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Case No. 12-57315
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
C.W., a minor, by her Mother, K.S., Guardian Ad Litem; K.S., Guardian Ad Litem,
Plaintiffs – Appellants,
v.
Capistrano Unified School District,
Defendant – Appellee.
Appeal from The United States District Court
for the Central District of California
The Honorable David O. Carter, Presiding
Brief of Amici Curiae Disability Rights Legal Center, Disability Rights
California, Public Counsel Law Center, Children’s Rights Clinic at
Southwestern Law School, Pepperdine University School of Law Special
Education Advocacy Clinic, and University of San Diego Legal Clinics in
Support of Plaintiffs-Appellants and Reversal of the Fee Award
YOUTH & EDUCATION LAW PROJECT
William S. Koski (CA SBN 166061)
Carly J. Munson (CA SBN 254598)
Mills Legal Clinic, Stanford Law School
559 Nathan Abbott Way
Stanford, California 94305
Telephone: (650) 724-1900
Facsimile: (650) 723-4426
DISABILITY RIGHTS LEGAL CENTER
Paula D. Pearlman (CA SBN 109038)
Michelle Uzeta (CA SBN 164402)
Anna Rivera (CA SBN 239601)
800 S. Figueroa Street, Suite 1120
Los Angeles, California 90017
Telephone: (213) 736-1031
Facsimile: (213) 736-1428
Counsel for Amici Curiae
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TABLE OF CONTENTS
Page
INTERESTS OF AMICI CURIAE...........................................................................1
STATEMENT PURSUANT TO FRAP 29(c)(5) .....................................................5
SUMMARY OF THE ARGUMENT........................................................................6
ARGUMENT.............................................................................................................7
I. THE IDEA IS EXPLICITLY DESIGNED TO PROTECT
AND INCLUDE PARENTS AND RELIES UPON THEM
TO ENFORCE THE STATUTORY SCHEME..............................................8
II. SANCTIONING THIS AWARD OF ATTORNEYS FEES TO
CAPISTRANO WILL UNDERMINE THE INTEGRITY AND
EXECUTION OF THE IDEA.......................................................................12
A. This Award of Attorneys Fees Would Chill Parent Participation
in the Special Education Process at a Time When the Statute Is
Already Under-Enforced..........................................................................12
B. This Award of Attorneys Fees Would Prevent Parents From
Obtaining Legal Representation, Disproportionately Impacting
Poor and Minority Families and Widening the Enforcement Gap...........16
III. AFFIRMING THE DISTRICT COURT’S AWARD OF ATTORNEYS
FEES WOULD UNDERMINE CONGRESS’S EXPRESS INTENTION
THAT THE IDEA’S FEE-SHIFTING PROVISION BE TREATED
LIKE THAT OF A CIVIL RIGHTS STATUTE..........................................21
A. Courts Must Effectuate Congress’s Clear Decision to Model the IDEA’s
Fee-Shifting Provision on the Christiansburg Garment Standard...........21
B. Courts Must Not Let Whether Parents Prevail Cloud Their Application
of the Christiansburg Garment Standard……………………………… 28
IV. CONCLUSION.............................................................................................30
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ii
TABLE OF AUTHORITIES
Federal Cases Page
Aguirre v. L.A. Unified Sch. Dist.,
461 F.3d 1114 (9th Cir. 2006)........................................................................... 22
Board of Educ. v. Rowley,
458 U.S. 176 (1982)...................................................................................8, 9, 10
Christiansburg Garment Co. v. Equal Emp’t Opportunity Comm’n,
434 U.S. 412 (1978)....................................................................................passim
Coates v. Bechtel,
811 F.2d 1045 (7th Cir. 1987)............................................................................13
Doe ex rel. Doe v. Attleboro Pub. Sch.,
No. 1:12-CV-10266-DJC, 2013 WL 1002249 (D. Mass. Mar. 14, 2013)..........24
Fort Ord Toxics Project, Inc. v. Cal. E.P.A.,
189 F.3d 828 (9th Cir. 1999) .............................................................................24
G.M. v. Saddleback Valley Sch. Dist.,
No. SACV 11-1449 DOC, 2012 WL 5947213 (C.D. Cal. Nov. 26, 2012)........30
Harris v. Maricopa Cnty. Sup. Crt.,
631 F.3d 963 (9th Cir. 2011)............................................................................. 29
Hawkins v. Berkeley Unified Sch. Dist.,
250 F.R.D. 459 (N.D. Cal. 2008) ......................................................................25
Hughes v. Rowe,
449 U.S. 5 (1980) ..............................................................................................28
Int’l Bhd. of Teamsters v. Silver State Disposal Serv., Inc.,
109 F.3d 1409 (9th Cir. 1997)............................................................................29
Jones v. Cont’l Corp.,
789 F.2d 1225 (6th Cir.1986) ............................................................................25
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iii
Page
Jones v. Tex. Tech. Univ.,
656 F.2d 1137 (5th Cir. 1981) ...........................................................................25
Kathleen H. v. Mass. Dep’t of Educ.,
154 F.3d 8 (1st Cir. 1998) ..................................................................................22
Larez v. Holcomb,
16 F.3d 1513 (9th Cir. 1994) .............................................................................29
Mitchell v. Office of L.A. Cnty. Superintendent of Sch.,
805 F.2d 844 (9th Cir. 1986) .............................................................................14
Morgan Hill Concerned Parents Assoc. v. Cal. Dep’t. of Educ.,
2013 WL 1326301 (E.D. Cal. Mar. 29, 2013) ...................................................15
Mr. L. v. Sloan,
449 F.3d 405 (2d Cir. 2006) ..............................................................................24
Newman v. Piggie Park Enters., Inc.,
390 U.S. 400 (1968) ..........................................................................................11
Oakstone Cmty. Sch. v. Williams,
No. 2:11-CV-1109, 2012 WL 4051322 (S.D. Ohio Sept. 13, 2012) .................24
Parks Sch. of Business, Inc. v. Symington,
51 F.3d 1480 (9th Cir. 1995) .............................................................................29
R.P. ex rel. C.P. v. Prescott Unified Sch. Dist.,
631 F.3d 1117 (9th Cir. 2011) ....................................................................passim
Riddle v. Egensperger,
266 F.3d 542 (6th Cir. 2001) .............................................................................25
Sagan v. Sumner Bd. of Educ.,
501 Fed. Appx. 537 (6th Cir. 2012) ..................................................................24
Schaffer ex rel. Schaffer v. Weast,
546 U.S. 49 (2005) ..............................................................................................9
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iv
Page
Smith v. Robinson,
468 U.S. 992 (1984) ..........................................................................................22
Sullivan v. Sch. Bd. of Pinellas Cnty.,
773 F.2d 1182 (11th Cir. 1985) .........................................................................25
Takao Ozawa v. United States,
260 U.S. 178 (1922) ..........................................................................................24
Taylor P. ex rel. Chris P. v. Miss. Dep’t. of Elementary & Secondary Educ.,
No. 06-4254-CV-C-NKL, 2007 WL 2907825 (W.D. Mo. Oct. 3, 2007)...........24
Townsend v. Holman Consulting Corp.,
929 F.2d 1358 (9th Cir. 1991) ...........................................................................27
Winkelman ex rel. Winkelman v. Parma City Sch. Dist.,
550 U.S. 516 (2007) ............................................................................................8
Statutes and Rules
Pub. L. No. 94-142, § 1 (1975) ...............................................................................11
Pub. L. No. 99-372, 100 Stat. 796 (1986) ..............................................................22
20 U.S.C. §§ 1400, et seq..........................................................................................1
20 U.S.C. § 1400(c)(7) ...........................................................................................18
20 U.S.C. § 1400(c)(10)-(13)........ .........................................................................18
20 U.S.C. § 1400(d)(1)(A) ........................................................................................8
20 U.S.C. § 1411(a)(2), (d)(3)(a) ............................................................................18
20 U.S.C. § 1414.......................................................................................................9
20 U.S.C. § 1415.....................................................................................................10
20 U.S.C. § 1415(a)(1)(D).........................................................................................9
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Page
20 U.S.C. § 1415(b)(1) .............................................................................................9
20 U.S.C. § 1415(f)-(h) ..........................................................................................10
20 U.S.C. § 1415(i)(3)(B)(i)(I) ...................................................................10, 22, 29
20 U.S.C. § 1415(i)(3)(B)(i)(II) ..............................................................................23
20 U.S.C. § 1415(i)(3)(B)(i)(III) ......................................................................23, 26
29 U.S.C. § 794e........................................................................................................3
42 U.S.C. § 1988.....................................................................................................22
42 U.S.C. §§ 6000, et seq..........................................................................................3
42 U.S.C. §§ 10801, et seq........................................................................................3
34 C.F.R. § 300.502(a) .............................................................................................9
Fed. R. Civ. P. 11.....................................................................................................29
Other Authorities
131 Cong. Rec. 21,391 (1985) ................................................................................11
150 Cong. Rec. 11,453 (2004) ..........................................................................23, 26
About COPAA, Council of Parent Attorneys & Advocates,
http://www.copaa.org/?page=about....................................................................17
Brief for the Autism Soc’y of Am. et al. as Amici Curiae in Support of
Petitioners, Winkelman ex rel. Winkelman v. Parma City Sch. Dist.,
550 U.S. 516 (2007) (No. 05-983), 2006 WL 3740367.....................................17
Elisa Hyman, Dean Hill Rivkin, & Stephen A. Rosenbaum, How IDEA Fails
Families Without Means: Causes and Corrections From the Frontlines of
Special Education, 20 J. Gender, Soc. Pol’y & L. 107 (2011).....................10, 19
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Page
Eloise Pasachoff, Special Education, Poverty, and the Limits of Private
Enforcement, 86 Notre Dame L. Rev. 1413 (2011) ...............................18, 19, 20
Equity and Excellence Commission, 75 Fed. Reg. 48,661 (Aug. 11, 2010),
available at https://federalregister.gov/a/2010-19800........................................18
FY 2013 Income Limits Documentation System, Hous. Urban Dev.,
http://www.huduser.org/portal/datasets/il/il2013/2013summary.odn (select
“Orange County, CA HUD Metro FMR Area” on drop down menu; then
follow “Select HMFA Income Limits Area” hyperlink) ...................................13
James R. Newcomer & Perry A. Zirkel, An Analysis of Judicial Outcomes of
Special Education Cases, 65 Exceptional Children 469 (1999).........................14
Legal Servs. Corp., Documenting the Justice Gap in America: The Current Unmet
Civil Legal Needs of Low-Income Americans 1 (Sept. 2009) ............................17
Margaret M. Wakelin, Challenging Disparities in Special Education: Moving
Parents from Disempowered Team Members to Ardent Advocates, 3 Nw. J. L.
& Soc. Pol’y 263 (2008) ....................................................................................20
Mark Galanter, Why the “Haves” Come out Ahead: Speculations on the Limits of
Legal Change, 9 L. & Soc’y Rev. 95 (1974) .....................................................20
Nat’l Council on Disability, Back to School on Civil Rights (2000)...........10, 13, 15
Order Granting Def.’s Mot. for Att’y Fees, C.W., et al. v. Capistrano Unified
School District, No. 12-57315 (C.D. Cal. Dec. 5, 2012), ECF No. 55..............13
Patricia A. Massey and Stephen A. Rosenbaum, Disability Matters: Toward A Law
School Clinical Model for Serving Youth with Special Education Needs,
11 Clinical L. Rev. 271 (2005) ....................................................................14, 15
Ruth Colker, California Hearing Officer Decisions (Pub. L. & Legal Theory
Working Paper Series No. 185, 2013), available at
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2201589.....................14, 17
S. Rep. No. 99-112 (1985) ......................................................................................11
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Page
U.S. Dep’t. of Educ., Thirtieth Annual Report to Congress On the Implementation
of the Individuals with Disabilities Education Act 163 (2008), available at:
http://www2.ed.gov/about/reports/annual/osep/2008/parts-b-c/index.html.......15
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INTERESTS OF AMICI CURIAE
Amici curiae are non-profit organizations dedicated to ensuring that children
with disabilities are provided the free and appropriate public education guaranteed
by the Individuals with Disabilities Education Act (“IDEA”).1 Amici represent
low-income and traditionally under-served families in administrative due process
proceedings and litigation against school districts to enforce rights afforded by the
IDEA.
Although the instant case directly involves only one student, C.W., the
Court’s decision in this matter will significantly affect the landscape of the special
education process and could prevent countless other students and parents,
including amici’s clients, from exercising the due process protections guaranteed
by the IDEA. In addition, if this Court upholds the underlying fee order, amici
may no longer be able to help students and parents pursue meritorious claims or
defend themselves against cases brought by plaintiff school districts, and the
IDEA’s purpose and enforcement mechanisms will be vitiated.
As amici’s collective advocacy work spans the entire State of California,
amici offer valuable insights about on-the-ground, widespread policy implications
of this matter. Amici are extremely familiar with special education history,
legislation, case law, and policy as they apply to this case. Among amici are
1 Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400, et seq.
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individuals who are scholars in this area and the co-author of a prominent special
education law treatise. In addition, amici have participated as amici curiae in
significant disability and educational law cases decided by this Court. Amici
believe that their expertise and perspective can help the Court understand more
fully the grave ramifications of upholding the underlying fee order.
This brief is submitted with the consent of all parties pursuant to Federal
Rule of Appellate Procedure 29(a).
Amici curiae include:
Disability Rights Legal Center: The Disability Rights Legal Center
(“DRLC”) is a non-profit legal organization that was founded in 1975 to represent
and serve people with disabilities. Individuals with disabilities continue to struggle
against ignorance, prejudice, insensitivity, and lack of legal protection in their
endeavors to achieve fundamental dignity and respect. The DRLC assists people
with disabilities in attaining the benefits, protections, and equal opportunities
guaranteed to them under the Rehabilitation Act of 1973, the Americans with
Disabilities Act, the IDEA, and other state and federal laws. Its mission is to
champion the rights of people with disabilities through education, advocacy, and
litigation. The DRLC is a recognized expert in the field of disability rights.
Disability Rights California: Disability Rights California is a non-profit
agency mandated under federal law to advance the legal rights of Californians with
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disabilities, including children enrolled in special education programs.2 Disability
Rights California legal staff provide free referral and advice, as well as
representation in individual and class action cases. Its work includes representing
youth from low-income families in administrative hearings and appeals in state and
federal court brought under the IDEA.
Public Counsel Law Center: Public Counsel Law Center (“Public
Counsel”) is the largest pro bono law office in the nation. The Children’s Rights
Project at Public Counsel provides legal representation, advocacy, and social work
support to low-income children and families, specializing in complex cases
involving multiple legal issues. Public Counsel ensures that youth with
disabilities, particularly court-involved youth, have access to a free and appropriate
public education under the IDEA through court-based legal clinics, direct
representation, local and state policy advocacy, and impact litigation.
Children’s Rights Clinic at Southwestern Law School: The Children’s
Rights Clinic (“CRC”) was founded with the mission of teaching law students
practical lawyering skills while providing high quality legal education to low-
income families in Los Angeles County in the areas of special education and
school discipline. The CRC represents children with disabilities and their families
2 Protection and Advocacy for Individuals with Developmental Disabilities, 42
U.S.C. §§ 6000, et seq.; Protection and Advocacy for Individuals with Mental
Illness, 42 U.S.C. §§ 10801, et seq.; Protection and Advocacy for Individual
Rights, 29 U.S.C. § 794e.
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to ensure that they receive the free and appropriate public education that they are
entitled to under the IDEA and the Rehabilitation Act of 1973.
Pepperdine University School of Law Special Education Advocacy
Clinic: The Pepperdine University School of Law Special Education Advocacy
Clinic (“PSEAC”) has provided free advocacy and legal services to children with
disabilities and their parents in matters related to the IDEA, the Rehabilitation Act
of 1973, and other state and federal laws for more than ten years. PSEAC also
provides free teaching and training services to parents, educational agencies,
professional organizations, and others relative to special education law issues, and
the development of the knowledge and skills necessary for collaborative decision
making in its processes. In addition, PSEAC provides advocacy relative to legal
and public policy under the IDEA.
University of San Diego Legal Clinics: The University of San Diego
(“USD”) Legal Clinics, Education and Disability Clinic, was founded in 2003 with
the dual purpose of training upper division law students in the practice of education
and disability law, while providing free legal services to lower income families in
San Diego County. It is one of eleven such client clinics at the USD School of
Law. These clinics, some of which began over forty years ago, are dedicated to
representing clients in diverse areas of law – clients who could not otherwise
possibly afford legal representation. The Education and Disability Clinic offers
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legal advice and representation for claims under the IDEA, the Rehabilitation Act
of 1973, and California’s Lanterman Act. At any given time, this clinic has 25 to
30 open cases, working with the parents of children with disabilities.
STATEMENT PURSUANT TO FRAP 29(c)(5)
No counsel for either party authored this brief in whole or in part, and no
party, party’s counsel, or person or entity other than amici curiae, their members,
and their counsel contributed money that was intended to fund the preparation or
submission of this brief.
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SUMMARY OF ARGUMENT
The instant award of attorneys fees to Capistrano Unified School District
(“Capistrano”) contravenes the express language and intent of the IDEA,
disregards controlling legal standards, and creates a dangerously murky threshold
for use in future determinations.
Congress drafted the IDEA with the understanding that parents play a
critical role in the education of their children with disabilities. Parents are essential
to the effectuation of the IDEA, both endowed with responsibility and bestowed
with their own legal rights. In this brief, amici explain how affirming the District
Court’s decision would greatly restrict parents’ ability to utilize the IDEA’s
procedural safeguards, thereby directly undermining Congress’s expressed intent.
Because the IDEA is already under-enforced, society and courts cannot afford to
lose parents’ ardent efforts to secure the free and appropriate public education
guaranteed by the IDEA for their children.
Although awarding attorneys fees to prevailing school districts may be
justified in the rare instance of abusive and egregious litigation, this is not that
case.3 Rather, the award below is a misapplication of the IDEA’s fee-shifting
3 In order to avoid duplicative briefing, amici will not focus on facts or merits of
the instant case. Rather, amici are uniquely situated to discuss this issue within the
broader context of IDEA application and enforcement, and the corresponding
policy implications.
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provision and controlling case law. This Court has the responsibility to preserve
the integrity of the IDEA by reversing the order of the District Court.
ARGUMENT
Affirming the District Court’s ruling would create troubling consequences
that reach far beyond this individual case. As discussed below, the practice of
awarding fees against parents in an unreasonable and unpredictable manner
jeopardizes the structural integrity of the IDEA, which relies heavily upon parental
involvement and enforcement.
Although awarding attorneys fees against parents may be warranted in
certain extreme cases, it is critical that courts follow the clear language and intent
of the IDEA when awarding such fees, and apply the applicable Christiansburg
Garment standard with care.4 If courts do not, special education advocacy
organizations such as amici will be unable to assess the risk of representing parents
in even the most important and meritorious special education matters. Poor and
minority populations, who are already disproportionately underrepresented in
IDEA proceedings, would be particularly harmed by the unavailability of legal
representation.
4 Christiansburg Garment Co. v. Equal Emp’t Opportunity Comm’n, 434 U.S. 412
(1978). As discussed below, Christiansburg Garment provides the controlling
standard to be used when determining whether a prevailing school district may
recover attorneys fees in IDEA matters.
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Affirming the District Court’s order would drastically chill amici’s efforts to
advance and protect the rights of students with disabilities, and risk the undoing of
decades of important civil rights work in the education arena.
I. THE IDEA IS EXPLICITLY DESIGNED TO PROTECT AND
INCLUDE PARENTS AND RELIES UPON THEM TO ENFORCE
THE STATUTORY SCHEME.
The purpose of the IDEA is “to ensure that all children with disabilities have
available to them a free and appropriate public education . . . and that the rights of
children with disabilities and parents of such children are protected.”5 To this end,
the IDEA affords parents substantive rights, “protections that apply throughout the
[special education planning] process,”6 and “general procedural safeguards that
protect the informed involvement of parents in the development of education for
their child.”7
Yet the IDEA is not a self-executing statute; it requires action by school
districts, educators, and parents alike. School districts, as government actors, must
meet “significant requirements” when it comes to “executing and developing
educational programs for handicapped children.”8 One such responsibility is to
collaborate with the parents of students with disabilities, who play an essential role
5 20 U.S.C. § 1400(d)(1)(A).
6 Winkelman ex rel. Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 524
(2007). 7 Id.
8 Bd. of Educ. v. Rowley, 458 U.S. 176, 183 (1982).
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in the education of their children.9 The United States Supreme Court has noted
that “[t]he core of the statute . . . is the cooperative process that it establishes
between parents and schools.”10
The IDEA includes parents in the special education process in countless
ways, including, but not limited to, naming parents as equal members of their
children’s Individualized Education Program (“IEP”) teams,11
requiring school
districts to obtain parental consent before implementing special education
services,12
and allowing parents to seek independent educational evaluations at
public expense.13
By emphasizing the inclusion of parents, Congress has
established a system that values and relies upon parents’ ability to facilitate and
support the education of their children.
Explicitly foreseeing that parents might, on occasion, be excluded from the
9 Id. at 205-06.
10 Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 53 (2005) (citing Rowley, 458
U.S. at 205-06). 11
The term “IEP” refers to both a meeting and a document, which together form
the procedural cornerstones of the special education system. IEP team meetings
are the central vehicle for determining whether and how to provide a student with
special education services. IEP team members include special and general
education teachers, administrators, parents, and others with specialized and
particular knowledge of the student. This team identifies a student’s needs,
develops corresponding goals, determines what services are necessary to achieve
those goals, and decides the student’s school placement. These decisions are then
memorialized in a resulting IEP document. The team reconvenes at least annually
to review and update a student’s IEP document. See 20 U.S.C. § 1414. 12
20 U.S.C. § 1415(a)(1)(D). 13
20 U.S.C. § 1415(b)(1); 34 C.F.R. § 300.502(a).
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IEP process or disagree with the school district regarding the appropriate education
for their children, Congress created a detailed scheme of statutory remedies to
enable parents to rectify such situations.14
These remedies include a number of
safeguards that require affirmative action by parents. Most relevant to this case, in
order to ensure the integrity of the statutory scheme, Congress has provided parents
the right to pursue claims in an administrative due process hearing and the right to
appeal an adverse hearing decision to either state or federal court.15
Parents who
prevail in due process hearings at either level may recover reasonable attorneys
fees from school districts.16
These safeguards profit from the fact that “parents and guardians will not
lack ardor in seeking to ensure that handicapped children receive all of the benefits
to which they are entitled by the Act.”17
Indeed, “[p]arents of children with
disabilities are uniquely situated to identify and raise the legal issues related to
persistent noncompliance with IDEA.”18
When crafting the IDEA, Congress
capitalized on parents’ natural attunement and commitment to their children’s
education. Through its chosen method of enforcement, Congress has functionally
14
See, generally 20 U.S.C. § 1415. 15
20 U.S.C. § 1415(f)-(h); see also Elisa Hyman, Dean Hill Rivkin, & Stephen A.
Rosenbaum, How IDEA Fails Families Without Means: Causes and Corrections
From the Frontlines of Special Education, 20 J. Gender, Soc. Pol’y & L. 107, 112
(2011). 16
20 U.S.C. § 1415(i)(3)(B)(i)(I). 17
Rowley, 458 U.S. at 208-09. 18
Nat’l Council on Disability, Back to School on Civil Rights 370 (2000).
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11
deputized parents as private attorneys general who are necessary to achieve proper
effectuation of the IDEA.
As the United States Supreme Court has held, “the plaintiff is the chosen
instrument of Congress to vindicate ‘a policy that Congress considered of the
highest priority.’”19
Because of its choice to deputize parents, when courts address
IDEA claims, parents should be appreciated as the chosen instruments of Congress.
This choice also implicitly acknowledges that relying on government actors alone
will not always be sufficient to provide a free and appropriate public education to
children with special education needs. For this reason, Congress legislated in such
a way that ensures “that handicapped children and their parents or legal guardians
[will] be able to participate in the due process system and have access to the full
range of remedies to protect their educational rights on an equal par with the
school districts.”20
This choice to frame the IDEA’s enforcement mechanisms
around the rights and responsibilities of parents demonstrates that Congress not
19
Christiansburg, 434 U.S. at 418 (citing Newman v. Piggie Park Enters., Inc.,
390 U.S. 400, 402 (1968)). The court when on to say that “. . . when a district
court awards counsel fees to a prevailing plaintiff, it is awarding them against a
violator of federal law.” However, “these policy considerations which support the
award of fees to a plaintiff are not present in the case of a prevailing defendant.”
Piggie Park, 390 U.S. at 402. 20
131 Cong. Rec. 21,391 (1985) (statement of Sen. Edward M. Kennedy)
(emphasis added). The IDEA was initially passed as the Education for All
Handicapped Children Act of 1975, Pub. L. No. 94-142, § 1 (1975), but was
renamed in 1990. Members of Congress specified that their “original intent was
that due process procedures, including the right to litigation if that became
necessary, be available to all parents.” S. Rep. No. 99-112, at 2 (1985).
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only believes in the intrinsic value of parental participation, but also believes it to
be necessary to achieving the goals of the IDEA.
II. SANCTIONING THIS AWARD OF ATTORNEYS FEES TO
CAPISTRANO WILL UNDERMINE THE INTEGRITY AND
EXECUTION OF THE IDEA.
Given that parents play a necessary and critical role to achieve proper
enforcement of the IDEA, their participation should be encouraged, not stymied.
As discussed below, awarding attorneys fees against parents in circumstances such
as in the instant matter will vitiate the structure and purpose of the IDEA by
preventing many from seeking redress at either the administrative or judicial level.
By properly confining awards of attorneys fees to school districts for only the most
egregious of circumstances, courts can buttress parent participation, and therefore
the IDEA itself.
A. Confirming this Award of Attorneys Fees Would Chill Parent
Participation in the Special Education Process at a Time When the
Statute Is Already Under-Enforced.
Proper effectuation and enforcement of the IDEA hinges on parents
affirmatively invoking their rights and safeguards. Parents will no longer be
willing to take these important steps if doing so puts them at unreasonable and
unpredictable risk of paying attorneys fees to a prevailing school district.
Already, the high cost of legal services prevents many parents from
obtaining representation in IDEA matters because “[t]heir financial situations . . .
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typically do not permit sustained private legal action, and not enough public
resources are available to assist them.”21
Requiring parents to pay prevailing
school districts’ attorneys fees under anything but the most egregious of
circumstances would compound this problem by making the financial risk of
pursuing – or in this case defending against – IDEA claims prohibitively
expensive. Parents, particularly poor parents such as amici’s clients, would be
“extremely reluctant to initiate litigation for fear of being charged with a fee award
vastly exceeding the expected recovery, and in some cases their ability to pay.”22
For example, here the District Court has ordered C.W. to pay more than
$94,000 dollars to Capistrano.23
The median annual income in Orange County,
California, where Capistrano is located, is only $84,100.24
Families that amici
would serve in that same geographical area would collectively earn, at most,
$45,750 to support a family of four.25
Many would earn far less with much larger
households. For amici’s clients, incurring fee awards like the one imposed by the
District Court would be absolutely devastating. The unreasonable and
unpredictable risk of liability for attorneys fees created by the District Court’s
21
Nat’l Council on Disability, supra note 18, at 370. 22
Coates v. Bechtel, 811 F.2d 1045, 1049 (7th Cir. 1987). 23
Order Granting Def.’s Mot. for Att’y Fees, Dec. 5, 2012, ECF No. 55. 24
FY 2013 Income Limits Documentation System, Hous. Urban Dev.,
http://www.huduser.org/portal/datasets/il/il2013/2013summary.odn (select
“Orange County, CA HUD Metro FMR Area” on drop down menu; then follow
“Select HMFA Income Limits Area” hyperlink) (last visited Jun. 2, 2013). 25
Id.
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order—especially considering parents’ unfavorable odds26
—would dissuade most
parents amici serve from pursuing valid IDEA claims. Chilling parental
enforcement of the IDEA comes with a high price but no gain. As this Court
acknowledged, “[t]he chilling effect upon civil rights plaintiffs would be
disproportionate to any protection defendants might receive against the prosecution
of meritless claims.”27
Chilling parent participation is also especially dangerous considering that the
IDEA is already an under-enforced statute. Although parents are the frontline
enforcers of the IDEA, the statute also requires states to monitor the provision of
special education services in school districts. Unfortunately, California has failed
to comply with the IDEA’s standards for over two decades due to “federal-level
ineffectiveness.”28
“Despite the establishment of state corrective action plans,
resulting from several years of federal monitoring between 1980 and 1996, the
26
See Ruth Colker, California Hearing Officer Decisions (Pub. L. & Legal Theory
Working Paper Series No. 185, 2013), available at
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2201589 (finding that, overall,
parents prevail in California administrative hearings only thirty-six percent of the
time, and only five percent of the time without attorney representation). See also
James R. Newcomer & Perry A. Zirkel, An Analysis of Judicial Outcomes of
Special Education Cases, 65 Exceptional Children 469, 474 (1999) (finding that, in
a nationwide survey, school districts prevailed in sixty percent of administrative
due process proceedings). 27
Mitchell v. Office of L.A. Cnty. Superintendent of Sch., 805 F.2d 844, 848 (9th
Cir. 1986). 28 Patricia A. Massey and Stephen A. Rosenbaum, Disability Matters: Toward A
Law School Clinical Model for Serving Youth with Special Education Needs, 11
Clinical L. Rev. 271, 276 (2005).
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California school system continues to be plagued by a variety of problems that
stand in the way of the core IDEA entitlement[s].”29
In fact, the California
Department of Education is currently facing suit in federal court for its alleged
failure to adequately monitor school districts and ensure that students with
disabilities receive a free and appropriate public education pursuant to the IDEA.30
Yet this problem is by no means unique to California. In its 2008 annual
report to Congress, the United States Department of Education found that only nine
states met the requirements for the provision of services to school-aged children
under the IDEA.31
The remaining states were determined to need either assistance
or intervention.32
Without adequate governmental enforcement, the primary burden to
effectuate and enforce the IDEA falls on parents. In a report to the White House,
the National Research Council found that “as a result of twenty-five years of non-
enforcement by the Federal Government, parents are still a main enforcement
vehicle for ensuring compliance with the IDEA.”33
Parents are the backstop on
29
Id. 30
Morgan Hill Concerned Parents Assoc. v. Cal. Dep’t. of Educ., 2013 WL
1326301 (E.D. Cal. Mar. 29, 2013). 31
U.S. Dep’t. of Educ., Thirtieth Annual Report to Congress On the
Implementation of the Individuals with Disabilities Education Act 163 (2008),
available at: http://www2.ed.gov/about/reports/annual/osep/2008/parts-b-
c/index.html. 32
Id. 33
Nat’l Council on Disability, supra note 18, at 351.
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which IDEA enforcement depends. If an unreasonable and uncertain threat of
attorneys fees chills their utilization of the IDEA’s procedural safeguards, the
practical reality would mean not just under-enforcement, but non-enforcement.
B. Confirming this Award of Attorneys Fees Would Prevent Parents From
Obtaining Legal Representation, Disproportionately Impacting Poor
and Minority Families and Widening the Enforcement Gap.
Increasing the risk of school district fee awards by weakening the certain
and reasonable standard established by the IDEA would inevitably shrink the
already low number of attorneys that represent parents in IDEA matters, such as
amici.
In Prescott, the Court accurately noted that, just as parents would be
dissuaded, “[l]awyers would be improperly discouraged from taking on potentially
meritorious IDEA cases if they risked being saddled with a six-figure judgment for
bringing a suit where they have a plausible, though ultimately unsuccessful,
argument.”34
Lowering the IDEA’s threshold for awarding fees against parents, as
the District Court has done here, would prevent special education advocacy
organizations like amici from fulfilling their missions because they could not
afford the financial risk. Amici are representative of a significant portion of the
special education advocacy bar, which is predominantly comprised of legal service
34
See R.P. ex rel. C.P. v. Prescott Unified Sch. Dist., 631 F.3d 1117, 1126 (9th Cir.
2011).
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organizations and non-profit firms.35
These attorneys are few in number and
constrained by limited funding to support the provision of free or significantly
reduced cost legal services to traditionally disadvantaged and underserved
populations, such as poor and minority parents.36
Special education advocacy organizations throughout the nation have
already reported turning away anywhere from sixty to ninety-seven percent of
requests for substantive legal advocacy.37
Without the help of attorneys, parents
will have to either abandon meritorious claims or proceed pro se, with little hope
of succeeding at either the administrative or judicial level.38
This will leave
parents that choose to proceed unrepresented at even greater risk of incurring fee
awards, and will burden the courts with unsavvy pro se litigants.
35
The special education advocacy bar also includes some solo practitioners and
small for-profit firms, and a few pro bono attorneys at large law firms. See About
COPAA, Council of Parent Attorneys & Advocates (last visited May 17, 2013),
http://www.copaa.org/?page=about. 36
A 2009 Legal Services Corporation national study found that there is one legal
aid attorney available for every 6,415 low-income people. In contrast, “there is
one attorney providing personal legal services . . . for every 429 people in the
general population who are above the LSC poverty threshold.” Legal Servs. Corp.,
Documenting the Justice Gap in America: The Current Unmet Civil Legal Needs of
Low-Income Americans 1 (Sept. 2009). 37
Brief for the Autism Soc’y of Am. et al. as Amici Curiae in Support of
Petitioners at 6-8, Winkelman ex rel. Winkelman v. Parma City Sch. Dist., 550 U.S.
516 (2007) (No. 05-983), 2006 WL 3740367. See Also Legal Servs. Corp., supra
note 36 (finding that programs funded by the Legal Services Corporation must turn
away fifty percent of people seeking legal assistance due to insufficient resources). 38
Colker, supra note 26 (finding that unrepresented parents prevail only five
percent of the time, a thirty-one percent drop from the rate of represented parents).
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In addition to circumscribing parents’ ability to secure legal representation
in IDEA matters, affirming the District Court’s murky threshold for awarding
attorneys fees against parents would undermine Congress’s distinct efforts to
distribute educational resources equitably.39
The plain language of the IDEA
reveals Congress’s belief that “[a] more equitable allocation of resources is
essential for the Federal Government to meet its responsibility to provide an equal
educational opportunity for all individuals.”40
To achieve the goal of evenly
allocating educational resources across diverse populations, the IDEA, among
other things, focuses extra efforts on students whose first language is not English.41
It also funnels more federal funding to states with larger populations of low-
income students.42
Additionally, the recently established Equity and Excellence
Commission is tasked with considering “how the Federal government can increase
educational opportunity by improving school funding equity.”43
These affirmative
steps by Congress demonstrate that equitable distribution of educational resources
is a high priority.
39
See Eloise Pasachoff, Special Education, Poverty, and the Limits of Private
Enforcement, 86 Notre Dame L. Rev. 1413, 1417 (2011). 40
20 U.S.C. § 1400(c)(7). 41
Id. at § 1400(c)(10)-(13). 42
Id. at § 1411(a)(2), (d)(3)(a). 43
See Equity and Excellence Commission, 75 Fed. Reg. 48,661 (Aug. 11, 2010),
available at https://federalregister.gov/a/2010-19800.
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Despite the IDEA’s efforts to achieve equitable distribution, wealthy
families routinely use the IDEA’s private enforcement mechanisms more than poor
parents.44
This is not because a greater number of special education students come
from wealthier families. In fact, the majority of children eligible for special
education services are from low-income families: one quarter of IDEA-eligible
children live below the poverty line and two-thirds live in households with
incomes of fifty thousand dollars or less.45
Rather, the disparity in IDEA
enforcement stems from the fact that “families with more financial (and perhaps
more educational) resources are better situated to pursue their rights under the
IDEA.”46
If the number of attorneys providing free or discounted legal services
decreases—as it inevitably would with an increased risk of fee awards against
parents—even fewer poor and minority parents would be able to pursue IDEA
claims, worsening the existing enforcement disparity.
This enforcement disparity is particularly alarming because poor and
minority parents may have the greatest need for legal representation in IDEA
proceedings. Informational and positional asymmetries between parents and
44
Pasachoff, supra note 39, at 1418. 45
Hyman, Rivkin, & Rosenbaum, supra note 15, at 112. These numbers are due,
in part, to the overrepresentation of minority students in special education
programs. See Margaret M. Wakelin, Challenging Disparities in Special
Education: Moving Parents from Disempowered Team Members to Ardent
Advocates, 3 Nw. J. L. & Soc. Pol’y 263, 270 (2008). 46
Pasachoff, supra note 39, at 1427.
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school districts disadvantage all parents in special education matters, but especially
those parents who have less education, sophistication, and English-language
fluency. “The balance of power in [the special education] relationship is
significantly tipped towards the parties with knowledge”47
and school districts,
being repeat players in the special education system, have both institutional and
experiential knowledge.48
In addition, “[i]n high-poverty and minority schools . . .
parent advocacy is less likely to occur and parents are more likely to feel
intimidated by the IDEA’s due process system.”49
Compared to wealthier parents,
low-income parents may have more trouble recognizing when their rights under the
IDEA have been violated.50
Because parents in poor and minority communities are
more vulnerable to the IDEA’s predisposition to favor repeat players such as
school districts, they are in greater need of access to legal representation.
Amici work with these at-risk populations and serve these parents who are
otherwise unable to afford or access legal services. Yet amici, like parents, could
not swallow steep awards of attorneys fees and would have to turn away an even
47
Id. 48
Marc Galanter coined the term “repeat players” to refer to institutional actors in
our legal system who have more experience and lower stakes. See Mark Galanter,
Why the “Haves” Come out Ahead: Speculations on the Limits of Legal Change, 9
L. & Soc’y Rev. 95, 97 (1974). At the other end of the spectrum are “one-
shotters” who have less experience and higher stakes. Id. In the context of the
IDEA, school districts are repeat players and parents are one-shotters. 49
Wakelin, supra note 45, at 271. 50
Pasachoff, supra note 39, at 1439.
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greater percentage of requests for legal assistance if the Court endorses the District
Court’s low and murky threshold for fee awards against parents. By curtailing
access to legal representation for those who need it the most, upholding the District
Court’s order would undermine the integrity of the IDEA’s enforcement
mechanisms and subvert its admirable equalizing efforts.
III. AFFIRMING THE DISTRICT COURT’S AWARD OF ATTORNEYS
FEES WOULD UNDERMINE CONGRESS’S EXPRESS INTENTION
THAT THE IDEA’S FEE-SHIFTING PROVISION BE TREATED
LIKE THAT OF A CIVIL RIGHTS STATUTE.
The fee-shifting provision of the IDEA is notably pegged to a well-settled
civil rights standard. This was no accident; when amending the IDEA to allow for
the collection of attorneys fees, Congress made very clear that it intended the
Christiansburg Garment standard to apply to prevailing school districts.
Congress’s choice has two important implications. First, the IDEA’s fee-shifting
provision must be treated like that of a civil rights statute. Second, ultimate
success on the merits cannot be the yardstick against which the value of a parent’s
claim is measured for fee-shifting purposes.
A. Courts Must Effectuate Congress’s Clear Decision to Model the IDEA’s
Fee-Shifting Provision on the Christiansburg Garment Standard.
Congress’s efforts to evoke civil rights statutes in the fee-shifting provision
of the IDEA are readily apparent in both the IDEA’s legislative history and the
statutory text.
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Prevailing parents have been able to recover attorneys fees under the IDEA
since 1984.51
The relevant amendment came in direct response to the United States
Supreme Court’s decision in Smith v. Robinson, which held that fees were
unavailable under the IDEA.52
Congress, finding this decision to be inequitable,
immediately amended the statute to allow prevailing parents to recover “reasonable
attorneys’ fees” from school districts.53
As this Court has observed, “the IDEA's
fee-shifting provision . . . is nearly identical to [Section] 1988.”54
More recently,
in Prescott this Court reiterated its commitment to interpreting the IDEA within
this clear civil rights framework.55
The parallel language unquestionably
establishes that “[t]he standards governing the award of attorneys’ fees under
[Section] 1988 are applicable to awards under the IDEA.”56
Like this general civil
rights provision, parents need only prevail under the IDEA—nothing more—in
order to recover their attorneys fees.
51
See 20 U.S.C. § 1415(i)(3)(B)(i)(I). 52
468 U.S. 992, 1021 (1984). 53
See Handicapped Children’s Protection Act of 1986, Pub. L. No. 99-372, 100
Stat. 796 (codified as amended at 20 U.S.C. § 1415 (2006)). 54
Aguirre v. L.A. Unified Sch. Dist., 461 F.3d 1114, 1117 (9th Cir. 2006)
(emphasis added) (referencing 42 U.S.C. § 1988). 55
631 F.3d at 1124 (citing Aguirre, 461 F.3d at 1117) (“We’ve previously noted
that the language of the IDEA’s fee-shifting statute is ‘nearly identical’ to 42
U.S.C. § 1988, the general fee-shifting provision for federal civil rights cases.”). 56
Kathleen H. v. Mass. Dep’t of Educ., 154 F.3d 8, 14 (1st Cir. 1998) (referencing
42 U.S.C. § 1988).
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It was not until 2004 that Congress modified the IDEA to allow prevailing
school districts to seek reasonable attorneys fees and, even then, it circumscribed
their ability to seek fees to two narrow sets of circumstances: (1) when the attorney
of a parent pursues a cause of action that is frivolous, unreasonable, or without
foundation; or (2) when the parent’s cause of action was presented for any
improper purpose.57
First, the IDEA’s fee-shifting provision allows prevailing school districts to
collect fees from “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.”58
In crafting this prong of the fee-
shifting provision, Congress deliberately bound it to the standard used in civil
rights cases:
“[T]his bill incorporate [sic] for the first time, well established civil rights
guidelines setting forth the rare circumstances when school districts can
recover fees from parents or their attorney’s [sic]. These standards were
developed in Christiansburg Garment Co., v. EEOC, 1978.”59
57
20 U.S.C. § 1415(i)(3)(B)(i)(II)-(III). 58
Id. at § 1415(i)(3)(B)(i)(II). Notably, this prong does not allow the recovery of
fees from parents themselves. 59
150 Cong. Rec. 11,453 (2004) (statement of Sen. Edward M. Kennedy). In
Christiansburg Garment, the United States Supreme Court held that while parents
in Title VII cases need only prevail to seek reasonable attorneys fees, a court may
only “award attorney’s fees to a prevailing defendant . . . upon a finding that the
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Although the Christiansburg Garment standard is well established, this
prong of the IDEA’s fee-shifting provision has not been extensively litigated.
Those courts that have interpreted this prong of the IDEA have endorsed
application of the Christiansburg Garment standard.60
This Court, in particular,
acknowledged that standard in Prescott.61
Similarly, the Second Circuit explicitly
acknowledged the judiciary’s responsibility to effectuate Congress’s intentions in
this manner when administering the IDEA:
“[w]ith respect to prevailing-defendant educational agencies . . . Congress
explicitly adopted the standard . . . established in Christiansburg Garment.
. . . [I]n interpreting fee-shifting statutes and determining the applicable
standard for cabining judicial discretion to award attorney’s fees, the
Supreme Court has considered the policies and goals of the relevant
statute.”62
This approach appreciates that the objective of interpreting any federal statute is to
effectuate congressional intent.63
As such, courts facing attorneys fees requests
plaintiff's action was frivolous, unreasonable, or without foundation, even though
not brought in subjective bad faith.” 434 U.S. at 421. 60
See, e.g., Sagan v. Sumner Bd. of Educ., 501 Fed. Appx. 537, 541 (6th Cir.
2012); Doe ex rel. Doe v. Attleboro Pub. Sch., No. 1:12-CV-10266-DJC, 2013 WL
1002249 at *12 (D. Mass. Mar. 14, 2013); Oakstone Cmty. Sch. v. Williams, No.
2:11-CV-1109, 2012 WL 4051322 at *4 (S.D. Ohio Sept. 13, 2012); Taylor P. ex
rel. Chris P. v. Miss. Dep’t. of Elementary & Secondary Educ., No. 06-4254-CV-
C-NKL, 2007 WL 2907825 at *40 (W.D. Mo. Oct. 3, 2007). 61
Prescott, 631 F.3d at 1125. 62
Mr. L. v. Sloan, 449 F.3d 405, n.2 (2d Cir. 2006). 63
See Takao Ozawa v. U. S., 260 U.S. 178, 194 (1922) (“It is the duty of this Court
to give effect to the intent of Congress.”); Fort Ord Toxics Project, Inc. v. Cal.
E.P.A., 189 F.3d 828, 834 (9th Cir. 1999) (“Our job is to effectuate Congressional
intent as expressed in the statutory text.”).
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under this prong of the IDEA’s fee-shifting provision should follow this Court’s
lead by effectuating Congressional intent through appropriate application of
Christiansburg Garment.64
Although demanding, the Christiansburg Garment standard provides courts
with adequate recourse for addressing those few claims that are utterly without
merit or brought for an intentionally improper purpose. When a court believes it is
facing such a claim, the proper question is “whether the case is so lacking in
arguable merit as to be groundless or without foundation.”65
Answering this
question involves a very fact-specific inquiry and these decisions “are to be made
on a case-by-case basis.”66
There is no hard and fast rule for evaluating these
situations;67
“[a]n award of attorney fees against a losing plaintiff in a civil rights
action is an extreme sanction, and must be limited to truly egregious cases of
misconduct.”68
In the context of the IDEA, the Christiansburg Garment standard allows for
awards to prevailing school districts only when the specific facts of a particular
case are so egregious as to warrant this drastic remedy. As legislative history
64
See Hawkins v. Berkeley Unified Sch. Dist., 250 F.R.D. 459, 464 (N.D. Cal.
2008) (noting that when amending the IDEA, “Senator Kennedy specifically
recited the Christiansburg standard”). 65
Jones v. Tex. Tech. Univ., 656 F.2d 1137, 1145 (5th Cir. 1981). 66
Sullivan v. Sch. Bd. of Pinellas Cnty., 773 F.2d 1182, 1189 (11th Cir. 1985). 67
Id. 68
Riddle v. Egensperger, 266 F.3d 542, 547 (6th Cir. 2001) (citing Jones v. Cont’l
Corp., 789 F.2d 1225, 1232 (6th Cir.1986)).
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indicates, “[d]efendants can only get fees against a parent’s attorney if the case is
wholly without legal merit and against parents only in the most egregious case
where the parent acts in bad faith, knowingly filing a complaint for the sole
purpose of embarrassing or harassing the school district.”69
By adopting the
Christiansburg Garment standard into the IDEA, Congress has imposed a heavy
burden on those school districts attempting to collect attorneys fees under this
prong of the IDEA’s fee-shifting provision. That burden has not been met in the
instant case.
Second, the IDEA’s fee-shifting provision sets forth another, even more
limited category of cases in which prevailing school districts may seek and recover
fees. Specifically, school districts may seek fees “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.”70
This is the only prong of the fee-
shifting provision that allows for awards against parents themselves. Perhaps for
that very reason, this prong requires an even greater showing by a prevailing
school district.
69
150 Cong. Rec. 11,453 (2004) (statement of Sen. Edward M. Kennedy)
(emphasis added). 70
20 U.S.C. § 1415(i)(3)(B)(i)(III).
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As this Court articulated in Prescott, “[a]s a matter of law, a non-frivolous
claim is never brought for an improper purpose.”71
Accordingly, when analyzing
whether a parent’s claim is improper, courts must first determine whether the claim
is potentially meritorious. If so, it cannot be improper. Thus, as a matter of law, a
prevailing school district must always satisfy the Christiansburg Garment test,
regardless of which prong of the fee-shifting provision it is attempting to invoke.
If able to clear this stringent threshold, a prevailing district must then show that the
claim was intentionally brought to harass, waste time or impose costs on the school
district.72
Put another way, the IDEA requires that courts must be absolutely sure
that a parent’s claim is utterly without merit and truly vexatious before awarding
fees to prevailing school districts under the third prong. Here, the district brought
the underlying administrative case against the parent and student. Given the
IDEA’s purpose and framework, it is hard to see how a defendant parent could be
found to have brought a claim on appeal that is utterly without merit and for the
purposes of vexatious and intentional harassment.
71
631 F.3d at 1126 (citing Townsend v. Holman Consulting Corp., 929 F.2d 1358,
1362 (9th Cir. 1991). 72
Although the District Court found “frivolity” to be present, it failed to
appropriately apply the Christiansburg Garment standard to determine whether the
defendant parent’s claims were so utterly lacking merit, thus undermining its
analysis of the school district’s right to fees under both prongs of the IDEA’s fee-
shifting provision.
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Prevailing school districts’ ability to seek attorneys fees may be of recent
vintage, but the applicable legal standard is not. The Christiansburg Garment test
sets a high and well-established bar, which Congress purposefully imported into
the IDEA. This standard permeates and controls both prongs that allow prevailing
school districts to collect fees against parents. Recognizing that awarding fees
against parents is counterintuitive to the IDEA’s underlying purpose, Congress has
reserved such awards for only the most extreme and egregious situations to ensure
courts only reprimand true abuse of the judicial system. No such abuse has
occurred in this case, leaving this Court with the opportunity – and duty – to
correct the District Court’s misapplication of a well-settled standard.
B. Courts Must Not Let Whether Parents Prevail Cloud Their Application
of the Christiansburg Garment Standard.
Courts must make a clear distinction between a claim that fails and a claim
that is frivolous under Christiansburg Garment. A claim cannot be frivolous
simply because the parent fails to state a claim for relief or because no reasonable
jury could find in her favor.73
Similarly, “district court[s] [must] resist the understandable temptation to
engage in post hoc reasoning by concluding that, because a plaintiff did not
ultimately prevail, his action must have been unreasonable or without
73
Hughes v. Rowe, 449 U.S. 5, 15-16 (1980) (“Allegations that, upon careful
examination, prove legally insufficient to require a trial are not, for that reason
alone, ‘groundless’ or ‘without foundation’ as required by Christiansburg.”).
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foundation.”74
“This kind of hindsight logic could discourage all but the most
airtight claims, for seldom can a prospective plaintiff be sure of ultimate
success.”75
Fee awards against losing plaintiffs are therefore inappropriate where there
is no clear law on the issue or there exists a reasonable argument for extending or
changing existing law.76
“Even when unsuccessful, such suits provide an
important outlet for resolving grievances” and “create[] respect for law.”77
It is for this reason that fees are available in civil rights cases to all
prevailing plaintiffs, but only to defendants who face frivolous suits.78
“This
policy was adopted expressly in order to avoid discouraging civil rights plaintiffs
from bringing suits, and thus ‘undercut[ting] the efforts of Congress to promote the
vigorous enforcement of’ the civil rights laws.”79
74
Christiansburg Garment, 434 U.S. at 421-22. 75
Id. at 422. 76
Int’l Bhd. of Teamsters v. Silver State Disposal Serv., Inc., 109 F.3d 1409, 1412
(9th Cir. 1997) (quoting Parks Sch. of Business, Inc. v. Symington, 51 F.3d 1480,
1489 (9th Cir. 1995) (refusing to award attorneys fees where the Ninth Circuit had
not applied the underlying legal doctrine on which defendant prevailed in a
published opinion for more than a decade, and where there was a “dearth of case
law defining the precise contours of the exceptions to the doctrine.”)); Larez v.
Holcomb, 16 F.3d 1513, 1522 (9th Cir. 1994) (“[W]e must exercise extreme
caution in sanctioning attorneys under Rule 11, particularly where such sanctions
emerge from an attorney’s efforts to secure the court’s recognition of new rights.”). 77
Harris v. Maricopa Cnty. Sup. Crt., 631 F.3d 963, 971 (9th Cir. 2011). 78
Compare 20 U.S.C. § 1415(i)(3)(B)(i)(I), with id. § 1415(i)(3)(B)(i)(II)-(III). 79
Harris, 631 F.3d at 971 (quoting Christiansburg Garment, 434 U.S. at 422).
Civil rights organizations such as amici advance the law by taking calculated risks
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Allowing a failed argument or the ultimate outcome of a case to distort the
analysis of a school district’s right to recover attorneys fees, and worse using such
factors to invite school districts to seek fees, as this District Court has done twice
in recent months,80
undermines and misinterprets Congress’s clear intent to
generally protect parents as chosen instruments of Congress.
IV. CONCLUSION
When designing the IDEA, Congress chose to erect a statutory scheme that
first rests upon collaboration between school districts and parents, and second
relies upon parents to take action as functional private attorneys general if and
when that collaboration fails. Because of long-standing government under-
enforcement, parents have become the pillars on which the successful execution of
the IDEA rests. Indeed, without the necessary private enforcement by parents, the
purpose and integrity of the entire statute is at risk.
Affirming the District Court’s order would obfuscate the clear language of
the IDEA and corresponding Christiansburg Garment standard, and leave parents
and amici with a murky threshold for measuring the risk inherent in bringing even
the most meritorious and carefully selected cases. Such action would drastically
chill amici’s efforts to advance and protect the rights of students with disabilities,
and amici are careful to ensure that only viable arguments to advance the law are
brought. 80
See G.M. v. Saddleback Valley Sch. Dist., No. SACV 11-1449 DOC, 2012 WL
5947213 (C.D. Cal. Nov. 26, 2012).
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and risk the undoing of decades of important civil rights work in the education
arena. For these reasons, amici respectfully request that this Court reverse and
vacate the instant award of attorneys fees to Capistrano.
Dated: June 6, 2013 Respectfully submitted,
By: s/ .
Carly J. Munson
YOUTH & EDUCATION LAW PROJECT
MILLS LEGAL CLINIC
STANFORD LAW SCHOOL
559 Nathan Abbott Way
Stanford, CA 94305
Telephone: (650) 724-1900
Attorneys for Amici Curiae
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Certificate of Compliance
I hereby certify that this brief complies with the type-volume limitation of
Fed. R. App. P. 32(a)(7)(B) because this brief contains 6,293 words, excluding the
tables, certificates, disclosures, and prefatory interests of amici.
June 6, 2013 By: s/ .
Carly J. Munson
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I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system on (date) . I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system.
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12-57315
Jun 6, 2013
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