NO, You Don’t Have to Pay the School’s Attorneys’ Fees If You Lose!

Published on August 9, 2009 by Jennifer Laviano

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Congress last “reauthorized” the IDEA in 2004.  As occurred the time before that (1997) there were a number of changes lobbied for by both school and parent organizations.  One of the changes to the 2004 IDEA which has been a serious concern of mine since it was passed was the provision related to attorney’s fees reimbursement.  My issue was not so much with the actual change, but in how I feared it would be misused and misrepresented by school districts.  My worries were justified.

As a civil rights statute, the IDEA provides that parents are entitled to reimbursement of their reasonable attorneys’ fees if they are the “prevailing party” in a Due Process Hearing or subsequent litigation.

The law surrounding how a party becomes the “prevailing party” alone is complicated, and the legal considerations for attorneys’ fees reimbursement under the IDEA are even more so.  In a nutshell, however, if a parent challenges the special education program offered (or not offered) by their school district, and they win, they are entitled to ask the school district to pay their legal bill, and if they don’t, they can present their application for fees reimbursement to a judge.

The public policy which drives this type of “fee-shifting” is that people should not have to be rich to vindicate their civil rights.

The hope is that, by providing attorneys’ fees reimbursement, you will incentivize private attorneys to represent those without means, and you will encourage families who can afford to “front” the costs of a Hearing to do so.  After all, you shouldn’t have to go broke trying to obtain that to which you are entitled by law.  This is why parents of children with special education needs who win their cases have been able to recover attorney’s fees for decades.

But what happens if the parents lose?  Do they have to pay for the school district’s lawyer?

NO, they do not!  Parents do not have to pay for the school’s attorney’s fees just because they lose their case. At all.  And yet, very often I am asked by clients or prospective clients in my Connecticut special education law office whether or not it is true that, if they lose their case, they have to pay the school’s lawyer.  Where is all of the misunderstanding coming from?

New language added to the IDEA in 2004 has generated confusion and fear.

School districts were able to convince Congress in the 2004 Reauthorization of the IDEA to include language about circumstances where the parents, or their attorney, were using the Due Process Hearing processes for improper purposes, such as to “harass, to cause unnecessary delay, or to needlessly increase the cost of litigation.”  School district fees can also be charged to the parents’ attorney (not the parent) if a complaint is filed that is “frivolous, unreasonable, or without foundation” or if such a case becomes so and is continued to be litigated.  In such cases, a judge (as opposed to a Hearing Officer) has the discretion to award attorneys’ fees to the school district.  20 USC 1415

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The notion that the 2004 IDEA created a “loser pays fees” rule is false, misleading, and intentionally deceptive.

Here are some things you need to know about this before you allow yourself to become intimidated:

  • the cases which meet this very rigorous standard are extremely rare.  In fact, since this language was included in 2004, I can think of under ten cases in the whole country which have ordered parents or their attorneys to pay the school’s lawyer’s fees.  This is out of thousands of Due Process Hearings filed annually (in Connecticut alone, several hundred hearings are brought each year).
  • Simply having a different interpretation of the case-law, or a good-faith disagreement about a child’s program would not justify a school district getting their fees paid, even if your relationship with them is incredibly acrimonious.
  • Most parents’ attorneys will not take cases which they believe are merit-less or frivolous, and therefore, if you have consulted with a number of parent’s attorneys who say you have no case, you should probably think long and hard about filing dozens of complaints.  It is this excessive use of the complaint system which seems to have been triggering the few findings out there in the school district’s favor.

Misperceptions of what the IDEA states on attorney’s fees are being intentionally perpetuated.

When the IDEA 2004 was first released with the new language, I was really infuriated, because the improper purposes described are no different really from those rules to which all attorneys are already subjected in our Federal Rules of Civil Procedure.  You can’t just go around filing lawsuits against people for fun, without any real case or controversy, and you can be sanctioned by the Court if you do so; this has been the law for years!  So, why include this language in the IDEA if it’s already covered by other rules?

In my opinion, this provision of the statute serves a purpose of intimidating parents, and parent attorneys, and hopes that they will be “chilled” from zealous advocacy.

This is why so many parents are being told by their administrators at the end of IEP meetings which don’t reach consensus:  “you can, of course, pursue your Due Process rights, but, since I like you, I feel I must let you know that if you lose, you’ll have to pay our lawyers’ fees,” and other inaccurate and misleading statements like it.  The obvious goal of this language was to make parents, and the attorneys who handle special education matters on their behalf, think twice, or three times, before taking on tough cases against a district which will fight back, even when those cases have merit.

I can only speak for myself, but so far, it hasn’t worked.

And yet, lawsuits are being brought by districts under this section, and some are being won by them.  Perhaps this is something parents should consider organizing against when the IDEA is Reauthorized in 2010.  Until then, I will continue to turn away cases which have no legal basis, as I did well before IDEA 2004, just as I will vigorously fight legitimate claims, even in the face of strong resistance.  And I will tell as many parents as I can, as often as I can, that the IDEA does not say that if a parent loses their cases, they have to pay the school’s fees.  There are enough special education myths out there, let’s not let this one take root.

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