WE’RE ZOOMING WITH THE DAWG THIS FRIDAY AT 10:00 A.M.!! I’LL BE JOINED BY SPECIAL GUEST SANDI TARSKI FROM OUR FIRM’S IRVING OFFICE. FREE TO ALL DAILY DAWG SUBCRIBERS—HOPE TO SEE YOU THERE!!
It’s possible for attorneys who represent the parents of students with disabilities to play “gotcha.” The law is an enabler of this inappropriate conduct. A recent court case from Washington D. C. provides an excellent example.
The story begins with the school holding an IEP Team meeting without the parent. That’s not supposed to happen, and was definitely an error by the school district. That’s what gave the parent’s attorney the opportunity to play “gotcha.” The attorney did not have to do that, of course. The attorney could have simply accepted the district’s immediate offer to re-convene the Team for another meeting. But the attorney saw an opportunity to score some points and recover fees from the district.
The court tells us that shortly after the parent-less IEP Team meeting the parent “hurdled over Defendant’s offers to meet again and sprinted to file an administrative due process complaint.” The court noted that it was “skeptical that this flurry of legal activity is for [the student’s] educational benefit. Rather, as Plaintiff’s counsel admitted before the hearing officer, [the parent] began pursuing legal remedies just eight days after the initial IEP meeting because “when a school district violates a parent’s rights….the parent has a right to have her attorneys fees paid.”
Gotcha.
The court held that it was an error for the district to have the meeting without the parent, but classified this as a procedural error. The parent failed to present any evidence of how this caused harm, and so the judge denied any relief.
The judge offered some insightful observations:
While DCPS should perhaps have worked harder back in January 2020 to find an IEP meeting time convenient to Plaintiff and her counsel, the price Defendant has paid in this prolonged litigation vastly outweighs any error it committed. It had to participate in an unnecessary due process hearing followed by a lawsuit that, in the accurate words of Magistrate Judge Harvey, “need not have been brought.” All along, the District has provided robust services to [the student] and has been willing to engage in IEP meetings, yet [the parent] has continued to press this litigation, requiring a substantial outlay of city and judicial resources. The Court can only conclude that a quest for attorneys fees has driven the action, which casts neither her nor her counsel in a favorable light.
Unfortunately, cases that involve “a quest for attorneys fees” based on the game of “gotcha” are all too common in special education. It’s a waste of resources and an abuse of a law that assumes that parents and schools can work collaboratively toward their common goal.
This one is Wade v. District of Columbia, decided by the federal court for the District of Columbia on August 18, 2021. It’s published in The Special Educator at 79 IDELR 133.
DAWG BONE: THE UNWRITTEN RULE: WHO IS BEING MORE REASONABLE HERE?
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Tomorrow: Toolbox Tuesday!!