A ruling by the Eastern District of Virginia (EDVA) has clarified that school divisions have the legal right to seek attorney’s fees from special education advocates who repeatedly engage in frivolous or improper challenges.
Special Education law in the United States is largely governed by the Individuals with Disabilities Education Act (the IDEA). Under the IDEA, students with disabilities are entitled to a Free Appropriate Public Education (FAPE). FAPE is provided through an individualized educational program (IEP). The IDEA provides certain procedural safeguards “with respect to the provision” of a FAPE. Among those safeguards is a parental right to challenge the IEP in a due process hearing.
Typically, a due process hearing results in a decision from an administrative hearing officer who finds in favor of either the parent or the local school division. The IDEA allows the prevailing party whether it is the parent or a local school division to seek an award of reasonable attorney’s fees.
If the prevailing party is a local school division, a Court may award attorney’s fees against an attorney who brought the challenge to the IEP upon a showing that the dispute was “frivolous, unreasonable, or without foundation.” Further, a Court may award attorney’s fees against a parent who brought the challenge to the IEP upon a showing that the dispute was brought for “an improper purpose.” In practice, local school divisions, even when they are the prevailing party in a due process hearing, almost never seek attorney’s fees against attorneys or parents.
With that background, the EDVA recently resolved an issue created by the relatively unique framework adopted by Virginia as part of its implementation of the IDEA. The IDEA does not specifically state whether a non-attorney advocate can represent parties in a due process hearing. However, Virginia law allows lay advocates to represent parents in due process hearings and recites that doing so does not put the advocate afoul of the rules defining the unauthorized practice of law.
The issue resolved by the EDVA was whether the attorney’s fees provisions of the IDEA which speak of “attorneys” and “parents” also apply to “advocates” recognized under Virginia law. In Powhatan County School Board v. Halvorsen, et al., the Court held that the attorney’s fees provision of the IDEA could apply to advocates as “an agent and representative of the parents.”
After finding that the attorney’s fees provision of the IDEA could apply to advocates, the Court subsequently not only found in favor of the local school division against an advocate and awarded $330,544.48 in attorney’s fees plus interest, but the Court also permanently enjoined the advocate from filing or participating in any further due process hearings on behalf of the same family.
In reaching this result, the EDVA found that the advocate at issue had employed, “the same ‘scorched earth’ tactic of filing serial due process hearing requests” that she had practiced in multiple other cases. The Court further found that having to deal with these repetitive, duplicitous due process requests had caused the local school division to incur significant legal fees and imposed significant hardships on schoolteachers and administrators including a toll of their mental and emotional health.
