Special Education Law 101 - Part XIV Attorney's Fees #attorney's fees

This is another in our ongoing series on the basics of special education law.  These posts are meant to be an introduction for those new to the field and a refresher for the seasoned veterans.

Attorney's Fees

A prevailing parent can generally get their attorney's fees from a court. IDEA §615(i)(1)(3).  They are not awarded by hearing officers but are awarded by the court.  Since 2004, a prevailing school district may get attorney's fees from a parent or parent's attorney if the case was frivolous or filed for improper purposes. IDEA §615(i)(1)(3)(b)(ii)and(iii).

Expenses-Expert witness fees

                             In Arlington Cent. Sch. Dist Bd. of Educ v. Murphy   540 U.S. 291, 126 S.Ct. 2455, 45 IDELR 267 (6/16/06) the Supreme Court ruled that a parent who prevails in an IDEA case is not entitled to recover expert witness fees under the Act’s provision allowing recovery of reasonable attorney’s fees and costs. The parents cited the legislative history of the Act- including the joint statement of the House/Senate Conference Committee which stated that “The conferees intend the term ‘attorney’s fees as part of the costs’ to include reasonable expenses and fees of expert witnesses...”  The 6-3 majority of the Court, however, rejected the parents’ argument, holding that “costs” is a legal term of art which does not generally encompass expert witness fees.  BecauseCongress used the legal term of art “costs,” rather than “expenses,” the Court found that there is no need to review the legislative history.  Thus the Court held that a prevailing parent in an IDEA case is not entitled to be reimbursed for expert witness fess.

              But See, MM & EM ex rel SM v Sch Dist of Philadelphia 66 IDELR 181 (ED Penna 11/3/15) Mgst recommended that parent be awarded IDEA expert witness fees under §504. Finding that a denial of IDEA FAPE is sufficient- no intentional discrimination necessary where parent had waived compensatory damages- and expert witness fees are available under 504; MW & DB-W ex rel DW v Sch Dist of Philadelphia 68 IDELR 36 (ED Penna 7/22/16) Where parents had proven IDEA violation of denial of FAPE, Court awarded expert witness fees under §504.

DeVoss Feels That IDEA Regs Are Cumbersome And Congressional Funding Is Inadequate #DeVoss

In a recent interview, Secretary of Education, Betsy DeVoss stated that special education regulations continue to get piled on and that they are cumbersome and burdensome for school districts. She also stated that it would be fair to ask Congress what adequate funding levels from the feds should be. 

You can review the Education Week article here. The entire interview is available here.

Your thoughts?

Weekly Question!

How will courts and hearing officers interpret Endrew F? #FAPE

Weekly Question!

How will courts and hearing officers interpret Endrew F? #FAPE

Special Education Law - Part XIII #lawyers

This is another post in our ongoing series on the basics of special education law.  Please let us know how you are enjoying this series.  We feel that this is a good introduction for newbies and a good refresher for seasoned pros.  

The federal regulations implementing IDEA provide that parties to due process hearings have a right to be accompanied by legal counsel and by individuals with special knowledge or training with respect to the problems of kids with disabilities "...except that whether parties have the right to be represented by non-attorneys at due process hearings is determined under State law." 34 C.F.R. §300.512.  This regulation was changed a few years ago to reverse a previous long standing policy of the department of Education that had permitted non-attorney advocates to fully represent parents in the past. To be clear a parent may still have an advocate present to advise her, but the advocate may not be able to represent the parent depending upon state law.

There is one US Supreme Court decision concerning legal representation: 

In Winkelman by Winkelman v. Parma City Sch. Dist  550 U.S. 516, 127 S.Ct 1994,  47 IDELR 281 (5/21/2007) the Supreme Court ruled by a 7 to 2 margin that the IDEA grants independent enforceable rights to parents as well as students.  Accordingly, the court concluded that parents may pursue their own IDEA appeals in federal court without being represented by an attorney.  NOTE: This decision applies only to federal court appeals of due process decisions.  All parties agreed that a parent may appear at a due process hearing without counsel. Also many courts have held that a parent must retain legal counsel to assert their child's rights in federal court.


See also, Rideau ex rel TR v Keller Independent Sch Dist 819 F.3d 155, 67 IDELR 166 (5^th Cir 4/5/16) Fifth Circuit declined to extend Winkleman to grant parents a cause of action under §504 or ADA for their anguish resulting from mistreatment of their child by a teacher

Sometimes My Job Is Pretty Cool #WhereIsJG?

Weekly Question!

How will courts and hearing officers interpret Endrew F? #FAPE

Special Education Law 101 - Part XII #stay put

This is another post in our ongoing series on the basics of special education law.  Please let us know how you are enjoying this series.  We feel that this is a good introduction for newbies and a good refresher for seasoned pros.  

Today we talk about the stay put provision- one of the basic concepts in this area of the law, yet also one of the most misunderstood. It only applies when a due process hearing is pending.

Stay Put

              IDEA § 615 (j) provides that (except in certain discipline cases), during the pendency of any due process or court proceedings pursuant to this section, unless the parties agree otherwise, the student ‘…shall remain in the then-current educational placement of the child…”  This is commonly referred to as the stay put provision.  The stay put placement is the last agreed upon IEP, unless the parties agree otherwise. See 34 C.F.R. § 300.518.

              The Supreme Court interpreted and endorsed the stay put decision in the case of Honig v. Doe 484 U.S. 305, 108 S.Ct. 594, 559 IDELR 231 (1988).  In that decision, the Supreme Court, noting the Congressional intent in preventing the exclusion of disabled students and reiterating the importance of the procedural safeguards under the IDEA, refused to read a dangerousness exception into the stay put provision.  Honig v. Doe, supra.  (NOTE; please note that IDEA’04 now has provisions pertaining to danger/injury.)

              John M. by Christine M & Michael M v. Bd of Educ of the Evanston Township HS Dist No. 202 502 F.3d 708, 48 IDELR 177 (7th Cir. 9/17/7) The Seventh Circuit noted that determining “then current educational placement’ is an inexact science requiring a fact driven approach.  Respect for the purpose of the stay put provision requires focus upon the child’s educational needs so the educational status quo for a “growing, learning, young person” often makes rigid adherence to a particular educational methodology an impossibility.  Stay put, therefore, requires flexibility in interpreting the educational placement per the last agreed upon IEP and flexibility concerning the child’s needs. CS by Julia V v Lansing Sch Dist #158 115 LRP 31079 (ND Ill 1/23/15) quoting John M, court held that a stay put educational placement falls somewhere between the physical school attended by the child and the abstract goals of his IEP and courts use a fact-driven approach to determine whether a change of placement has occurred. Here court found agreed upon placement was stay put.

                 In other Circuit Court decisions: KD by CL v. Dept of Educ, State of Hawaii 58 IDELR 2 (9th Cir 12/27/11) Ninth Circuit held that the language of a settlement agreement prevented a private school from being the “as agreed” stay put placement.  The agreement provided that the LEA would pay for a private school program for a specific period of time rather than merely agreeing to place the child in a private school. Therefore, LEA had no obligation to pay for the private school after the period of time designated in the agreement lapsed; and in Anchorage Sch Dist v. MP by MP 689 F.3d 1047, 59 IDELR 91 (9th Cir 7/19/12) Ninth Circuit ruled that the school district denied FAPE by failing to conduct IEPT meetings at least once per year despite a number of dphs and complaints pending by the parents.  Stay put did apply, but stay put only affects the educational program in general, and the IEPT could have discussed other items.

                       MR & JR ex rel ER v. Ridley Sch Dist 744 F.3d 112, 62 IDELR 251 (3d Cir 2/20/14)  Third Circuit held that stay put applies through the final resolution of the case. The Third Circuit held that stay put does not end with a district court decision adverse to the parents, but continues through the appeals process. Thus where an IDEA ho approves a unilateral placement by a parent, stay put takes effect and remains until the appeals are over. Reversal by a district court of a ho decision that the parent’s appropriate placement is necessary to meet the child’s needs does not release the school district’s obligation to pay until the appeal is concluded because stay put accrues when the dispute arises- not when the parent’s request reimbursement. The premise of IDEA is that parents and schools working together is the ideal way to reach the statutory goal of FAPE for every child, but Congress recognized that the collaborative process may break down. Stay put maintains the educational status quo. To determine the then current educational placement, courts look at the IEP actually functioning when stay put is invoked. Parents do not have to request stay put or reimbursement for stay put to apply(NOTE: The U S Supreme Court flirted with the notion of reviewing this case and requested a brief from the Solicitor General, but recently decided not to decide this one.) See our post on the Supreme Court denial of certiorari here. 

       Doe ex rel Doe v East Lyme Bd of Educ 790 F.3d 440, 65 IDELR 255 (Second Cir 6/26/15) Parent argued that SD violated stay put by failing to provide the related services of speech therapy and OT. District court agreed but limited relief only to money that the parent had already paid out for the related services to avoid awarding money damages which are not available under IDEA. Second Circuit reversed holding that the parent was entitled to the full value of the related services.

Happy Labor Day #workers

Happy Labor Day. Today we celebrate those who work for a living!

Here are some relevant Labor Day facts from our friends at the U. S Census Bureau:

The first observance of Labor Day was likely on Sept. 5, 1882, when some 10,000 workers assembled in New York City for a parade. The parade inspired similar events across the country, and by 1894 more than half the states were observing a “workingmen’s holiday” on one day or another. Later that year, with Congress passing legislation and President Grover Cleveland signing the bill on June 29, the first Monday in September was designated “Labor Day.” This national holiday is a creation of the labor movement in the late 19th century and pays tribute to the social and economic achievements of workers in America.

Who Are We Celebrating?

159.8 million

The number of people age 16 and over in the nation’s labor force as of May 2017. Source: U.S. Bureau of Labor Statistics, Table A www.bls.gov/news.release/pdf/empsit.pdf

Our Jobs

Largest Occupations, May 2016                                                      Number of Employees

Retail salespersons                                                                                             4,528,550

Cashiers                                                                                                              3,541,010

Combined food preparation and serving workers,                                             3,426,090 

       including fast food

Office clerks, general                                                                                         2,955,550

Registered nurses                                                                                               2,857,180

Customer service representatives                                                                      2,707,040

Laborers and freight, stock and material movers, hand                                     2,587,900

Waiters and waitresses                                                                                       2,564,610

Secretaries and administrative assistants, except legal,                                     2,295,510

  medical and executive

General and operations managers                                                                      2,188,870 

Source: U.S. Bureau of Labor Statistics, Largest occupations in the United States, May 2016 www.bls.gov/oes/2016/may/area_emp_chart/area_emp_chart.htm

16.3 million

The number of wage and salary workers age 16 and over represented by a union in 2016. This group included both union members (14.6 million) and workers who reported no union affiliation but whose jobs were covered by a union contract (1.7 million). Among states, New York continued to have the highest union membership rate (23.6 percent), and South Carolina had the lowest rate (1.6 percent).

Source: U.S. Bureau of Labor Statistics, Economic News Releases

www.bls.gov/news.release/union2.nr0.htm

www.bls.gov/news.release/union2.t05.htm

15.3 million

The number of employed female workers age 16 and over in service occupations in 2015. Among male workers age 16 and over, 11.7 million were employed in service-related occupations. Source: U.S. Census Bureau, 2015 American Community Survey, Table C24010 https://factfinder.census.gov/bkmk/table/1.0/en/ACS/15_1YR/C24010

1.8%

The percentage increase in employment, or 143.7 million, in the United States between December 2015 and December 2016. In December 2016, the 344 U.S. counties with 75,000 or more jobs accounted for 72.8 percent of total U.S. employment and 78.1 percent of total wages. These 344 counties had a net job growth of 1.4 million over the year, which accounted for 80.7 percent of the overall U.S. employment increase. Source: U.S. Bureau of Labor Statistics, Economic News Release www.bls.gov/news.release/cewqtr.nr0.htm

Another Day, Another Dollar

$51,212 and $40,742

The 2015 real median earnings for male and female full-time, year-round workers, respectively. The 2015 real median household income of $56,516, an increase in real terms of 5.2 percent from the 2014 median of $53,718. This is the first annual increase in median household income since 2007, the year before the most recent recession. Source: U.S. Census Bureau, Income and Poverty in the United States: 2015www.census.gov/library/publications/2016/demo/p60-256.html

$77,166

The 2015 median Asian household income, the highest among race groups. The median income of non-Hispanic, white households was $62,950 and for black households it was $36,898. For Hispanic households the median income was $45,148. Source: U.S. Census Bureau, Income and Poverty in the United States: 2015 www.census.gov/library/publications/2016/demo/p60-256.html

Fastest Growing Jobs

108.0%

The projected percentage growth from 2014 to 2024 in the number of wind turbine service technicians (4,400 jobs in 2014), the projected fastest-growing occupation. Meanwhile, the occupation expected to add the greatest number of positions over this period is personal care aides (458,100). Source: U.S. Bureau of Labor Statistics, Table 1.3, Fastest growing occupations, 2014 and projected 2024, and Table 1.4, Occupations with the most job growth, 2014 and projected 2024 www.bls.gov/emp/ep_table_103.htm 

www.bls.gov/emp/ep_table_104.htm

Employee Benefits

90.1%

The percentage of full-time, year-round workers ages 19 to 64 covered by health insurance during all or part of 2015. Source: U.S. Census Bureau, Health Insurance Coverage in the United States: 2015 www.census.gov/content/dam/Census/library/publications/2016/demo/p60-257.pdf

Say Goodbye to Summer

Labor Day is celebrated by most workers in America as the symbolic end of the summer and the start of the back-to-school season.

25,027

The number of shoe stores for back-to-school shopping in 2015. Also catering to back-to-school needs were 28,910 family clothing stores; 7,885 department stores; 7,185 children and infants’ clothing stores; 6,475 office supply and stationery stores; and 6,870 book stores. Source: U.S. Census Bureau, 2015 County Business Patterns

https://factfinder.census.gov/bkmk/table/1.0/en/BP/2015/00A1//naics~448130|448140|448210|451211|4521|453210

21,890

The number of sporting goods stores nationwide in 2015. Examples of these types of stores include athletic uniform supply, fishing supply and exercise equipment, as well as bicycle and golf pro shops. In U.S. sports, college football teams usually play their first games the week before Labor Day, with the NFL traditionally playing its first game the Thursday following Labor Day. Source: U.S. Census Bureau, 2015 County Business Patterns, NAICS 451110 https://factfinder.census.gov/bkmk/table/1.0/en/BP/2015/00A1//naics~451110

51,045

The number of travel agents employed full time, year-round in the United States in 2015. In addition, there were 17,915 tour and travel guides employed full time, year-round nationwide. On a weekend intended to give U.S. workers a day of rest, many people climb into their drivers’ seats or board an airplane for a quick end of the summer getaway. Source: U.S. Census Bureau, 2015 American Community Survey, Table B24124

https://factfinder.census.gov/bkmk/table/1.0/en/ACS/15_1YR/B24124

921,654

The number of paid employees (for the pay period including March 12) who worked for a gasoline station in the United States in 2015. Oregon (11,003 paid gasoline station employees) and New Jersey (18,095 paid gasoline station employees) are the only states without self-service gasoline stations. Oregon was the first state to make Labor Day a holiday in February 1887. Source: U.S. Census Bureau, 2015 County Business Patterns, NAICS 447 https://factfinder.census.gov/bkmk/table/1.0/en/BP/2015/00A1/0100000US|0100000US.04000/naics~447

The Commute to Work

6.5 million

The number of commuters who left for work between midnight and 4:59 a.m. in 2015. They represented 4.6 percent of all commuters. The most common time was between 7 a.m. and 7:29 a.m. — with 20.9 million commuters. Source: U.S. Census Bureau, 2015 American Community Survey, Table B08132 https://factfinder.census.gov/bkmk/table/1.0/en/ACS/15_1YR/B08132

4.6%

The percentage of workers age 16 and over who worked at home in 2015. Source: U.S. Census Bureau, 2015 American Community Survey, Table B08128 https://factfinder.census.gov/bkmk/table/1.0/en/ACS/15_1YR/B08128

76.6%

The percentage of workers age 16 and over who drove alone to work in 2015. Another 9.0 percent carpooled and 0.6 percent biked to work. Source: U.S. Census Bureau, 2015 American Community Survey, Table S0801 https://factfinder.census.gov/bkmk/table/1.0/en/ACS/15_1YR/S0801

26.4 minutes

The average time it took workers in the United States to commute to work in 2015. New York (33.1 minutes) and Maryland (32.6 minutes) had the most time-consuming commutes. Source: U.S. Census Bureau, 2015 American Community Survey, Table R0801 https://factfinder.census.gov/bkmk/table/1.0/en/ACS/15_1YR/R0801.US01PRF

Weekly Question!

How will courts and hearing officers interpret Endrew F? #FAPE

Breaking: 77 Million Students Enrolled in Public School #public school

According to a study by the U. S. Census Bureau released on Monday, the number of people enrolled in America’s schools reached 77.2 million in 2016, according to the U.S. Census Bureau. Since 1996, total school enrollment has grown 9.9 percent.

Enrollment in kindergarten through eighth grade has not significantly changed during the past decade, increasing from 36.1 million in 2006 to 36.6 million a decade later. These 2016 figures show that non-Hispanic whites made up nearly 51 percent of all students in kindergarten through eighth grade, while Hispanic or Latino students made up 25.1 percent. Black students were 15.1 percent of the total; Asian students were 5.4 percent

The number enrolled in high school remained steady between 2011 and 2016, while full-time college enrollment (undergraduate and graduate) increased over the same time for men, women and all race groups. Full-time college enrollment in 2016 was 75.1 percent of all college enrollment, up from 70.0 percent in 2006 and 66.3 percent in 2000. 

Hispanic Enrollment

The number of Hispanic students at all levels of school has grown by 4.8 million in the past decade (2006 to 2016), and by 9.0 million since 1996. This represents a doubling of the Hispanic student population in the last 20 years, a 102 percent increase. 

“We’ve seen the number of Hispanic students enrolled in schools, colleges and universities in the United States double from 8.8 million to 17.9 million from 1996 to 2016,” said Kurt Bauman, Chief, Education and Social Stratification Branch. “Hispanic students now make up 22.7 percent of all people enrolled in school.”

The growth of Hispanic enrollment has been accompanied by a decline in high school dropout rates. In 1996, 34.5 percent of Hispanics ages 18 to 24 had not completed and were not enrolled in high school. By 2006 that rate had dropped to 26.2 percent, and in 2016 it was 9.9 percent, only 4 points higher than the national average of 6.4 percent. 

·        School enrollment of Hispanic students at all levels grew 36.3 percent in the 10 years from 2006 to 2016.

·        Hispanic college enrollment (undergraduate and graduate) grew 86.0 percent from 2006 to 2016.

·        Hispanic students make up 19.1 percent of all college students, up from 11.4 percent in 2006.

·        In 2016 Hispanics represented 22.7 percent of all students enrolled at all levels in 2016 and 19.1 percent of those enrolled in college. 

Private Enrollment Declines

Enrollment in private schools has declined by half a million over the past decade. Nursery school enrollment fell from 2.2 to 1.9 million, kindergarten enrollment declined by 123,000, elementary school enrollment dropped from 3.1 to 2.6 million, and high school enrollment dropped from 1.5 to 1.3 million. In contrast, private college enrollment grew from 3.8 to 4.2 million.

School Enrollment Tables

The updated tables  provide information by age, sex, race, Hispanic origin, family income, type of college, employment status, nativity, foreign-born parentage, attendance status (full or part time), type of school (public or private), and vocational course enrollment. They also delve into topics such as nursery school and kindergarten enrollment, the likelihood of enrollment in a grade appropriate for their age, and the percentage of young adults enrolled in college. 

School enrollment data are obtained from the Current Population Survey

 (CPS). The Current Population Survey is the primary source of labor force statistics for the population of the United States and is used to collect data for a variety of other studies that keep the nation informed of the economic and social well-being of its people.



You can review the data tables here.