ATTORNEY FEES DENIED WHERE
PARENT DENIED DISTRICT OPPORTUNITY TO
RESPOND
Attorney fees were denied to a parent who requested a due
process hearing and ultimately obtained the desired relief
because the parent denied the district the opportunity to
consider the parent's demands prior to the hearing request. Chad
L v City of Manchester, NH, Sch Dist, 23 IDELR 188 (DC
NH, 1995). Chad L., an 11-year old student, classified as
"seriously emotionally disturbed," attended school at
Webster School in Manchester, New Hampshire. In the fall of 1993,
the mother of Chad noticed that he was "having a lot of
problems." The parent indicated that she was uncomfortable
with Chad's placement, and sought placement in a program at a
different school. An IEPC meeting was held in November 1993 and
the school district responded to the parent's concerns by
providing a one on one tutor for the student at the Webster
School for 30 hours per week. This was offered instead of a
transfer to another school as the district felt that the transfer
would be excessively disruptive to the student's program. The
parent executed the IEP and accepted the district's proposal.
About a week later, the parent revoked her earlier acceptance
of the tutoring program because she had doubts about the tutor's
qualifications. Another IEPC meeting was held on December 2,
1993, at the parent's request to discuss the qualifications of
the tutor. Following this meeting, the parent was comfortable
with the tutor's qualifications, and executed the IEP in
agreement. Later in the month of December, the parent again
requested an IEPC meeting to consider the student's
"triennial review." The meeting was scheduled within
the next week, and the district proposed to continue the
classification of Chad as seriously emotionally disturbed. Again,
the parent executed the IEP in agreement.
Again dissatisfied with the student's progress, the parent
requested another meeting to be scheduled for January 17, 1994,
at 11 a.m. The school district responded by immediately
contacting the parent and indicating that school was not in
session on January 17, and suggested that the meeting be
scheduled on another date. Additionally, the school district
indicated that meetings during the day were difficult to arrange
for teacher schedules, and requested that the meeting be
scheduled either at 8 a.m. or 2 p.m. The parent did not respond
to this offer.
Later that month, the district wrote a letter to the parent
asking when a meeting could be scheduled. Following that latter,
the parent responded that, due to the new working hours of her
husband, she would have to get back with the district regarding
scheduling the meeting. About a week later, the parent wrote a
letter indicating that she did not know why the meeting was being
scheduled or did she remember requesting the meeting, and
withdrew any request that she had made until further notice. The
parent never requested another IEPC meeting, but rather retained
counsel and initiated a due process hearing.
Upon receiving notice from the State Department of Education
of the hearing, the district contacted the parent and reiterated
its willingness and desire to convene an IEPC meeting. An IEPC
was scheduled at the district's initiative and, after discussion,
the district agreed to modify Chad's IEP for placement in the
program at the school requested by the parent. Rather than accept
the district's offer at that time, the parent "took the
district's offer under advisement." At the prehearing
conference, the hearing officer noted that the district had made
the offer to the parents, and that if the parent refused the
matter would need to go forward to a due process hearing.
However, prior to the hearing, the parent did accept the offer
and signed the IEP in agreement on May 5, 1994. Following this,
yet another IEPC meeting was convened, and the district agreed to
the parent's further request that the student's IEP reflect that
he be placed in this program through the 1994-95 school year, and
included a behavioral modification plan. Following this, on the
first day of the hearing, the hearing officer dismissed the
action without prejudice, as all issues raised during the
prehearing conference had been resolved.
The parent then sought attorney fees in federal district
court. The parent claimed that the district refused her request
to meet and that the due process proceedings were prompted by
that refusal. Further, the parent argued that, under the catalyst
theory, they were entitled to attorney fees since the initiation
of the due process proceedings acted as a catalyst in bringing
about the district's decision to change the student's placement.
The district court disagreed with both theories. The court
stated that the record showed the district "went the extra
mile" in an effort to schedule IEPC meetings and meet the
concerns of the parents. In fact, four meetings were scheduled
between December and January 1993-94. Additional meetings were
offered, but the parent refused and withdrew her request for the
meetings. The only time that the district did not schedule a
meeting at the request of the parent was on a date when the
school was not in session.
By resorting to the more formal mechanism of a due process
hearing procedure, without having a reasonable basis to believe
the district was unwilling to meet, or that it was so opposed to
her placement request the meeting would be futile, and without
affording the district an opportunity to even consider her
requests, plaintiff undermined the value and effectiveness of the
[IEPC] process.
Citing to the case of Combs v Sch Bd of Rockingham
County, 20 IDELR 1246 (4th Cir, 1994), the court found that
plaintiff was not a "prevailing party" since:
[T]he school district should have been given notice and the
opportunity to rectify the situation before [the parents] brought
an administrative action and subsequent lawsuit. While [the
parents] is free to resort to administrative and judicial action,
he cannot expect to recover fees and costs when his efforts
contributed nothing to the final resolution of a problem that
could have been achieved without resort to administrative or
legal process. Combs, supra.
The court went on to hold that:
Attorney fees should not generally be awarded in cases like
this, where the school district was not given a fair opportunity
to hear, consider, and decide what action to take with respect to
a parent's educational request.
This is not to say an attorney's fee award would never be
appropriate where a parent initially invokes formal
administrative or judicial processes. Some
circumstances--demonstrated futility of informal discussion, or a
school district's history of intransigence--may well justify a
fee award even where parents go directly to formal dispute
resolution processes. But this is not such a case. An award of
attorney fees here would not be appropriate because had the
parent given the district a fair opportunity to consider her
demands, it would have made the same decision it eventually made,
and it would have done so without the need for either party to
incur attorney fees.
IMPLICATIONS:
The holding in this case reiterates the importance of the IEPC
process. The IDEA contemplates that educational decisions will be
made through this process, and that parents and districts are to
cooperate in an effort to resolve educational issues prior to
resorting to more formal procedures. Parents and districts alike
have a right to fully discuss educational options at an IEPC
process, and hearing officers and courts are disinclined to
"reward" a party for being "trigger happy" in
the request for due process.
When a parent raises concerns about a student's educational
programs, or requests additional services or a different program,
the first response from the district should be to immediately
schedule an IEPC meeting to discuss the matter. Be sure to
encourage the parent to bring forth all concerns and issues at
the IEPC. If disagreements arise over an issue that was not
presented to the IEPC, offer to reconvene the IEPC to discuss
those issues.
If a due process hearing is requested, attempt to have the parent indicate with specificity those issues with which they disagree. If any of these were not fully discussed at the IEPC, offer to reconvene the meeting to explore the parent's concerns. Hearing officers have the authority to remand the parties to an IEPC to consider issues which were not fully developed at the prior meeting. As is exemplified by this case, a cooperative attitude and willingness to meet with parents and discuss issues will go a long way towards saving your district significant time, effort, and money in the long run.