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IDEA 2004: Rule 11 & Attorneys Fees

Parents and advocates have expressed concern about the “new” attorney fee statute in IDEA 2004 permitting school districts to recover fees from parents.

IDEA 2004 states:

(i) IN GENERAL - In any action or proceeding brought under this section, the court, in its discretion, may award reasonable attorneys' fees as part of the costs--

(I) to a prevailing party who is the parent of a child with a disability;
(II) to a prevailing party who is a State educational agency or local educational agency against the attorney of a parent who files a complaint or subsequent cause of action that is frivolous, unreasonable, or without foundation, or against the attorney of a parent who continued to litigate after the litigation clearly became frivolous, unreasonable, or without foundation [bold added for emphasis by me]; or
(III) to a prevailing State educational agency or local educational agency against the attorney of a parent, or against the parent, if the parent's complaint or subsequent cause of action was presented for any improper purpose, such as to harass, to cause unnecessary delay, or to needlessly increase the cost of litigation. 20 U.S.C. Section 1415(i)(3)(B)(i)


Any attorney or “pro se” party in a U. S. District Court lawsuit is bound by the Federal Rules of Civil Procedure (FRCP). Rule 11 states that the filing of a pleading or document is an automatic representation and certification that:

(1) it is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation;
(2) the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law;
(3) the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; and
(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.

The language in IDEA 2004 that permits fees against an attorney states:

“who files a complaint or subsequent cause of action that is frivolous, unreasonable, or without foundation, or . . . continued to litigate after the litigation clearly became frivolous, unreasonable, or without foundation ...”


is very similar to the standard of Rule Eleven which prohibits litigation for:

“any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation . . .”

In essence, adding Rule 11 language to IDEA 2004 is not a change in law but simply restates the law of Rule 11, both in FRCP and case law interpretations of Rule 11. Christiansburg Garment Co. v. EEOC, 434 US 412 (1978) is the leading case about this issue.

The full text of Section 1415 in IDEA 2004 with language deleted from IDEA 2004 crossed out and language added in italics is at:

http://www.wrightslaw.com/law/idea/section1415.pdf

Improper Litigation
The fact that IDEA 2004 includes Rule 11 language does not give school board attorneys a pass on frivolous actions. They are still accountable under Rule 11.

In my practice, I cannot recall a single case where a school board initiated a due process hearing as the moving party for reasons that would fall under Rule 11.

Unfortunately, I have had far too many consultations with parents in pro se litigation who went forward with cases that should not have been brought and risked having to pay the school board's attorney fees. In most cases, they consulted with me after they lost the due process hearing and wanted me to pick up the appeal.

Practical Impact of This Statute
The practical impact of this statute may be to reduce the number of parents who shoot from the hip, request a due process hearing out of anger and emotion, do not prepare their case, and simply want to get back at the school district for perceived wrongs.

Parents, advocates, and parent attorneys will benefit if it has this effect.

Many federal judges and hearing officers view parents of children with disabilities as "loose cannons." This perception poisons the well for other parents. As attorneys, we must overcome this perception of our client and convince the hearing officer or judge that our parent and the facts in this case are different.

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