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.