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Attorneys’ Fees and the Individuals with Disabilities Education Act

Myths and Realities

January 27, 2004

In 1986, Congress added provisions to the Individuals with Disabilities Education Act that allow parents of students with disabilities to receive reimbursement for their attorneys’ fees when a court or hearing officer determines that their child has been denied a free, appropriate public education.  In a 2000 publication, Back to School on Civil Rights, the National Council on Disability affirmed the reality that parents are the primary enforcers of IDEA.  The attorneys’ fees provision in the law is among the most important tool parents have to secure an appropriate education for their child. This document seeks to respond to concerns that have been raised about the attorneys’ fees provisions in IDEA.  CCD believes strongly that the current attorneys’ fees provisions in IDEA are appropriate and must not be altered.

Myth # 1: The attorneys’ fees provisions have resulted in an explosion of litigation.

Reality: IDEA litigation is decreasing. A recent GAO study[i] found that requests for hearings, generally the first step in any IDEA litigation, decreased between 1996 and 2000, the last year for which we have data. Overall, dispute resolution activity was relatively low, with only 5 due process hearings held per 10,000 students in special education.  A small percentage of due process hearings proceed further to court (2%)[ii].  Often  a  case must proceed all the way to court in order for parents of a student to obtain attorneys’ fees unless the state education agency (SEA) or local education agency (LEA) agrees to pay them as part of a settlement. 

Myth # 2:  Financially-strapped schools are reducing classroom services because they have to pay attorneys’ fees.

Reality:  Schools spend less than one-half of one percent of their special education resources on dispute resolution, including attorneys’ fees.    For the 1999-2000 school year, total spending on the entire dispute resolution process for special education, including mediation costs, was less than one half of one percent of the total spending on special education (.03%).[iii]  There are no data on the amount spent specifically on attorneys’ fees for students who are prevailing parties. However, as students only obtain fees when they win and little money is spent on due process overall, it simply cannot be the case that paying attorneys’ fees to students who are prevailing parties is an unreasonable expense that is taking funds out of the classroom. 

Myth # 3: Parents can drag out court cases because attorneys’ fees will be reimbursed.

Reality: IDEA includes sanctions to deter such action.  Attorneys’ fees are only awarded to parents who prevail.  Moreover, attorneys’ fees will be reduced if parents unreasonably protract the final resolution of a case, if the attorneys’ fees unreasonably exceed the prevailing rate in the community or if excessive time is spent by the attorney. The only exception is when the education agency itself unreasonably protracts the proceedings.

Myth # 4: Attorneys’ fees give parents an unfair advantage over schools.

Reality:  The exact opposite is true.  Parents assume the full financial risk when they set out to challenge the school system.  Schools frequently have staff attorneys who specialize in disability education law, and whose salaries are covered by taxpayer’s money.  Schools have access to taxpayer’s money to finance their court cases, including the cost of legal research and expert testimony. Some school districts also cover the costs of their own legal fees, as well of those of the parents if parents win, with insurance coverage.  It is only the possibility of receiving attorneys’ fees if they prevail that gives parents some chance of finding an attorney who will help them enforce IDEA on behalf of their child.

Myth # 5: Parents file hearing requests to push for services beyond that which schools are legally obligated. School districts settle for more than they are legally obligated to in order to avoid paying attorneys’ fees.

Reality:  There are no data to confirm whether parents are pushing for services beyond those required to ensure their child receives a free, appropriate public education.  Similarly, there are no data to confirm the number of parents who believe their child is not receiving a free, appropriate public education but who fear retribution from the school if they file a hearing request.   Attorneys’ fees are only awarded when a court  or hearing officer determines that the school denied the child a free, appropriate public education.  In addition, the hearing and mediation process were created to resolve disputes that arise when schools and parents disagree on what services, supports and placements are necessary for a child to receive a free, appropriate public education. In many instances, filing a hearing request results in a settlement with the school district. 

Once the hearing process begins, there are limitations on the amounts and circumstances under which attorneys’ fees can be awarded. For example, under current law, the school does not have to comply with the parent’s request for services, but can actually limit its attorneys’ fee risk by formally offering what the school believes is appropriate for the child.  If the parent rejects that offer, goes to hearing and wins only what the school originally offered or something less than what the school offered, parents cannot recoup all of their attorneys’ fees.  Schools are liable at most for fees accrued up to the date of the offer.   

Moreover, there are a number of options that a school district may use other than settling if the parent’s claim has insufficient legal merit. If the parent’s request was frivolous, the school district can obtain ITS fees and costs from the parent. 

Myth # 6: The legal standard for IDEA cases is so low that if a teacher or a principal makes one little mistake, like failing to invite someone to the Individualized Education Plan (IEP) meeting, the district is found liable in court.

Reality: Schools are not liable for procedural violations unless the mistake caused substantial harm to the student or his or her parents.  Thus, if the person who was not invited to the meeting was the parent, it is likely the district would be found liable for violating the parent’s right to participate in the creation of the IEP – a fundamental principle of the IDEA.  But if the overlooked party was not pivotal to the decision making process, probably the most severe penalty would be an order sending the case back for a “do over,” requiring that the IEP to be held with the proper participants.  Often no correction would be required at all.