The Availability of Attorneys’ Fees in Educational Disputes
By Michael Gehring, Esq.
McAndrews Law Offices, P.C.
It is well known that, in most cases, filing or defending against a lawsuit can be quite expensive. In the United States, most courts follow the “American Rule” regarding attorneys’ fees, that is, each party to a lawsuit, unless an exception applies, pays its own attorneys’ fees.
However, there is an exception to this rule when a dispute involves the rights of a disabled student. Both the Individuals with Disabilities Education Act, or IDEA, and Section 504 of the Rehabilitation Act of 1973, require school districts to provide eligible disabled students with a Free Appropriate Public Education, or FAPE. If the school district does not provide the student with a FAPE, or commits some other violation of IDEA or Section 504, the parents of a disabled student can bring a due process complaint against the school district in order to obtain relief for the school district’s violation. Both IDEA and Section 504 are what are called “remedial” statutes, in that they are designed to provide disabled students with certain rights, and also to provide a legal process for vindicating those rights. To make it easier for families to file suit under IDEA or Section 504, Congress included “fee-shifting” provisions in both statutes. These provisions allow parents, when they are “prevailing parties” in a dispute under IDEA or Section 504, to force the school district to pay all or part of the parents’ attorneys’ fees. This accomplishes several things: (1) it makes it potentially less expensive for parents to use the services of an attorney to bring a due process complaint against a school district; and (2) it gives school districts an incentive to settle the case, because they know that if they lose in a hearing, they will not only have to pay their own attorney, but also the parents’ attorney. Indeed, in claims under Section 504, a school district may even have to pay the cost for the parents’ expert to testify.
There are clear advantages for parents to use the services of an attorney to bring a claim under IDEA or Section 504. The relevant law and procedures can be complex and difficult to navigate for parents. School districts in due process proceedings are almost always represented by an attorney, so parents who do not use an attorney will usually be at a disadvantage in terms of both the law and the procedures involved in a due process hearing. An attorney can help parents assess the strengths and weaknesses of a claim, and to bring and litigate a claim that has the best chance of succeeding. An attorney will likely be better able to seek and obtain from a school district all of the relevant documents concerning a student. An attorney can also help parents negotiate and obtain a favorable settlement of a claim. Moreover, when a school district knows that parents are not represented by an attorney, it knows it will not have to pay the parents’ attorneys’ fees if the parents prevail at the hearing (because there will be no fees), which gives the school district less of an incentive to settle a case. Finally, even if parents prevail at a due process hearing without counsel, the school district can still appeal the result to federal court, where, due to the complexity of the relevant federal rules, parents not represented by counsel will be even more at a disadvantage than in a due process proceeding.
Luckily for parents, because of the availability of attorneys’ fees in a due process proceeding, there is little reason to go through a due process proceeding without an attorney. McAndrews Law Offices will, for instance, in many cases, be able to represent parents in a dispute with a school district without seeking any direct payment of attorneys’ fees from the parents. Rather, McAndrews Law Offices will agree in appropriate cases to seek their hourly attorneys’ fees not from the parents, but from the school district itself, and/or from a portion of any recovery obtained on behalf of a disabled student. With such an arrangement, families do not need to reach into their own pockets in order to retain experienced legal counsel in a dispute with a school district. This not only removes economic barriers to hiring an experienced attorney in a due process dispute, but may also help to bring about a better legal and educational result for the student than if the parents did not have an attorney on their side.