D.C. Loses Appeal in Special -Ed Showdown

The District of Columbia lost yet another round today in a year-long battle with a special education lawyer over $1,752 in legal fees, when the U.S. Court of Appeals for the D.C. Circuit ruled that it was not entitled to sue for the money.

The dispute, now in its 14th month, began as part of what D.C. Attorney General Peter Nickles described as a pushback against the district’s aggressive special education bar. In its ruling today, the court delivered a sharp rebuke of the city’s legal argument in the case, saying it would discourage lawyers from taking on special education clients and “effectively block the one enforcement mechanism parents have when an educational agency drags its heels.”

The District filed suit in December 2008 against lawyer John Straus and his firm, Washington’s James E. Brown & Associates, who had represented a special needs student in his effort to get the public school system to pay for independent psychiatric testing. The school system eventually agreed to cover the tests, but Straus still pursued an administrative complaint to try and collect attorney’s fees from the District. The hearing judge dismissed the case, finding it was moot because the school system had already agreed to the student’s requests.

That’s when the District sued Straus. It alleged that by getting the complaint dismissed, the government became the “prevailing party” in the case, and should be allowed to recover its own costs. U.S. District Court Judge Richard Roberts of the District of Columbia disagreed, finding that city’s tactics would “punish plaintiffs who were right to complain about the wrongs the schools committed.”

The appeals court today affirmed Roberts’ ruling, finding that indeed, getting the case dismissed because the city had already taken steps to correct a problem was not the same as winning relief from a judge, which might have entitled the city to fees.

The city has brought several similar cases against special education lawyers. Nickles said that since suing Straus, the city has refined its strategy in the cases. He noted the District had won one such suit in July, and said that during the last ten months, the number of administrative due process complaints within the school system has dropped by 50%.

“I think bringing these cases has caused lawyers to think twice about bringing frivolous claims,” Nickles said.

Comments

[Dana]

Nickles isn't quite accurate when he states complaints have dropped because of frivolous filing. What has happended is the SHO is purposely setting hearings for dates way into the future so that DCPS can "fix" the problem before a hearing. DCPS, instead of testing children as it should, just authorizes to the parent to get the evaluations done after initial 120 days has passed. So a child that could have been helped four months ago, now has to wait another 3 months for independent testing, meanwhile another school year passes before the child even gets an IEP.

[Barry]

One would think that the District would realize that goal here is to help kids--not resist and resist and then fight over fees. Not everything has to be fought in an adversary setting.