availability of fees
is designed to make representation easier to obtain.” Weber,
Mawdsley, and Redfield (2005) The key question to ask, however,
is who pays for the expertise and time of the attorney?
Attorneys’ Fees Under IDEA
The Handicapped Children’s Protection Act. The Education for
Handicapped Children Act, 20 U.S.C. 1401, et seq., (1975), did
not provide for awards of attorneys’ fees. However, in1986, the
United States Congress passed the Handicapped Children’s
Protection Act (HCPA), 20 U.S.C. 1415 (e) (4), et seq., as an
amendment to the Education for All Handicapped Children Act (EAHCA).
The HCPA allows “prevailing parties” to petition the court for
recovery of reasonable attorneys’ fees. Following the enactment
of the HCPA (1986), in cases where attorneys’ fees were
requested, courts had to apply the “prevailing parties” rule.
Because courts struggled with this determination (prevailing
party status), cases filed in the late 1980s and early 1990s
produced mixed results. For example, while some courts awarded
attorneys’ fees to parents, Fontenot v Board of Elementary and
Secondary Education (5th Cir. 1986), Holms v District of
Columbia (D.D.C. 1988), and Howley v Tippecanoe School Corp.
(N.D. Ind. 1990); other courts found parents not to be
prevailing parties, Brown v Griggsville Community Union (C.D.
Ill. 1993), and S1 and S2 v North Carolina State Board (4th Cir.
1994).
Subsequently, as decisions grew in number, courts developed and
applied a four-pronged standard to use in establishing
prevailing party status. A party does not have to prevail on all
of the issues, However, to be awarded attorney fees, a party
must show that (1) the relationship between the parties was
altered, (2) the altered relationship resulted from the action
taken, (3) some benefit was realized on at least one significant
issue involved in the case, and (4) the result of the formal
action taken (either in court or in the administrative process)
is legally enforceable. Buckhannon Board and Care Home v West
Virginia Department of Health and Human Services (2001)
Additionally, the party requesting the award of fees carries the
burden of establishing the “reasonableness” of the amount
requested. In some states the amount awarded might be subject to
a statutory cap.
IDEA 2004 prohibits the award of attorneys’ fees “for services
performed subsequent to a written offer of settlement, under
specified conditions.” IDEA Reauthorized 2005 Edition (LexisNexis,
2005) A voluntary settlement does not satisfy the standard. IDEA
2004 also provides for “a reduction of award of attorneys’ fees
under certain circumstances, including where the parent or
parent’s attorney unreasonably protracted the final resolution
of the controversy.” IDEA Reauthorized 2005 Edition (LexisNexis,
2005)
Prevailing Parties and the Administrative Process. As special
education law moved into the late 1990s and early 2000s, the
prevailing party status expanded from courts of law to the
administrative process. Pazik v Gateway Regional School District
(D. Mass. 2001) Thus, recovery of attorneys’ fees became
possible for parties (either parents or school officials) who
prevail in the administrative process. Vacca and Bosher (2003)
As Professor Mark Weber recently summarized, the IDEA 2004
“permits school districts and states that prevail at due process
to recover attorneys’ fees against parents or their attorneys,
not just for court activities but also for the due process
hearing itself.” Weber (2006) In his opinion, this change merely
brings to actions that go to due process the liability for fees
for frivolous litigation that had previously existed for actions
filed in court….” Weber (2006) However, he then clarifies that
“[a]lthough school districts or other defending parties may be
entitled to fees when parents file a case in court that is
frivolous,… there is no provision for a fees award for a
parent’s frivolous due process hearing request.” Weber (2006)
Non-Attorney Fees Awards
Because IDEA authorizes a court to award costs, requests for
fees have expanded in scope. For example, in Lopez v District of
Columbia Public Schools (D.D.C. 2005), parents asked the court
to include clerical fees in the reimbursement award. Other
courts have been asked to award reimbursement for expert witness
fees. In 2005, however, the following question emerged in
special education case out of New York State: Is it possible for
a prevailing party to request and receive court awarded
reimbursement of fees for services rendered by an expert
(non-attorney) educational consultant. In this case the expert
acted as a consultant and did not testify as an expert witness
in court.
As of this writing, the generally accepted rule involving
non-attorney consultants is clear. “Statutory provisions for
attorneys’ fees do not extend to special education lay advocates
who are not lawyers. To permit such fees would…allow a plethora
of unlicensed legal practitioners to have access to public
resources, which would not be in the public’s best interests.”
Alexander and Alexander (2005)
Change May Be Coming: The Arlington Central Case? This past
April 2006 the United States Supreme Court heard oral arguments
in a decision out of the Second Circuit in which parents of a
student covered by IDEA, who went into a federal district court
seeking tuition reimbursement for their child’s education in a
private school, also requested reimbursement for fees paid to a
non-attorney expert/educational consultant. The non-attorney
expert had helped them through out their lawsuit against a local
school system. The United States Court of Appeals for the Second
Circuit affirmed a federal district court decision (2003 U.S.
Dist. LEXIS 12764 [D.D.N.Y. 2003]) in the parents’ favor.
Arlington Central School District v Murphy (2nd Cir. 2005) The
United States Supreme Court granted certiorari (at 126 S.Ct.
978), and oral arguments were heard last month (April 19, 2006).
The narrow question in the Arlington Central is whether a
prevailing party under IDEA may recover fees paid to an
educational consultant?
The Arlington Central case is intriguing for the following
reasons: (1) the parents acted pro se in court (i.e., for
themselves and without the assistance of a trained lawyer), (2)
they depended on the advice of a non-attorney during the entire
course of the administrative and legal processes, (3) the Second
Circuit in its opinion stated that a party has “the right to be
accompanied by counsel and by individuals with special knowledge
or training with regard to problems of children with
disabilities,” (at 12764, note 13), and (4) the court showed a
willingness to reimburse the lay consultant using a rationale
usually reserved for determining attorneys’ fees.
As reported in NSBA Legal Clips (2/23/06), the American
Association of School Administrators, the New York State School
Boards Association, and New York State Council of School
Superintendents joined the National School Boards Association in
an amicus brief arguing against the payment of such fees. In
essence, they question the ramifications and implications of the
high court’s decision in this case. The traditional rule (and
one that consistently has prevented fee-shifting in IDEA cases)
could change. Suffice it to say, the Arlington Central case is
an important one for local public school officials to track.
Policy Implications
Because IDEA is silent on reimbursement of expert fees, we wait
for a July decision in the Arlington Central case. The amount
requested in this case (@ $200 per hour) totaled approximately
$30,000. In my opinion, if the high court affirms the Second
Circuit a floodgate could open. While I recognize the critical
need for parents to have help, assistance, and advice in taking
their child’s case into a court of law, and I applaud the
efforts of the many well prepared lay advocates and special
education consultants, I take a narrow view of what the IDEA
2004 specifically permits; namely, reimbursement of attorneys’
fees for prevailing parties. In my professional opinion, the
broad nature of the Second Circuit’s language legally sanctions
the possible reimbursement of a new category of individuals
(persons who possess “special knowledge or training” in special
education), and opens a window of financial opportunity to a
wide variety of lay consultants.
In my view, the policy implications of the Arlington Central
decision are clear. A proactive approach must be taken to
prevent circumstances that give rise to special education
disputes. A first step to take is to make sure that school
system policies:
-
Demonstrate a commitment to provide for
the best interests of all children in the school system;
especially students with educational disabilities.
-
Emphasize a commitment to work
cooperatively with all parents and guardians; especially
those who represent the interests of students with
educational disabilities.
-
Demonstrate a commitment to reach early
resolution (i.e., formal settlement) of special education
disputes.
-
Emphasize a desire to seek early
resolution of disputes through non-adversarial,
non-litigious, alternative means such as mediation.
-
Demonstrate a respect for and
compliance with special education statutes and regulations
(federal and state).
Resources Cited
Alexander, Kern and Alexander, M. David, AMERICAN PUBLIC SCHOOL
LAW, Sixth Edition (Thompson-West 2005)
Arlington Central School District, 402 F.3d
332 (2nd Cir. 2005), cert. granted, 126 S.Ct. 928 (2005)
Brown v Griggsville Community Union, 817
F.Supp.734 (C.D. Ill.1993)
Buckhannon Board and Care Home v West
Virginia Department of Health and Human Services, 532 U.S. 598
(2001)
Education for All Handicapped Children Act,
20 U.S.C. 1401, et seq. (1975)
Fontenot v Board of Elementary and
Secondary Education, 805 F.2d 1222 (5th Cir. 1986)
Handicapped Children’s Protection Act, 20
U.S.C. 1415 (e)(4), et seq. (1986)
Holms v District of Columbia, 680 F.Supp.40
(D.D.C. 1988)
Howley v Tippecanoe School Corp., 734
F.Supp. 1485 (N.D. Ind. 1990)
IDEA REAUTHORIZATION 2004: 2005: Amendments
of IDEA 2004 (LexisNexis 2005)
Lopez v District of Columbia Public
Schools, 383 F.Supp2d 18 (D.D.C. 2005)
NASB LEGAL CLIPS, Special Education and
Disabilities (March 30, 2006)
Pazik v Gateway Regional School District, 130 F.Supp.2d 217 (D.Mass.
2001)
S1 and S2 v North Carolina State Board, 21
F.3d 49 (4th Cir. 1994)
Vacca, Richard S. and Bosher, William C.,
Jr., LAW AND EDUCATION: CONTEMPORARY ISSUES AND COURT
DECISIONS., Sixth Edition (LexisNexis 2003)
Weber, Mark C., Reflections on the New
Individuals with Disabilities Education Improvement Act, 58
Florida Law Review 8 (January 2006)
Weber, Mark C., Mawdsley, Ralph, and
Redfield, Sarah, SPECIAL EDUCATION LAW: CASES AND MATERIALS (LexisNexis
2004)
Richard S. Vacca
Senior Fellow CEPI
Note: The views expressed in this
commentary are those of the author. |
