‘Reverse’ Fees Elusive in IDEA Disputes

Legal Brief

In the wake of a long-running dispute with a parent of a child with disabilities, which included a due process hearing decided against the parent and her various unsuccessful court appeals, a school district in Florida filed a motion seeking a federal court order for the parent and her attorney to reimburse the district for more than $600,000 in attorneys’ fees.

The district pointed to the failure of the parent and her attorney to fulfill their promise to produce additional evidence, their missed deadlines, and their incomplete filings to show that their litigation was frivolous and for the purpose of harrassment. In a separate action, the district moved for an award of attorneys’ fees for a parallel dispute concerning the stay-put provision under the Individuals with Disabilities Education Act, claiming that the parent and her attorney were again proceeding on grounds that were (1) “frivolous, unreasonable or without foundation” or (2) for an “improper purpose."

This sad story is not at all unique in the litigious world of special education. Contributing to the escalation of litigation under IDEA, its 1986 amendments authorized courts to award attorneys’ fees to prevailing parents. In response to alleged abuse by parents and their attorneys, the 2004 amendments to the IDEA provided courts with discretionary authorization in the reverse direction — to award attorneys’ fees to defendant districts in those two limited grounds.

For the first of the Florida school district’s requests, the court ruled in May 2014 in favor of the parent and her attorney, concluding that the district’s bare-bones claims were not sufficient to meet the stringent standards for reverse attorneys’ fees under IDEA. Eight months later, the second request also fell short. The court ruled that the district suffered from “hindsight bias” in relation to the alleged frivolousness and similarly failed to sufficiently establish improper purpose.

Unfavorable Tally

What has been the scorecard of reverse attorneys’ fees litigation under the IDEA nationwide since the 2004 amendments?

In a published analysis, I found 57 court decisions that contained rulings specific to reverse attorneys’ fees under IDEA, with an upward trend in the number of cases over the 12-year period. The leading jurisdictions were, in descending order, the Ninth Circuit, especially California; the D.C. Circuit; the Fifth Circuit, especially Texas; and the Second Circuit, especially New York. Most significantly, the school districts obtained notably limited success, obtaining partial recovery in 8 percent of the cases and full recovery in 7 percent of the cases. In other words, the odds are strongly against obtaining any recovery, with the costs of pursuing the matter amounting to an additional outlay for district’s counsel.

The overall take-away for school district leaders is to think thrice before seeking attorneys’ fees under IDEA. School board members ought to be cautioned as they deliberate such actions. What may well be perceived as frivolous or harassing parental proceedings, especially but not exclusively when the parent has legal counsel, may well not look the same way to a court, which is accustomed to ardent adversaries and escalating advocacy.

As with the converse issue of settlements, superintendents and boards must carefully consider various local factors, such as community perceptions, economic realities and the long-term relationship with the plaintiff parent. Reserve litigation for attorney’s fees for the truly exceptional, egregious case. And, as a federal appeals court suggested, be especially careful in pursuing the parents rather than their attorneys, even if they have legal representation, noting, “It’s … harder for a school district to collect attorney’s fees against parents than against their lawyers. Collecting against parents requires a showing of both frivolousness and an improper purpose, while collecting against their attorneys requires only a showing of frivolousness.”

Symbolic Action

Pursuing reverse attorney’s fees under IDEA is largely symbolic, especially given the pre-existing alternatives of such sanctions under other federal avenues. Unlike the wider federal highway for prevailing parents, the reverse IDEA attorney’s fees route is narrow, bumpy and mostly uphill.

Perry Zirkel is the University Professor Emeritus of Education and Law at Lehigh University in Bethlehem, Pa.