Read This IDEA Opinion From The Fifth Circuit

United States Circuit Judge Catharina Haynes has a terrific, must-read partial concurrence/partial dissent in an unpublished opinion her court issued last week in S.H. v. Plano Independent School District.  The case is an IDEA case that presented a very technical issue.  Basically, the parents succeeded in administrative proceedings in obtaining reimbursement for a private school placement.  But the school district had made a settlement offer before the administrative hearing.  That settlement would have awarded the parents $15,500 in reimbursement, but the parents rejected it.  The administrative hearing officer awarded $20,475 in reimbursement.  The district court, however, reduced that award to $14,625.  And because the parents ultimately recovered less than the settlement offer they had rejected, the district court denied them attorneys' fees.

A few provisions of the IDEA are relevant to the attorneys' fees question.  Title 20 U.S.C. 1415(i)(3)(D) prohibits the award of attorneys' fees "for services performed subsequent to the time of a written offer of settlement" if the relief the parents finally obtain is not as favorable as what they would have received had they accepted the offer.  But 20 U.S.C. 1414(i)(3)(E) makes an exception to that fee bar in cases in which the parent was the prevailing party (as the parents were here) and "was substantially justified in rejecting the settlement offer."  All three judges concluded that the parents had not shown that they were substantially justified in rejecting the school district's settlement offer here.  Thus, all three judges held that the district court appropriately denied attorneys' fees for work done after the offer of settlement.

As for work done before the settlement offer, the judges divided.  The majority (Judges Carolyn Dineen King and Edward Prado) concluded that the parents' rejection of the settlement offer unreasonably protracted the final resolution of the case, and thus was a basis for denying even pre-offer fees.  See 20 U.S.C. 1415(i)(3)(F)(i) (court shall reduce attorneys' fees "accordingly" when "the parent, or the parent’s attorney, during the course of the action or proceeding, unreasonably protracted the final resolution of the controversy").  Judge Haynes argued that this was essentially double counting:

Certainly, rejecting a reasonable settlement offer is one factor that can be considered in analyzing unreasonable protraction.  But—other than in a * * * situation where the school district offers everything asked for and then some—it is not the sole factor.  * * *.  Instead, the district court should analyze unreasonable protraction in the context of the overall conduct of the litigation, including the parents' good faith, the reasonableness of the legal position taken and arguments made, participation in efforts to resolve the litigation, the issues prevailed upon, and the type and amount of relief ultimately obtained. No such analysis was conducted here.

Judge Haynes also argued that the majority improperly put the burden on the parents to show that they did not unreasonably protract the proceedings, and that even if the parents' pre-offer fees should be reduced under 1415(i)(3)(F)(i), there was no basis for denying them fees entirely.

I think Judge Haynes has the better of this argument.  But what makes this opinion a must-read is Judge Haynes's appreciation of the importance of attorneys' fees in ensuring that students with disabilities and their parents can actually realize the rights guaranteed by the IDEA.  Here are key excerpts (I've omitted a bunch of footnotes):

Faced with the challenges of raising a child with a disability, parents often depend on public educational authorities for assistance in “ensuring equality of opportunity, full participation, independent living, and economic self-sufficiency for” their child. 20 U.S.C. § 1400(c)(1). Congress intended for the IDEA to promote these outcomes, id. § 1400(d) (listing the IDEA’s purposes), and added the attorneys’ fees and related costs provisions now found in 20 U.S.C. § 1415 to increase parents’ participation in and access to the IDEA’s remedial scheme. See Handicapped Children’s Protection Act of 1986, Pub. L. No. 99-372, 100 Stat. 796 (1986) (enacting, inter alia, attorneys’ fees award provision), abrogating Smith v. Robinson, 468 U.S. 992 (1984) (holding that, because the IDEA’s predecessor statute lacked an attorneys’ fees provision, such awards could not be obtained by enforcing education-related rights through other civil rights statutes that permitted awards); cf. R. Shep Melnick, Taking Remedies Seriously: Can Courts Control Public Schools?, in From Schoolhouse to Courthouse 40 (Joshua M. Dunn & Martin R. West eds., 2009) (“Schoolhouse”) (observing that the “combination of attorneys’ fees and monetary damages significantly increased incentives for private parties to file suits” under federal civil rights statutes, fostered the development of “a private bar . . . to litigate [such] cases,” and “had the effect not just of increasing the number of cases filed but also of augmenting the political support for this enforcement mechanism”). 

As many parents unfortunately discover, the quest to procure a free appropriate public education for their child is anything but free, and it certainly is not easy. The IDEA’s complex procedural requirements and opaque, jargon- laden provisions easily could discourage even the most dedicated parents from “going it alone.” Although the IDEA provides parents a right to use attorneys or other specialized individuals in resolving special education disputes, 20 U.S.C. § 1415(h)(1), it is difficult to find—let alone afford—attorneys to take these cases, especially in those areas where such help is most needed. See Lynn M. Daggett, Special Education Attorney’s Fees, 8 U.C. Davis J. of Juvenile L. & Pol’y 1, 24-29 (2004) (noting disparity in number of IDEA disputes brought in different states, in urban vs. rural districts, and by socioeconomic status). 

Some of the children who qualify for services under the IDEA come from underprivileged families lacking in resources to pursue a complex process. See, e.g., Kelly D. Thomason, Note, The Costs of a “Free” Education, 57 Duke L.J. 457, 483-84 (2007). It nonetheless falls to such families to prove the inadequacy of a school district’s actions and to bear the cost of the experts inevitably required to make such a case. See Arlington Cent. Sch. Dist. v. Murphy, 548 U.S. 291, 293-94 (2006) (expert costs); Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 51 (2005) (IEP burden). On top of all this, although Congress intended for the IDEA to provide relatively quick resolution to special education disputes, this more than six year-old case exemplifies the tragic reality that such controversies have a tendency to mature more slowly than the children at issue. See, e.g., Jamie S. v. Milwaukee Pub. Schs., 668 F.3d 481, 484 (7th Cir. 2012) (ending eleven-year-old dispute over school district’s alleged systemic violations of IDEA’s “child-find” provision by decertifying class).

* * *

However inadvertently, the attorneys’ fee ruling here only further steepens an already-uphill climb parents face in this area by turning every settlement offer into a game of high-stakes poker between school districts and the parents of special-needs children. See Thomason, supra, at 484-85 (discussing the rarity of IDEA due process hearings and the minute amount of special education funds (0.3%) actually spent on IDEA disputes). In addition to cash, experts, and perseverance, parents with legitimate arguments for more benefits for their special-needs child apparently must also arm themselves with a crystal ball accurate within mere percentage points of what a “final” adjudicator might actually award. If they are wrong, either the lawyer does not get paid or the parents get saddled with a bill they likely cannot afford—providing disincentives for lawyers to take these types of cases and for parents to exercise their IDEA-given right to disagree with the school district’s provision of services in the future.