The Individuals with Disabilities Education Act (IDEA) is the federal statute that ensures disabled students are provided with access to a free and appropriate public education.1 The IDEA contains a fee-shifting provision that permits courts to award attorney’s fees to prevailing parties when educational plans are challenged.2 The fee-shifting provision ensures that the IDEA is enforced by allowing parents to pursue the education their child is entitled to, without incurring attorney’s fees.3
The Supreme Court decision in Buckhannon Board and Care Home, Inc. v. West Virginia Department of Health and Human Resources rejected the commonly used "catalyst theory" in determining prevailing party status for the fee-shifting provision in the Fair Housing Amendments Act of 1988 (FHAA).4 Holding that fee-shifting provisions should be interpreted in a similar manner, the U.S. Seventh Circuit Court of Appeals applied the Buckhannon interpretation of prevailing party to the IDEA in T.D. v. LaGrange School District No. 102.5 This article discusses the application of the Buckhannon interpretation of prevailing party to the IDEA and the resulting impact to disabled children their families.
The "Individuals with Disabilities Education Act" (IDEA) and its predecessor, the Education of All Handicapped Children Act of 1975, were enacted to ensure that children with disabilities receive a free and appropriate public education.6 Before the enactment of the Education for all Handicapped Children Act of 1975, over fifty percent of the children with disabilities were not receiving appropriate educational services.7 One million of the children with disabilities were actually excluded from public school.8
The IDEA has four purposes. The IDEA guarantees disabled children a right to a free and appropriate public education.9 The education must be designed to meet the individual child’s specific needs.10 Second, the IDEA protects the rights of the disabled children and parents in providing the education and services.11 Third, the responsibility of making sure the disabled children receive the education they are entitled to is given to the states and local school districts.12 Fourth, the IDEA provides for assessment to ensure effectiveness of the efforts made in educating children with disabilities.13 Currently over six million children benefit from special education services14 or approximately thirteen percent of the total school population.15
The IDEA contains a system of procedural safeguards that protect the rights of both the students and the parents.16 The procedural safeguards were put in place to protect against "arbitrary decision-making on the part of educators"17 and "an absence of agreement on the part of the parents/guardians and teachers as to what is an adequate education for the student".18 Congress believed that if the parents and school district could plan the disabled child’s education together, both the educational opportunities and the child’s rights would be protected.19
The procedural safeguards mandated by the IDEA include the opportunity for the parents to examine all records, and participate in all meetings regarding the identification, evaluation and placement of the child.20 The parents receive written notice whenever the local school district proposes changes to the child’s educational placement or refuses to initiate changes to the child’s educational placement.21 The parents have access to mediation at the expense of the school district if there are disagreements pertaining to the identification, evaluation or educational placement of the child.22 If the family happens to fall into the one of the approximately 11,000 families annually that can not agree on an Individualized Education Plan (IEP), an impartial due process hearing is available to them.23 The decision of the due process hearing can be appealed in any State court or district court of the United States.24
During the impartial hearing proceedings, the parents have the right to retain legal counsel.25 Under 20 U.S.C. § 1415, attorney’s fees can be awarded to the parents at the discretion of the court when the parents of the disabled child are the prevailing party in any action or proceeding brought under this section.26 The statute contains this fee shifting provision because Congress realized parents would need attorneys to aid them in their dispute against the school district.27 Many parents are not in a position to afford the "professional assistance" or attorneys they "need" and the fee shifting provision of the IDEA is critical to engaging counsel. 28
II. How important is it to have an attorney?
In 2002, Melanie Archer, PhD, conducted a study that examined due process hearings in Illinois between July 1997 and June 2002.29 The study analyzed factors that affect which party prevails in an impartial due process hearing.30 Three hundred forty-three due process hearings that occurred in Illinois between July 1997 and June 2002 were analyzed in the study.31 For the purposes of the evaluation, a parental win was defined as a parent prevailing on at least one, but not all, of the major issues in a case.32
Parents won due process hearings in 30.5 percent of the cases in which decisions were issued during the defined time period.33 When school districts requested the hearing, the school district won 91.2 percent of the cases.34 In three years, 1999, 2000, 2001, parents actually won none of the cases initiated by the school district.35 When parents initiated the due process hearing, they tended to have better results, winning 39 percent of the time.36
The most important factor in determining due process hearing success was representation by an attorney.37 School districts were represented by attorneys in 94 percent of the due process hearings.38 However, parents only had attorney representation 44 percent of the time.39 Parents won 50.4 percent of the cases where they had attorney representation, and only 16.8 percent of the cases without attorney representation.40 This study shows that it is critical for the parents to have attorney representation at due process hearings.41 The attorney representation does not give the parents an advantage, it merely places them on a level equal with that of the school district.42
III. The Fee shifting provision
A. The Catalyst Theory
Prior to 2001 the prevailing party language of the IDEA was applied using a two part test in most jurisdictions.43 A party was considered a prevailing party when "(1) the party obtains relief, and (2) there is a causal connection between the filing of the litigation or administrative proceeding and the relief obtained."44 In order to meet the second part of the test, courts relied upon the "catalyst theory of recovery".45 The "catalyst theory of recovery" means that "even though the litigation did not result in a favorable judgment, the pressure of the lawsuit was a material contributing factor in bringing about extrajudicial relief."46 To be considered a prevailing party under the catalyst theory the parents just needed to show that through their administrative proceedings or court proceedings, some aspect of the relief was granted.47 The parent was entitled to receive attorney fees if the settlement was formal or informal, as long as the request for a due process hearing was the impetus for change.48
B. Buckhannon Board and Care Home, Inc. v. West Virginia Department of Health and Human Resources
The interpretation of "prevailing party" was changed following the Supreme Court’s decision in Buckhannon Board and Care Home, Inc. v. West Virginia Department of Health and Human Resources.49 In Buckhannon, the Buckhannon Board and Care Home failed an inspection by the West Virginia office of the State Fire Marshal.50 The violation was due to some care home residents being incapable of "self preservation" as required by a West Virginia statute.51 The Buckhannon Board and Care Home brought suit and claimed that the "self preservation" requirement violated the Fair Housing Amendments Act of 1988 (FHAA).52 Before the case was decided, the West Virginia Legislature eliminated the "self-preservation" requirement and the case was dismissed as moot.53 The Supreme Court granted certiorari on the issue of whether the petitioners could receive requested attorney fees under the fee shifting provision of the FHAA.54
The Supreme Court clarified "prevailing party" to be one who either secures an enforceable judgment on its merits or is a part of a settlement agreement that is enforced through a consent decree.55 Buckhannon held that a voluntary change in conduct, even if it accomplishes what the plaintiff was trying to achieve through the lawsuit, is not sufficient for the plaintiff to be considered a prevailing party.56 The Supreme Court rejected the catalyst theory as a basis for the attorney’s fees since it "allows an award where there is no judicially sanctioned change in the legal relationships of the parties."57 In addition, the Supreme Court in Buckhannon stated in dicta that the fee-shifting provisions are interpreted consistently.58
IV. Impact of the Buckhannon decision
The U.S. Seventh Circuit Court of Appeals held that Buckhannon’s interpretation of prevailing party applied to the IDEA in T.D. v. LaGrange School District No. 102.59 T.D. was a disabled child whose parents had placed him in private school, and then sought reimbursement from the school district.60 The parents and school district settled after a due process hearing.61 In the settlement the parents received the services they wanted, received reimbursement for the costs they had incurred in private placement, and the district court awarded them attorney’s fees.62 The district court held that Buckhannon did not apply to the IDEA, therefore T.D. was a prevailing party under the catalyst theory since he succeeded on a significant issue.63
The U.S. Seventh Circuit Court of Appeals overturned part of the attorney’s fees award.64 The court ruled that fee shifting statutes should be interpreted consistently as stated in Buckhannon, thereby rejecting the district courts use of the catalyst theory.65 The court rejected the argument that the IDEA contains language intended to include more parties in "prevailing party" than just those who receive judicial relief.66
The U.S. Seventh Circuit Court of Appeals also rejected the argument that a free and appropriate education is no longer free if the family obtained that education only when saddled with large legal costs.67 Although the court found this to be a strong argument, the court distinguished between a free education and the right to attorney’s fees "incurred in pursuit of that education."68 Since it was not clear that requiring parents to bear the cost of attorney fees was against the purpose of the IDEA, the court held that Buckhannon’s holding of "prevailing party" overrides other policy considerations.69
V. Why Buckhannon should not be applied to the IDEA
When the educational services provided to a disabled child are inadequate, it is imperative that the correct services are in place as soon as possible.70 The prescribed process, proceeding to the due process hearing, can take a long time, especially when viewed in context of a school year.71 When cases are settled in court, rather than settled at the administrative level, the child’s access to appropriate services can be delayed months or years.72 Often the only way to get truly prompt relief is to settle after the filing of the due process complaint but before the due process hearing is actually conducted.73 The sooner the child receives the proper education, the more likely the child will achieve success.74
Settling early is not only in the best interest of the child, settling early in the process can also be best for the school district. According to the GAO report on Special Education that examined mediation as a strategy to resolve conflict, states have been successful in using mediation as an alternative to due process hearings.75 In a survey of four states, the GAO found that a high percentage of mediations resulted in agreements.76 In California, during the 2001-2 fiscal year, 93 percent of mediations resulted in agreements between the parents and the school district.77 During the same period, Massachusetts had a success rate of 85 percent and Ohio had a success rate of 89 percent.78 In Texas, mediations had a success rate of 65 percent during 2002.79
Early resolution not only gets the child the help he or she needs, it also has positive effects on the parent/school district relationship. During the GAO survey, school officials stated that mediation helped "foster communications between schools and parents and strengthen relationships."80 Mediations also cost less than due process hearings.81 Savings across the surveyed states varied. Texas estimated that over the past decade $50 million in attorney fees and due process hearing expenses had been saved by using mediation.82 In California, it was estimated that average due process hearing costs about ten times the amount of mediation.83
Despite the potential success of mediation and early settlement, if the Buckhannon interpretation of prevailing party is applied to the IDEA, parents can not be reimbursed for attorney’s fees without a formal judgment.84 Parents will be forced to reject settlement offers in favor of obtaining a judgment from the due process hearing.85 The parents may decide to forgo representation in order to attain early settlement without incurring substantial attorney costs.86 In those situations parents are at a distinct disadvantage and the power imbalance leaves them open to conceding rights they are guaranteed under the IDEA.87
In addition to reducing the opportunities at early settlement, the inability to pursue the proper education will disproportionately affect poor families.88 In 20 U.S.C. § 1400, Congress specifically called attention to the plight of minority and needy children.89 Congress identified that the percentage of minority children in special education is greater than the percentage of minority children in public school.90 In fact, poor African-American children are 2.3 times more likely to be identified as being disabled than their white counterparts.91 Misidentification of minorities with disabilities and the failure to provide adequate services is part of the cause for the higher drop out rates among minorities.92 These parents of poor families may end up unable to pursue the proper education if they are unable to recoup attorney fees.93 By having the fee shifting provision, it allows parents to hire attorneys who may not be able to afford an attorney otherwise.94 It also allows attorneys to take cases where the only method of payment is through the fee shifting.95 Clearly the inability for any parents, poor or wealthy, to get a free and appropriate education for their child is against the goals of the IDEA.
The goal of the IDEA is to provide disabled children with the educational services they require, and are entitled to, as early as possible.96 Research shows that better results are obtained when the child receives the intervention earlier rather than later.97 Applying Buckhannon to the IDEA discourages the early resolution of disputes.98 If the parents can provide the services to their child at their own cost while the case winds through the system, the child may be unharmed.99 For the other children, they will miss out.100 "Once that opportunity is lost, there is no legal remedy worthy of discussion."101
1 Terry Jean Seligmann, An IDEA Schools Can Use: Lessons From Special Education Legislation, 29 Fordham Urb. L.J. 759, 762 (2001).
2 Stefan R. Hanson, Buckhannon, Special Education Disputes, and Attorney’s Fees: Time for a Congressional Response Again, 2003 BYU Educ. & L.J. 519, 519 (2003).
3 Id. at 520.
4 Id. at 519.
5 T.D. v. LaGrange Sch. Dist. No. 102, 349 F.3d 469 (7th Cir. 2003).
6 20 U.S.C. § 1400 (2000).
7 20 U.S.C. § 1400(c)(2)(B) (2000).
8 20 U.S.C. § 1400(c)(2)(C) (2000).
9 20 U.S.C. § 1400(d)(1)(A) (2000).
10 20 U.S.C. § 1400(d)(1)(A) (2000).
11 20 U.S.C. § 1400(d)(1)(B) (2000).
12 20 U.S.C. § 1400(d)(2) (2000).
13 20 U.S.C. § 1400(d)(4) (2000)
14 Seligmann, supra note 1, at 759.
16 20 U.S.C. § 1415 (2000).
17 Philip T.K. Daniel, Education for Students with Special Needs: The Judicially Defined Role of Parents in the Process, 29 J.L. & Educ. 1,9 (2000).
18 Id. at 12.
19 Tara J. Parrillo, The Individuals With Disabilities Act (IDEA): Parental Involvement and the Surrogate Appointment Process, 74 Or. L. Rev. 1339, 1342 (1995).
20 20 U.S.C. § 1415 (b)(1) (2000).
21 20 U.S.C. § 1415 (b)(3) (2000).
22 20 U.S.C. § 1415 (e) (2000).
23 U.S. General Accounting Office, Rep. No. GAO-03-897, Special Education: Numbers of Formal Disputes are Generally Low and States are Using Mediation and Other Strategies to Resolve Conflicts 2, 18 (Sept. 2003), available at http://www.gao.gov/new.items/d03897.pdf.
24 20 U.S.C. § 1415 (i) (2000)
25 20 U.S.C. § 1415 (h) (2000).
26 20 U.S.C. § 1415 (3) (B) (2000).
27 Weast v. Schaffer, 377 F.3d 449, 456 (4th Cir. 2004).
29 Melanie Archer, Access and Equity in the Due Process System: Attorney Representation and Hearing Outcomes in Illinois, 1997-2002, 1 at http://www.dueprocessillinois.org/Access.pdf (November 12, 2004).
30 Id. at 2.
32 Id. at 3.
33 Id. at 5.
34 Id. at 6.
35 Melanie Archer, Access and Equity in the Due Process System: Attorney Representation and Hearing Outcomes in Illinois, 1997-2002, 6 at http://www.dueprocessillinois.org/Access.pdf (November 12, 2004).
36 Id. at 7.
41 Melanie Archer, Access and Equity in the Due Process System: Attorney Representation and Hearing Outcomes in Illinois, 1997-2002, 7 at http://www.dueprocessillinois.org/Access.pdf (November 12, 2004).
43 J.C. v. Reg’l Sch. Dist. 10, Bd. of Educ., 278 F.3d 119, 123 (2d Cir. 2002).
47 Andrea Shemberg, Mediation as an Alternative Method of Dispute Resolution for the Individuals With Disabilities Act: A Just Proposal?, 12 Ohio St. J. on Disp. Resol. 739, 743 (1997).
48 Mark C. Weber, Litigation Under the Individuals with Disabilities Education Act After Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources, 65 Ohio St. L.J. 357, 372 (2004).
49 J.C., 278 F.3d 119 at 123.
50 Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health & Human Res., 532 U.S. 598, 600 (2001).
52 Id. at 601.
54 Id. at 602.
55 Id. at 604.
56 Buckhannon, 532 U.S. 598 at 605.
58 Id. at 603.
59 T.D. v. LaGrange Sch. Dist. No. 102, 349 F.3d 469 (7th Cir. 2003).60 Id. at 473.
63 Id. at 473-4.
64 Id. at 474.
65 T.D., 349 F.3d 469 at 475.
66 Id. at 476.
67 Id. at 477.
69 Id. at 477-8.
70 Weber, supra note 48, at 372.
72 Alegria v. District of Columbia, No. 00-2582, 2002 U.S. Dist. LEXIS 16898, at *5 (D.D.C. Sept. 9, 2002).
73 Weber, supra note 48, at 372.
75 U.S. General Accounting Office, Rep. No. GAO-03-897, Special Education: Numbers of Formal Disputes are Generally Low and States are Using Mediation and Other Strategies to Resolve Conflicts 2, 18 (Sept. 2003), available at http://www.gao.gov/new.items/d03897.pdf.
81 U.S. General Accounting Office, Rep. No. GAO-03-897, Special Education: Numbers of Formal Disputes are Generally Low and States are Using Mediation and Other Strategies to Resolve Conflicts 2, 18 (Sept. 2003), available at http://www.gao.gov/new.items/d03897.pdf.
84 Jeff Lerner, Encouraging Litigation at the Expense of Our Children: The Inapplicability of Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources to the Individuals With Disabilities Education Act, 76 Temp. L. Rev. 381, 403 (2003).
86 Shemberg, supra note 47, at 757.
88 Lerner, supra note 84, at 404.
89 20 U.S.C. § 1400 (8) (2000).
90 20 U.S.C. § 1400 (8)(B)(2000).
91 20 U.S.C. § 1400 (8)(c)(2000).
92 20 U.S.C. § 1400 (8)(e).
93 Johnson v. District of Columbia, 190 F. Supp. 2d. 34, 45-56 (D.D.C. 2002).
94 Shemberg, supra note 47, at 743.
96 Weber, supra note 48, at 380-81.
97 Martin A. Kotler, The Individuals With Disabilities Act: A Parent’s Perspective and Proposal for Change, 27 U. Mich. J.L. Reform 331, 397 (1994).
98 Hanson, supra note 2, at 521.
99 Kotler, supra note 97, at 397.
Karen Blouin is a second year law student at the Northern Illinois University College of Law and a member of the Northern Illinois University Law Review.