The Supreme Court of the United States in Arlington Central School District Board of Education v. Murphy, 548 U.S. 291 (2006) held that the Individuals with Disabilities Education Act (“IDEA”), which does permit the recovery of attorney fees, does not authorize prevailing parents to recover expert fees from school districts. The IDEA Award of Attorneys’ Fees section reads as follows:
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; 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. §1415(i)(3)(B)
Parents of Joseph Murphy, a disabled student, prevailed in an action under IDEA in which they asked the school district to pay for their son’s private school tuition. The parents then sought reimbursement for the services of Marilyn Arons, an educational consultant who had helped the Murphys throughout the proceedings. The District Court awarded $8650.00 for the time Arons had spent assisting the Murhpys between the hearing request and the ruling awarding payment of the tuition, and the Second Circuit affirmed. Resolving a split among the Circuit Courts, the Supreme Court reversed, explaining that Congress enacted IDEA pursuant to the Spending Clause of the Constitution, which requires clear notice to states of any conditions attached to money a state might choose to accept. The statute’s fee shifting language does not provide clear notice that a state would be obligated to pay for expert fees. The “plain on its face” language only speaks of “reasonable attorneys’ fees.”
Previously, in November of 2003, a decision rendered by the U.S. Court of Appeals for the Seventh Circuit, changed the law in Illinois regarding the parental right of reimbursement for expert fees when parents are prevailing parties, and clarified the law regarding reimbursement of attorneys fees in IDEA cases. T.D. v LaGrange School District No. 102, 40 IDELR 32 (7th Cir. 2003).
Prior to this decision, case law in Illinois and the Seventh Circuit generally allowed parents who prevailed at due process the potential to seek reimbursement of any expert fees they paid as part of the due process hearing and preparation, including fees for independent evaluations and time for preparation and testimony at their child’s due process hearing. In T.D. v LaGrange, however, the Seventh Circuit forecasted the Supreme Court’s ruling in Murphy and decided to follow the lead of the Eighth Circuit, and preclude parents’ reimbursement of what they call “expert witness fees,” even when parents are clearly prevailing parties. In the T.D. case, the parents had argued that “expert fees” were part of the legislative intent behind the fee shifting provision contained within the IDEA. However, the Seventh Circuit disregarded that argument and quoted from an Eighth Circuit opinion in stating “there is no ambiguity in the statute,” and therefore “no occasion to look to the legislative history.”
Prior to the Seventh Circuit’s decision in T.D. v LaGrange, many courts accepted the “catalyst theory” which allowed parents of disabled children to be awarded attorney fees if they were able to secure services through a mutual settlement agreement with their school districts. The parents received attorney fees because their actions served as a catalyst that led to the result the parents wanted – making the parents “prevailing parties.”
However, in Buckhannon Board & Care Home, Inc. v West Virginia Department of Health and Human Services, 532 U.S. 598 (2001), which involved the Americans with Disabilities Act and the Fair Housing Amendments Act, not the IDEA, the U.S. Supreme Court ruled that the “catalyst theory” lacked the “necessary judicial imprimatur,” (formal, published approval). Therefore, despite the fact that Plaintiff’s lawsuit was the reason or “catalyst” for a change in the state statute, it was not enough to confer “prevailing party” status. The Court concluded that only a consent decree, a settlement agreement ordered by the court, or an actual decision rendered could confer such status. Therefore, Buckhannon’s petition for attorney fees was denied.
While the Buckhannon decision did not specifically involve a claim under IDEA, many school districts around the country began arguing that because the Buckhannon opinion pertained to an administrative agency, that its definition of “prevailing party” should be extended to include all cases originating from administrative agencies, including IDEA cases. In T.D. v LaGrange, the Seventh Circuit held that school districts are not “prevailing parties” entitled to the reimbursement of attorney fees when there has been a settlement between the parties.
However, the Seventh Circuit’s opinion, like the Buckhannon decision, did provide one caveat to collecting attorney fees in some settlement situations – if the settlement is not merely private (between two parties), but is filed and ordered through the courts, like a consent decree, then there is an argument that the parents might be considered “prevailing parties.” Of course, fees remain available to parents deemed prevailing parties through a due process hearing or court action.
On one hand, it will now be more financially advantageous for parents to push cases to a full due process hearing instead of trying to reach a pre-hearing resolution, as their attorney fees would then be reimbursable if they prevail. However, it is extremely difficult for parents to prevail at a due process hearing without the aid of an experienced and credible expert witness. It addition, the IDEA limits a parent’s reimbursement of attorney fees in situations where the school district has offered a settlement agreement that would confer the same benefits a parent could receive through a due process decision, with the exception of attorneys fees and “expert witness fees.” In other words, if the district makes an offer and the hearing officer fails to order more than what was offered, parents are not entitled to fees.