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By: Lily Crespo Esq.
This post identifies recent court decisions illustrating the IDEA issues of “stay-put” and “reverse” attorneys’ fees.
Stay Put–The act of filing the Due Process petition invokes a provision in the IDEA called “Stay Put” or “Pendency”. The “stay put” provision states that during the pendency of any due process proceedings, the child shall remain in the then-current educational placement. 20 U.S.C. § 1415 (j).
What happened: In its July 14, 2021 decision in E. v. Norris School District, the Ninth Circuit Court of Appeals addressed the IDEA issue of “stay-put” in the COVID-19 context. A few months prior to the pandemic, the parents of a first grader with autism filed for a due process hearing, claiming denial of FAPE. Soon thereafter, the IEP team issued a new IEP changing the placement of the child from a largely general education classroom in School A to a self-contained special education class in School B.
Ruling: The hearing officer ruled that the district materially failed to implement the prior IEP and commented that the proposed IEP at School B was the stay-put. Upon the parent’s request for a preliminary injunction, the federal district court ruled instead that the stay put was the mainstreamed classroom in school A. The school district appealed to the Ninth Circuit, contending that the hearing officer had applied the correct standard and, if not, that the parent’s challenge to the then current placement as a failure to provide FAPE should be a judicially public policy exception to the established approach to stay-put.
What the decision means for educators: The IDEA does not condition a child’s stay-put rights on his parents’ agreement with his last-implemented IEP. Unless the parents agree otherwise, a district within the 9th Circuit must maintain the placement and services identified in that IEP while the parents’ FAPE action is pending. This district correctly noted that an administrative law judge had deemed the child’s kindergarten IEP inappropriate based on its deficient annual goals and failure to address the child’s behavioral needs. However, neither those deficiencies nor the ALJ’s approval of the proposed IEP allowed the district to change the child’s placement to a special day class.
Reverse Attorneys’ Fees—Refers to fees awarded in the reverse direction (against plaintiffs). The 2004 amendments of the IDEA authorized attorney’s fees for the defendant local and state education agencies in more limited circumstances. More specifically, if as a threshold matter the defendant agency, which usually is a school district, qualifies as prevailing, these most recent amendments authorize a court to award attorney’s fees: (1) against the attorney of a parent who files a complaint or subsequent cause of action that is frivolous, unreasonable, or without foundation, or… who continued to litigate after the litigation clearly became frivolous, unreasonable, or without foundation; or…(2) against the attorney of a parent, or against the parent, if the parent’s complaint or subsequent cause of action was presented for any improper purpose, such as to harass, to cause unnecessary delay, or to needlessly increase the cost of litigation.
What happened: In Oskowis v. Sedona-Oak Creek School District (2021), the Ninth Circuit Court of Appeals addressed a parent’s challenge to the lower court’s costly adverse ruling under what is sometimes called the reverse attorneys’ fees provision of the IDEA.
Although since the 1986 amendments the IDEA has provided courts with the discretion to order the defendant education agency to pay the attorneys’ fees of “prevailing” parents, it was not until the 2004 amendments that Congress added a more limited provision in the opposite direction.
Relevant to this case, IDEA 2004 authorized courts to order the plaintiff parents or their attorney to pay the reasonable attorneys’ fees of the prevailing defendant education agencies if the parents’ complaint or ensuing litigation was for an improper purpose.
Ruling: Here, in the latest in a long series of filings against an Arizona district, the parent of a child with autism appealed to the court the dismissal of three successive due process complaints that hearing officers ruled as being frivolous. After the court consolidated and upheld these rulings, the defendant district filed a motion for attorneys’ fees against the parent, who had engaged in the hearing officer and court proceedings “pro se,” meaning without attorney representation.
Because the school district had unquestionably prevailed, the next criterion for determination, at least in the Ninth Circuit, was whether the claims were frivolous. Providing due allowance for novel or at least marginal claims, the lower court concluded that all of the parent’s latest claims were objectively and wholly without legal and factual foundation. The Ninth Circuit agreed via a summary affirmance.
The next criterion for the judicial determination was whether the claims were for an improper purpose, such as harassment or unnecessary delay. For this determination too, the test is objective, i.e., a reasonable person standard. Citing the persistent pattern of the parent’s 43 separate legal actions against the district, even though he prevailed in a few of them, the lower court concluded that these latest claims were for the improper purposes of harassing the district and needlessly increasing the litigation costs. The Ninth Circuit summarily affirmed.
The final question was whether the district’s request for $47.6k for attorneys’ fees was reasonable in relation to prevailing community rates and documented non-excessiveness. Finding a few time entries that were not sufficiently detailed, the lower court adjusted the total to $41.2k. The award, which the Ninth Circuit summarily affirmed, additionally included $557 of court costs in comparison to the district’s amended request of $574.
What the decision means for educators: Reverse attorneys’ fees awards are rare. Nevertheless, this provision in the IDEA raises serious policy questions that overlap with the availability and affordability of parent-side special education attorneys in various jurisdictions, the increasing ponderousness of the adjudicative process, and the choice of some parents to become frequent filers and/or to proceed pro se.
As you consider these and other issues, we recommend you speak with your school lawyer or contact Bea, Kevin, Megan, Beth, and Lily by email or at 406-542-1300 to discuss these issues.