Butler-Arkow on Fee Shifting Under the New IDEA

New on Westlaw: Jessica Butler-Arkow, The Individuals with Disabilities Education Improvement Act of 2004: Shifting School Districts' Attorneys' Fees to Parents of Children with Disabilities and Counsel, 42 Willamette L. Rev. 527 (2006). The introduction:

For over 30 years, the Individuals with Disabilities Education Act (IDEA) and its predecessors have ensured that children with disabilities receive a free appropriate public education. Today, 6.5 million children are covered by the Act. In response to the historic segregation and wholly inadequate education of children with disabilities, the IDEA gives children a variety of substantive and procedural protections. When parents have cause to believe the IDEA has been violated, they may file an administrative complaint, followed by an IDEA enforcement action in federal court. Parents who prevail generally recover their reasonable attorneys' fees. Such fee-shifting provisions, common in civil rights cases, ensure that parents and other plaintiffs are able to obtain legal representation. The IDEA was amended in December 2004, to allow prevailing school districts to seek their attorneys' fees from parents and their counsel under very limited circumstances. Specifically, the parents' case must be "frivolous, unreasonable, or without foundation" or the parents must have acted with an "improper purpose" in filing it. These amendments went into effect on July 1, 2005 as part of the Individuals with Disabilities Education Improvement Act. Care must be taken in applying these new amendments to avoid chilling IDEA enforcement actions filed on behalf of children with disabilities seeking an adequate education.

The purpose of this article is to review and analyze the new fee-shifting amendments. Part I of this article begins with the history of the IDEA and a summary of its major provisions. Part II summarizes the law applicable to prevailing parents' requests for attorneys' fees in IDEA enforcement actions. Part III discusses the new fee-shifting amendments in detail. First, it describes the general rules applied to a school district's fee request. Second, it analyzes the ability of school districts to recover their fees if the parents' case is frivolous or the parents continue to litigate after the case clearly became frivolous. Third, the article discusses fee-shifting if the parents file a case with an improper purpose. Finally, the article addresses some additional issues raised by these new amendments, including situations involving interrelated claims where only some are frivolous or filed for an improper purpose.