In keeping with my recent posts discussing attorney’s fees (see here, there, and over yonder), I will touch on District of Columbia v. Heller. This case seems to have gotten a few bloggers all riled up (see here, there, and over yonder).
This case is not an attorney’s fees case arising out of a special education matter. I’m going to deviate from the legal matters that I usually focus on this blog, but there is good reason: there is a lot to learn from this case.
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This is the third article about attorney’s fees and costs in special education matters. In the first article, I explained that a parent who prevails at a special education due process hearing may be entitled to reimbursement for attorney’s fees and costs. In the second article, I explained that a parent who litigates a frivolous lawsuit may be ordered to reimburse the school district for their attorney’s fees and costs.
There is one additional piece of information about attorney’s fees that parents should be aware of: even if a federal court orders that the parent reimburse attorney’s fees and costs to the school district, the fee award may be overturned on appeal.
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Several weeks ago, I talked about reimbursement for attorney’s fees and costs in special education matters. I explained that if a parent files a complaint for a due process hearing to litigate a special education matter–and the parent prevails–the school district may have to reimburse the parent attorney’s fees and costs.
This is a very important issue because if the parent prevails, she not only gets some or all of the remedies that she sought on behalf of her special needs child, but she also gets reimbursed for some or all of the legal expenses paid out of pocket.
Now, I want to talk about what could happen if the parent files a frivolous lawsuit.
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Quick: What’s the most important quality that a parent should protect and defend when there is a disagreement with school personnel about special education matters?
I’ll give you a hint: look at the title of this blog article.
Most parents who have experience attending IEP meetings understand that appropriate goals and objectives must be developed and incorporated into the child’s Individualized Educational Plan (“IEP”). Many parents also understand the importance of preparing for IEP meetings well in advance to ensure that the appropriate IEP goals and objectives are developed.
But children with disabilities are not the only ones who need appropriate goals and objectives. Parents must also have specific goals and objectives of their own as well. To the extent to which parents must deal with members of the IEP team and help develop goals and objectives and ensure that appropriate services and accommodations are provided to their child, parents have very specific goals and objectives of their own.
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Last week, a bus driver and a bus aide picked up a 4 year old child with disabilities in Jersey City, New Jersey, to be taken to an extended-year school program (“ESY”). But the child never arrived at school that day. Instead, the child was stuck on the bus at a bus storage yard. Both the bus drivers and the bus aide had “forgotten” the child. A bus mechanic discovered that the child was on the bus for four hours during the week’s heat wave when outside temperatures reached 100 degrees. (Temperatures inside vehicles can be much hotter than outside temperatures, and this can be fatal.)
Fortunately, the child was not harmed and was quickly released from the hospital. According to various report, both the bus driver and aide have been terminated and now face criminal charges.
Seriously, is it possible to “forget” that a child was on the bus? Bloggers and commenters are contemplating how this is possible — and criticizing both the bus driver and aide. See here and there.
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In special education litigation, “stay put” is among the most important safety procedural protections that parents have.
The stay put provision of the Individuals with Disabilities in Education Act (“IDEA”) says that a child shall remain in the “then-current educational placement.” What does this mean? Well, the best way to explain this is to look at two scenarios in which the stay put provision can apply:
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This is a story that made waves in the service dog and pet lovers community last month: A cab driver in Colorado was called to pick up a blind passenger accompanied by a seeing-eye service dog. The cab driver claimed that he was allergic to dogs and told the passenger to put the dog in the trunk of the car.
See bloggers and readers comment on this story here, there, and way over yonder.
As I have discussed on multiple occasions on this blog, the Americans with Disabilities Act protects the right of people with disabilities to be accompanied by their service dogs. (The U.S. Department of Justice has a nice summary here.) That being said, however, if a person’s allergy rises to the level of a disability, there seems to be a stalemate: whose rights reign supreme–the blind person or the cab driver? That is a question this story raises.
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Parents who have children with special needs often fall in two basic categories: those who can be objective and those who can’t. Parents who can’t be objective are those who get emotional about educational issues affecting their special needs child, take side swipes at school personnel, and make mistakes — very serious tactical mistakes — that can affect the parents’ credibility and harm their child’s education.
This is an unfortunate reality that I see from time to time in my practice. It is distressing to hear and meet parents who tried but failed to do the best for their special needs child by attempting to address the issues without retaining a lawyer. It is particularly painful to read a court opinion that says that the parent had failed to be cooperative and the court rules in favor of the school district on all issues.
Parents who are on an emotional roller coaster and cannot think like a lawyer are not in any condition to litigate special education issues on their own. Thinking like a lawyer means at least four things: (1) understanding the law, (2) knowing what course of action to take, (3) knowing when to take certain steps, and (4) understanding how to compromise.
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No discussion about special education litigation is complete without discussing whether it is possible to get reimbursement for attorney’s fees and costs.
Many parents with special needs children do not know that it is possible to get reimbursement for attorney’s fees and costs in connection with special education matters. When a special education issue is litigated, and the parents obtain some of the relief that they had sought, a court may declare the parents “prevailing party” and order that the school district pay attorney’s fees and costs to the parents.
For example, suppose that a parent requested an Independent Educational Evaluation (“IEE”) at district expense, but the school district refused to pay for the independent evaluation. If the parent retains a special education attorney, litigates the issue, and subsequently gets the independent evaluation at district expense, a federal or state court may declare the parent the “prevailing party” and award attorney’s fees and costs in connection for having litigated the matter.
This above example is exactly what happened in one of my cases, which was recently decided in a New Jersey federal court. In DI v. Phillipsburg Board of Education, the parent requested certain evaluations and independent evaluations. In response, the school district filed a petition for a due process hearing to challenge the request for the independent evaluations. Ultimately, the parent and school district reached a settlement whereby the school district would conduct or pay for three evaluations. Next, the parent sued the school district in federal court for attorney’s fees and costs in connection with the due process proceedings. A federal court in New Jersey determined that the parent was the prevailing party and ordered that the school district pay attorney’s fees and costs for both the due process proceeding and the fee application.
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On June 13, 2011, the U.S. Court of Appeals for the Third Circuit issued two very important decisions affecting student rights. In both cases, the students created a fake profile on a social networking site which cast an unfavorable light on the students’ school principals. The students created these profiles off-campus. In both cases, the school districts suspended the students for off-campus conduct. In both cases, the Third Circuit en banc court held that the school districts’ discipline violated the students’ First Amendment rights. Below are brief summaries of these two cases.
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