IDEA 2004 has brought many changes to special education law. School districts have used the new provision which allows attorneys’ fees shifting to parents in the event the due process is frivolous, abusive or brought for an improper purpose, to intimidate and chill due process filings. While this provision is new to IDEA, it tracks existing law from the Federal Code of Civil Procedure and other statutes. This body of law demonstrates that courts are reluctant to shift fees as a sanction and then only after the petitioning party (e.g. school district) has overcome significant hurdles.
Jess Butler, a Virginia special education attorney on behalf of parents, has recently posted an excellent review of the law at Wrightslaw regarding when courts will impose fee shifting because a case was frivolous, abusive or brought for an improper purpose. This review reveals the great difficulty a school district would face in the event that it attempted to have fees shifted to parents as a sanction. In my opinion, simply losing a case that was well grounded in law and fact would not be a basis for the school district to shift fees to the parents, and the above review of the case law supports this conclusion.
Parents and their attorneys need to diligently investigate the facts of
the case and the applicable law prior to bringing a due process;
presumably ethical parties do this as a matter of course. In my
opinion this provision was incorporated into IDEA 2004 based upon the
mythology that many due process cases have been filed for improper
purposes, to be abusive, or to be frivolous. I can state without any
doubt that as an attorney who represents many parents of children with
special needs, and as a parent of child with special needs, filing a
due process is a last resort necessity and not a matter of frivolity. Parents should not allow districts to use this
attorneys’ fees provision to deter them from filing well grounded due
process cases under IDEA 2004.