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Parents Should Recover Attorneys Fees When Settle

Why this issue is critical: The impact of Buckhannon Board and Care Home, Inc. v. West Virginia Upon Parents of Children with Disabilities

The Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq. ("IDEA”), requires school districts to provide a free and appropriate public education to all children with disabilities. To that end, the IDEA creates extensive procedural safeguards to promote compliance, including the right to attorney's fees to parents who prevail in cases alleging the denial of an appropriate education. In Buckhannon Board and Care Home, Inc. v. West Va. Dep't of Health and Human Resources, 532 U.S. 598 (2001), the Supreme Court held that a plaintiff whose case is the catalyst for a voluntary change that provides the relief sought or who settles is not a "prevailing party” for purposes of civil rights attorney's fees provisions. Consequently, a District may force the parents to incur substantial legal fees to secure their child's educational rights only to avoid liability for those fees by later settling or simply providing the relief sought.

Downloadable Flyer: Buckhannon Board and Care Home, Inc. v. West Virginia

FAQ discussion points related to the Buckhannon decision

Q: What is the IDEA's attorney's fees provision and why is it important?

A: Under the IDEA, as is the case with many civil rights laws, a court may award "reasonable attorneys' fees” to a parent who is a "prevailing party” in due process or litigation. 20 U.S.C. § 1415(i)(3)(B)(i)(II). Parties prevail when they succeed on a "significant issue” that achieves some of the benefit they sought when they filed suit. Hensley v. Eckerhart, 461 U.S. 424 (1983). Attorney's fees provisions are important because they allow Plaintiffs who might not otherwise be able to afford legal counsel to enforce important statutory rights. By removing the ability of prevailing parties to obtain fees as it did Buckhannon further limited parents' already severely constrained ability to obtain lawyers to help them enforce their children's rights under the IDEA.

Q: Prior to Buckhannon, what was the law about recovering attorney's fees in civil rights cases like those under IDEA?

A: The vast majority of cases are resolved before they go to trial or hearing as parties negotiate agreements that provide relief or defendants voluntarily provide the relief sought. Before Buckhannon, most courts applied the "catalyst” theory. A plaintiff could recover attorney's fees if his or her case was the "catalyst” that caused the defendant to change its conduct. For example, assume a school district refused to provide a deaf child with a sign language interpreter, and the parents were forced to file for due process. The parents and their lawyer then spent a great deal of time preparing the case. If, because the parents pursued the litigation, the school district provided the interpreter under the catalyst theory, the parents were considered "prevailing parties.” Similarly, if the school district settled and agreed to provide the interpreter, parents were considered the prevailing parties and could recover their attorney's fees.

Q: What was the rule for attorney's fees stated in Buckhannon?

A: Before Buckhannon, plaintiffs could recover attorneys fees if their lawsuit was the catalyst that caused the defendant to provide a remedy. But in Buckhannon, the Supreme Court held that a plaintiff can recover attorney's fees only if he or she achieves a judicially-approved change in the relationship between the parties. In other words, the court must enter a judgment in the plaintiff's favor or sign a consent decree that requires defendant to provide the relief sought. Without this "judicial imprimatur,” plaintiffs such as IDEA parents are not entitled to attorney's fees, even if the school district agrees to provide or has provided everything the parents sought. As most IDEA cases end with private settlement agreements and many hearing officers and Administrative Law Judges refuse to sign consent decrees when parties settle after Buckhannon parents in these cases who have prevailed in the pre-Buckhannon and common sense meaning of the word cannot obtain attorneys' fees from the school district.

Q: How does Buckhannon harm children with disabilities and their parents?

A: Generally parents require assistance of an attorney in order to effectively pursue a due process hearing. A study of hearings in Illinois from 1997-2002 determined that parents win about 50% of hearings when represented by an attorney, but win only 17% of hearings if they are not represented by an attorney . The cost burdens for parents in litigating an IDEA case with counsel are substantial. When these cases settle, however, parents are left with the tremendous burden of paying attorneys fees.

Q: What is an example of a Buckhannon case?

A: In one Massachusetts case, a young child with cerebral palsy faced severe learning issues the school district could not meet. The family went to a hearing to place the child in a private school program she needed. The district drove the parents' attorneys' fees up by repeatedly asking them to provide documents, attempting to prevent experts from observing the program, and other means. The mother's settlement offers were rebuffed. The young child was forced to testify for half an hour using a communications device and was cross-examined by the school district for two hours. The next day, the district offered to settle and place the child in the requested private program. The parents had to pay all of their attorneys' fees and costs for the hearing. Even though they "prevailed” in their settlement, and got all that they requested, they could not recover attorneys fees from the school district. Few parents can afford to pay such expenses out of pocket.

Q: Are there bills in Congress that address Buckhannon? What is COPAA's position?

A: In the 2009 Congress, identical bills were introduced in the United States House of Representatives and United States Senate that would have overturned Buckhannon. The bills were introduced by Senator Kennedy and Congressman John Lewis, and are likely to be re-introduced in the current Congress. COPAA has consistently sought and supported a Buckhannon override. COPAA strongly supports introducton of a Civil Rights Act, which would override Buckhannon and also override the Supreme Court's decision in Arlington Cent. Sch. Dist. v. Murphy, which prevents parents from recovering their expert witness fees, an expense few can afford.

Q: Where can I find a copy of Buckhannon?

A: The citation for Buckhannon Board and Care Home, Inc. v. W. Va. Dep't of Health and Human Resources is 532 U.S. 598 (2001). It is available on many internet websites, including that of the Cornell Law School Library, at http://www.law.cornell.edu/supct/html/99-1848.ZS.html

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