Guy’s Log 2017

April *

April 4, 2917

Avila v. Spokane School District 81, Ninth Circuit  March 30, 2017
Key Words:  Statute of Limitations
Decided for:  The parents, sort of . . .

Cutting to the chase, the parents had two substantive claims (what they were isn’t important here) that were denied because the district court said the statute of limitations had run out and their claims were time barred.   The Ninth Circuit, on appeal, decided that the statute of limitations didn’t begin until the parents knew or should have known that whatever it was they were complaining about had occurred.   So the Ninth, in its wisdom, remanded the case back to the District Court to determine when the parents knew or should have known whatever it was they were suing about in order to decide whether they could make their case or whether their claims were still time barred.   All the parents won in this decision was the right to ask the District Court judge (again) to grant them the right to sue the school system since he had incorrectly interpreted the federal statute of limitations previously.  (Not that his error rose to the level of malfeasance; the federal language was far from being crystal clear.)

The relevant legal language from the decision:

We first conclude that Congress did not intend the IDEA’s statute of limitations to be governed by a strict occurrence rule. Both § 1415(b)(6)(B) and § 1415(f)(3)(C) include language pegging the limitations period to the date on which the parent or agency “knew or should have known about the alleged action that forms the basis of the complaint,” not the date on which the action occurred. See § 1415(b)(6)(B), (f)(3)(C). If Congress intended a strict occurrence rule, there would have been no need to include the “knew or should have known” language in § 1415(b)(6)(B) and § 1415(f)(3)(C).

and
Because the district court barred the Avilas’ pre-April 2008 claims based on when the District’s actions occurred, AVILA V. SPOKANE SCH. DIST. 81 19 we remand to the district court to make findings and address the statute of limitations under the standard we adopt here, namely when the Avilas “knew or should have known about the alleged action[s] that form[] the basis of the complaint.” See § 1415(f)(3)(C).

March, 2017 *

March 22, 2017.

Endrew F. v. Douglas County School District, Supreme Court, March 22, 2017.  A landmark case adopting a definition of FAPE requiring more than de minibus benefit for our children with disabilities.   A link to the decision itself is provided above.   A copy of a letter sent to North Carolina school psychologists follows providing an initial summary of the decision.  Several additional links are already on-line explaining the implications of this new decision, and many more are sure to follow.   This case will amost certainly be cited in every FAPE case under the IDEA for the next thirty or forty years.

NoED “The Supreme Court Rules in Favor of a Special Education Student

 

Public Schools of North Carolina

SUPREME COURT RULING: Court rejects ‘merely more than de minimis’ standard of FAPE — In a unanimous decision, the U.S. Supreme Court rejects the “merely more than de minimis” standard of FAPE first advanced by U.S. Supreme Court nominee Neil Gorsuch and adopted by the 10th U.S. Circuit Court of Appeals. Endrew F. v. Douglas County Sch. Dist. RE-1, No. 15-827 (U.S. 03/22/17).

BELOW IS A SUMMARY OF THE CASE AND THE DECISION – THIS REQUIRES THE ATTENTION OF ALL PROFESSIONALS WHO WORK WITH STUDENTS WITH IEPS:

The U.S. Supreme Court on Wednesday bolstered the rights of learning-disabled students by requiring public school districts to ensure their special education programs offer these children more than the bare minimum of instruction.

The case, Endrew F. v. Douglas County School District, was an appeal from two Colorado parents who want their school district to reimburse them for the cost of their autistic son’s private school.

The justice’s unanimous decision resolves a split among federal appeals courts over the standards schools must meet under the federal Individuals with Disabilities Education Act.

The parents, identified as “Joseph F.” and “Jennifer F.” in court documents, enrolled their son, Endrew, in private school for fifth grade after he had a difficult year in public school in the fourth grade.

They said the Douglas County School District failed meet the needs of their son, who frequently exhibited behavioral issues, and as a result, he made little progress in class.

Joseph and Jennifer said the private school was better able to meet their son’s needs, but the district balked at shouldering the costs.

The parents filed a complaint with the Office of Administrative Courts. “The IDEA seeks to provide children with genuine access to public education,” they argued. “School districts that provide only a just-above-trivial benefit cannot achieve this objective.”

The Office of Administrative Courts did not agree, and in September 20154, U.S. District Judge Lewis Babcock affirmed its decision.

The case then moved to the 10th Circuit, which said the school district need only provide “some educational benefit.”

In their petition for a writ of certiorari, Endrew’s parents said that standard simply doesn’t meet the Disabilities Education Act’s goals.

The Obama administration later joined the parents in urging the High Court to adopt the standard the parents are seeking.

The school district argued against Supreme Court review, said the decision to impose the higher standard the parents are seeking should be made by the state legislature, not the courts.

Prior to Wednesday’s ruling, the Supreme Court had last offered its interpretation of what was meant by the phrase “free appropriate public education” 34 years ago in Board of Ed. of Hendrick Hudson Central School Dist., Westchester Cty. v. Rowley, but lower courts disagreed on how the 1982 ruling should be interpreted.

In his ruling, Chief Justice John Roberts noted that in deciding Rowley, the justices declined to endorse any one standard for determining “when handicapped children are receiving sufficient educational benefits to satisfy the requirements of the Act.”

That, he said, opened the door to revisiting the issue and to Wednesday’s unanimous conclusion.

“When all is said and done, a student offered an educational program providing ‘merely more than de minimis’ progress from year to year can hardly be said to have been offered an education at all,” Roberts wrote. “For children with disabilities, receiving instruction that aims so low would be tantamount to ‘sitting idly … awaiting the time when they were old enough to ‘drop out.’ The IDEA demands more. It requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.”

Roberts said at this juncture the court would “not attempt to elaborate on what ‘appropriate’ progress will look like from case to case.”

“It is in the nature of the Act and the standard we adopt to resist such an effort: The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created,” Roberts said, adding, “This absence of a bright-line rule, however, should not be mistaken for ‘an invitation to the courts to substitute their own notions of sound educational policy for those of the school authorities which they review.’”

 

March 21, 2017.

J.M. v Francis Howell School District, March 7, 2017 Eastern District Court, Missouri
Key Words: Exhaustion of administrative remedies
Decided for: the school system

Last month, I reported on Fry v. Napoleon Cmty. School, a Supreme Court case that provided lower courts with a new test to determine whether or not a case was about FAPE (requiring exhaustion under the IDEA) or not about FAPE.   J.M. is one of the first cases to apply that test in arriving at a decision.  The parents were seeking relief not available under the IDEA, but this court cited precedent wherein the court found that exhausting remedies would have allowed “the agency to develop the record for judicial review and apply its expertise” to the plaintiff’s “claims to the extent those claims are related to implementation” of the IEP.

Decision:  McCauley contends the administrative process cannot provide adequate relief, compensatory and punitive damages. As discussed, this argument is without merit. See J.B., 721 F.3d at 595 (“[T]he IDEA’s exhaustion requirement remainsthe general rule, regardless of whether the administrative process offers the particular type of relief that is being sought.”). The district court properly dismissed the complaint for failure to exhaust administrative remedies.

Reyes v. Manor Independent School District, Fifth Circuit, March 7, 2017  
Key Words:  Exhaustion of administratve remedies, time lines
Decided for:  the school system

Again, an early application of the Supreme Court test for exhaustion of benefits, and, again, a loss for the parents.

Decision:  We ask two questions. First, could the plaintiff have brought the same claim if the alleged conduct had occurred at a public facility that was not a school? Second, could a non-student at the school have brought the same claim? Id. at *12. If the answers to both questions are no, the Rehabilitation Act claims overlap with the IDEA claims and must be administratively exhausted. That is the case here, as all of E.M.’s claims are directly related to the education he received while attending the District’s school.

Otsby v. Manhatten School District, Seventh Circuit, March 16, 2017
Key Words:  Prevailing Party, Moot
Decided for:  The school system, mostly

An odd case.  The courts, both district and circuit, dismissed the parents case as “moot” because they had resolved the matter.  The parents wanted attorneys’ fees.  But attorney fees are only available if the parents get what they wanted as a result of a hearing officer’s or judge’s decision.   In this case, the relief they sought was obtained through informal relief.   They did get $3126.10 for a private independent educational evaluation.  But they’d already gotten that from the district court judge.   I’ve included a link to the case, but reading through it would probably be as much a waste of time as pursuing this case through the federal court system turned  out to be.  Of course, reviewing the decision wouldn’t cost you anything.  Getting a panel of federal court judges to review the facts of this case was far from free.   Sometimes it seems like some people have way too much time and money on their hands.

 

 

February, 2017 *

February 25, 2017

Fry v. Napolean Community Schools, United States Supreme Court, February 22, 2017

Key Words:  Exhaustion of administrative remedies, ADA, service animals
Decided for:  The parents — sort of

The child in this case suffered from cerebral palsy.  His doctor prescribed a service dog (named Wonder) to help him with various tasks.  The school said he couldn’t have his dog in kindergarten because an assistant could everything that the dog could do.  The parents put the child in a different school (which welcomed the dog) and sued.   The school was arguing that the case should have been dismissed because the parents had failed to exhaust all of the administrative remedies available under the IDEA  (usually a winner.)  However, the Supreme Court ruled that the relief sought only required exhaustion of administrative remedies under the IDEA if the plaintiffs were alleging a denial of FAPE.  In this case, however, the parents were alleging discrimination based upon disability.  Deciding whether or not the school’s argument held water, the Court said, could be resolved with the following test:

One clue to the gravamen of a complaint can come from asking a pair of hypothetical questions. First, could the plaintiff have brought essentially the same claim if the alleged conduct had occurred at a public facility that was not a school? Second, could an adult at the school have pressed essentially the same grievance? When the answer to those questions is yes, a complaint that does not expressly allege the denial of a FAPE is also unlikely to be truly about that subject. But when the answer is no, then the complaint probably does concern a FAPE. A further sign of the gravamen of a suit can emerge from the history of the proceedings. Prior pursuit of the IDEA’s administrative remedies may provide strong evidence that the substance of a plaintiff’s claim concerns the denial of a FAPE, even if the complaint never explicitly uses that term.”

The Supreme remanded the case back to the Court of Appeals but did not specifically conclude that the parents’ complaint met that test.  The court said that the record was “murky” as to whether or not the parents had ever actually started down the due process “road” provided under the IDEA.  If they had, the Court said, paraphrasing, it might very well be a FAPE case — which would require exhaustion of administrative remedies.  Regardless, the kid got to have his dog.  And we got a new “test.”  For Justia’s Summary of this case, click here.

M. v. Falmouth School Department 16, January 27, 2017, First Circuit
Key Words: FAPE, IEP
Published:  Yes
Decided for:  The school system

This 20 page decision was over a relatively simple point of law.  The parent said that the school had promised to provide her daughter with the SPIRE reading program.  It apparently was discussed.  But it didn’t end up in the child’s IEP.  Since it was not in the IEP, the district could not have violated the IEP.  Since there were no other issues, the Circuit Court reversed the district court decision and ruled in favor of the school district.   Two points.   First, nothing in the iDEA prevents an IEP team from addressing methodology in the IEP.   Second, if it’s not in writing, it didn’t happen.  Or in the words of the First Circuit, “Since we hold that O.M.’s IEP did not specify that she was to receive SPIRE instruction during her third-grade year, and because Ms. M. does not contend that Falmouth violated her daughter’s IEP in any other way, it necessarily follows that Falmouth did not breach the IEP’s terms and thus did not violate O.M.’s right to a FAPE. Accordingly, we REVERSE the district court’s determination that Falmouth violated O.M.’s IEP and VACATE the accompanying damages award. Each party shall bear its own costs.”

Issa v. Lancaster School District, January 30, 2017, Third Circuit
Key Words:  ESL
Published:  Yes
Decided for:  The students

Not a special education case.   Still illustrative of a basic principle when addressing the needs of ESL students.  OCR guidelines are relatively flexible,  requiring (paraphrasing) that the school use an approach that is informed by an educational theory recognized as sound by some experts in the field.  (Also see Castaneda v. Pickard.)  The students in question were school aged refugees facing language barriers.  They fled war, violence, and persecution in their native countries to come to the United States.  Lancaster had two high schools, one for advanced students.  Which is where they put these students.  The students did not believe it was a good match.  The circuit court, summarizing the district court’s opinion, said “School-age refugees facing language barriers asked the District Court for a preliminary injunction compelling the School District of Lancaster to allow them to transfer from Phoenix Academy, an accelerated credit-recovery high school, to McCaskey High School’s International School, a program designed principally to teach language skills to English language learners, or ELLs. The District Court granted that request, finding likely violations of Pennsylvania law and a provision of a federal statute we’ve never addressed—the Equal Educational Opportunities Act of 1974 (EEOA), 20 U.S.C. § 1703(f).”  In their 46 page decision, the circuit court affirmed the district court’s decision.  In short, both courts believed that school’s proposal was not informed by an educational theory recognized as sound by some experts in the field.

J.J.E. v. Independent Schl. Dist. 279, January 17, 2017 Minnesota Court of Appeals
Key Words;  IEP, FAPE, home instruction
Published:  No
Decided for:  The school system

The child in this case had been getting in home instruction from his previous school system for five hours a week.  The new school provided an IEP that would provide him with instruction five days a week in public school.   After mediation, the school offered shortened school days, and the parent agreed.   Subsequent to that, she went to due process, alleging tht her rights had been violated, and that the school’s IEP would fail to provide FAPE.   The ALJ found that since the mother had agreed in writing to the mediation agreement her rights had NOT been violated and found further that the school’s proposed IEP was reasonably calculated to provide him with more than trivial benefit (FAPE).   This court affirmed that decision.

Board of Education Albuquerque Public Schools v. Rolanda Maez and Richard Mondragon, January 18, 2017, District Court of Appeals, New Mexico
Key Words:  Stay and set aside order, compensatory education
Published:  Yes
Decided for:  The school system

This was a case involving a relative minor issue.  The hearing officer in this case had awarded the parents 40 hours of therapy which they assumed would be provided by a private therapist outside the school system.  The school asked the court to stay that order.   The court agreed that the school system, which was offering to provide those services in school, would suffer irreparable harm if they won on appeal because they could never get reimbursed for the private therapy.  And since they were going to provide the services at public expense in school anyway, the child would suffer no harm from the injunction.  The judge concluded, “In sum, the Court finds and concludes that Plaintiff has satisfied the requirements for injunctive relief. The Court also finds and concludes that it is appropriate to issue a stay on the DPHO’s Final Decision which modifies the DPHO’s ruling regarding the provision of an additional 40 hours of SLT; namely that during the pendency of this lawsuit, the additional 40 hours shall be provided by APS therapists. See 20 U.S.C. §1415(i)(2)(B)(iii) (district court empowered to “grant such relief as the court determines is appropriate”). ”

January 2017 *

January 18, 2017

 Endrew v. Douglas County, Supreme Court, 2017, Undecided.  This case has been described as the most important special education case since Rowley in 1982.  Typically, I do not report on arguments, because arguments have no precedential value whatsoever until or unless a court, in effect, ratifies that argument through a judicial decision.  Endrew v. Douglas is basically an argument over the definition of FAPE.   Regardless of how the Supreme Court rules, it’s never over until the fat lady sings, and even if the plaintiffs win on legal grounds, their case will undoubtedly be remanded back to the original judge.  Even if a new standard is handed down by  the Supreme Court (which could in present circumstances end in a tie), that doesn’t necessarily mean the parents will be victorious.  The district court judge could, as in Forest Grove v. T.A., apply the “new” standard . . . and still come to the same conclusion (victory for the school system.)  In short, this is a case worth watching, but it would be premature to anticipate or predict how the SC will actually rule.  If, Gentle Reader, you want more information, Google the case.

Moving on . . .

A.M. v. New York Department of Education, Second Circuit, January 10, 2017 (38 pp.)
Key Words:  IEP, FAPE, Procedural Error, ABA, Tuition Reimbursement
Decided for:  The parent in part, the school in part
Published: Yes

The parents of an autistic son had sued NYC for tuition reimbursement, alleging that the school system had failed to provide their son with an IEP reasonably calculated to provide him with non trivial benefit and accusing them of fatal procedural violations.  The district court judge had ruled against the parents on both counts.

The subject of this lawsuit was a six year old diagnosed with autism.  Long story short, the school system offered an IEP that would have provided the child with a 6:1:1 student/teacher/paraprofessonal ratio.  The parent wanted ABA written into the IEP.  The IEP team, however, declined, and the IEP team did not address methodology in the IEP.   Whereas the district court judge didn’t find that terribly upsetting, the circuit court found that flaw to be fatal.  (Note:  In cases where the dispute is over the amount of service, where schools have offered SOME ABA, courts have been more sympathetic.  It also helps to keep data documenting the effectiveness of the methodology.)  It wasn’t the only deficiency alleged  by the parent.  The IEP included a BIP but the school had not conducted its FBA, it did not include support or training for the parents, and it did not provide for any transitional support services.   The court found the FBA/BIP prepared by the school system using existing data to be flawed but not fatally flawed . . . that is, procedurally, the district was not in compliance, but the lack of an appropriate FBA/BIP does not in and of itself mean that the IEP isn’t reasonably calculated to provide benefit.  The court also agreed that the school’s failure to provide counseling/training to the parents was a serious violation but again ruled that that in and of itself didn’t mean that the IEP itself was fatally flawed.  (I’m paraphrasing).  What saved the district (this is New York, remember) was that they offered parental counseling and the parents were aware of it.   Failure to include it in the IEP was therefore deemed to be “an immaterial procedural violation.”  (Procedural violations that don’t deny a child FAPE, e.g., a minor time line violation, will not be fatal to a school’s case.)  Transitional services for children with autism moving from one setting to another are required by NY state law, which illustrates why it’s important to bear in mind that states can and do impose additional burdens on their school systems that may be considered by the courts.   Here, however, once again, the parents failed to make a clear violation of law “stick” because they failed to show that this violation resulted in their child not receiving FAPE.   Having ruled that all these procedural violations, even taken cumulatively, had not denied the student FAPE,  the circuit court reviewed the previous services the child had received vs. the services being offered, The court concluded in part, “While a private school’s preferred methodology does not bind the CSE in formulating a student’s IEP, where, as here, the consensus of the evaluative materials and ‘all witnesses familiar with [the child],’ C.F., 746 F.3d at 81, specifically recommend the continued need for 1:1 ABA therapy and support for the child to progress, and the DOE does not point to any evidence sufficient to counter these opinions and recommendations, the CSE was bound, at a minimum, to require some level of ABA support in a 1:1 classroom setting in order to establish the adequacy of the IEP. See id. (‘The IEP’s substantive inadequacy, therefore, is rooted in the testimony and reports indicating that [the child’s] behavioral needs required a 1:1 placement.’); see also R.E., 694 F.3d at 194.”   For a variety of reasons I will not enumerate here, the court remanded the case back to the district court “for further proceedings consistent with this opinion.”

For the “short form” summary, see Justia’s Summary below:

Plaintiff, on behalf of herself and her autistic son, filed suit under the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. 1400 et seq., against the DOE, seeking tuition reimbursement and claiming procedural and substantive violations of the IDEA. The district court affirmed the denial of relief. The court concluded that there were no procedural violations of the IDEA. However, the court concluded that plaintiff’s son was denied a free and appropriate education (FAPE) because there were significant deficiencies rendering the individualized education program (IEP) inadequate. Accordingly, the court vacated and remanded for further proceedings.

Guy, SP, Retired

January 17, 2017

Smith v. Meeks, District Court of Illinois, December 5, 2016
Key Words:  Definition of Parent, Non custodial parents’ rights
Decided for:  The defendants

A non custodial parent brought suit against both the Illinois State Board of Education as well as several board members of the Crete-Monee School System.

This case was never actually tried on its merits, and it has limited precedential value because it was ultimately decided based on Illinois state law regarding the rights of non custodial parents to make educational decisions for their child.  (If you work in Illinois, of course, this case DOES carry precedential value.)  Basically what the court decided was that in Illinois, getting visitation rights gives you the right to access your child’s educational records, but it does NOT give you the right to make educational decisions for your child.  Under Illinois law, the custodial parent has the right to make educational decisions, unless the court order dictates otherwise.

(“Except as otherwise agreed by the parties in writing at the time of the custody judgment or as otherwise ordered by the court, the custodian may determine the child’s upbringing , including but not limited to, his education , health care and religious training.”).

This case would have gone to trial if the parent did in fact have joint custody of the child.  But despite alleging that she did have joint custody,  the mother could provide no evidence supporting her claim.

If a divorced parent with whom a child is not living brings suit against your school system under the IDEA or Section 504, obviously this case does suggest it would be prudent (1) to request a copy of the court order giving her/him joint custody and (2) having your board attorney check state law on the rights of non custodial parents if the court decree only gives him/her visitation rights.  In the meantime, it never hurts to be courteous, and the non custodial parent should always  be allowed to at least see the child’s records.

Guy, SP, Retired

LRP’s Summary:

Visitation order doesn’t allow mom to participate in educational decisions

The biological mother of a student with ADHD could not pursue an IDEA claim against an Illinois district that allegedly failed to recognize her son’s need for an IEP as opposed to a Section 504 plan. Holding that the mother did not have the right to make decisions about the student’s educational services, the U.S. District Court, Northern District of Illinois granted the district’s motion to dismiss. Smith v. Meeks, 69 IDELR 29 (N.D. Ill. 2016).

Genn v. New Haven Board of Education, November 30, 2016, D. Connecticut
Key Words:  Other Health Impaired, IEE
Decided for:  The parent in part, the school in part

This case represented the last in a series of hearings brought by the parent against the school system over a period of years.  The student in question was at the time of this last hearing over the age of 21.

She had suffered from multiple health problems, causing her to miss a great deal of her school.   The situation between parent and school authorities had turned adversarial from almost the very beginning.   Both sides variously took positions that clearly angered the other side.   Parents will oft times advocate vigorously for their children, bringing them into conflict with school authorities with limited resources who are charged with meeting the needs of all their children.   New Haven may have met most of its obligations under the IDEA with respect to providing the child with FAPE, clearly it was nowhere near as successful in developing a collaborative relationship with the mother of a very fragile and very needy chld.

The parent was asking this judge to overrule a hearing officer, who had found for the school system.   The judge in this decision found no reason to overturn the hearing officer’s decision with respect to compensatory education.   However, the parent prevailed on a relatively minor issue.   She had requested an IEE in reading because the reading tests administered by the school did not address phonetic issues.   The school refused.   It did provide an IEP addressing reading, and the school’s records reportedly showed that the girl had made progress in reading skill development.

What this judge found, however, was that the school system had erred in declining the parent request for an IEE without convening a due process hearing as required by the federal regulations.   So it awarded the parent the cost of the IEE she had had completed.   The judged concluded the hearing officer erred when concluding that the parent had not disagreed with the school’s evaluation (a prerequisite for obtaining an IEE at school system.)   The real problem for the school system, not resolved in this decision, was that as prevailing party the parent was entitled to at least partial compensation for her attorney fees.   The burden on the parent was to provide the court with documentation of the time her attorney spent in preparing for and trying that issue.  Assuming her attorney met that burden, the cost to the school would have been considerably higher if she also had prevailed on all the issues; but still a lot more expensive than it would have been had the school paid for the reading assessment from the gitgo.   Sometimes seemingly minor procedural flaws do not turn out to be so minor.

Guy M. McBride, SP, Retired

The judge’s conclusion

For the foregoing reasons, the Plaintiff’s Motion for Summary Judgment [Doc. 36] is GRANTED in part and DENIED in part.

Defendants’ Motion for Summary Judgment [Doc. 37] is GRANTED in part and DENIED in part.

As a result of the foregoing, the IHO’s decision is REVERSED in part, and Defendants are ordered to reimburse Plaintiff for the costs of the independent educational evaluation performed by Dr. Cherkes-Julkowski.

Plaintiff’s present submission does not include an itemized statement of costs and attorneys’ fees for which Plaintiff claims reimbursement and this Ruling awards in part. Accordingly, a judgment cannot be entered and this case closed at this time. If the Plaintiff desires to press claims for costs and fees, she must file supporting papers not later than they must do so no later than December 21, 2016. Plaintiff is reminded that the claim for attorneys’ fees must comply with the Second Circuit’s decision in New York Ass’n of Retarded Children v. Carey, 711 F.2d 1136, 1148 (2d Cir. 1983), which requires that the documentation include “for each attorney, the date, the hours expended, and the nature of the work done.” Plaintiff should also note that the Court is required to conduct a “‘lodestar’ analysis, which calculates reasonable attorneys’ fees by multiplying the reasonable hours expended on the action by a reasonable hourly rate.” Kroshnyi v. U.S. Pack Courier Servs., Inc., 771 F.3d 93, 108 (2d Cir. 2014).

Defendants are entitled to oppose the claims for costs and fees, in whole or in part. Any opposition must be filed within fourteen (14) calendar days of the service of Plaintiff’s claim upon them.

Cobb County School District v. D.B. , 11th Circuit, November 14 2016
Key Words:  Attorney fees
Published:  No
Decided for: The parents

This is a three page decision, reversing a district court’s decision to substantially reduce attorney fees for a parent who had prevailed in sped controversy.

Section 300.517 of the 2006 FR provides that attorneys’ fees may be reduced if the court finds that the parent or a parent attorney “unreasonably protracted the resolution of this controversy.”

The district court judge reduced the parents’ claim for attorney fees by about $196 thousand dollars based on the principle above.  However, the district court  judge ALSO found that the school system had been guilty of the same thing.   The judge approved an award of only $75,000.

The 11th Circuit said that nothing in the law allows for the reduction of fees when the school system unreasonably protracts the resolution of a controversy.   The 11th also concluded that the district court judge had no adequately documented the reasons for such a substantial cut.    The court therefore concluded,

Therefore, we vacate the district court’s award of attorneys’ fees and costs, and we remand for the court to recalculate the award of “reasonable attorneys’ fees.” See 20 U.S.C. § 1415(i)(3); Hensley v. Eckerhart, 461 U.S. 424, 433–37, 103 S. Ct. 1933, 1939–41 (1983).2.”

Guy, SP, Retired